text
stringlengths 1
311k
| meta
dict |
|---|---|
36 F.2d 16 (1929)
GOLD
v.
UNITED STATES (two cases).
HUSTON
v.
SAME (two cases).
Nos. 8383-8386.
Circuit Court of Appeals, Eighth Circuit.
November 6, 1929.
*17 George W. Morgan, of St. Paul, Minn., and Abbott W. Sawyer, of Winona, Minn. (Leslie L. Brown, of Winona, Minn., Cleon Headley, of St. Paul, Minn., George D. Welles, of Toledo, Ohio, Stephen H. Somsen, of Winona, Minn., and Christian J. Laurisch, of Mankato, Minn., on the brief), for plaintiffs in error and appellants.
James A. Wharton, Asst. U. S. Atty., of St. Paul, Minn., and S. R. Rush, Sp. Asst. to the Atty. Gen. (Lewis L. Drill, U. S. Atty., of St. Paul, Minn., on the brief), for the United States.
Before STONE, BOOTH, and GARDNER, Circuit Judges.
BOOTH, Circuit Judge.
By separate writs of error and by separate appeals William H. Gold and Guy Huston seek to reverse a judgment of conviction against them for making use of the United States mail in violation of section 215 of the Criminal Code (18 USCA § 338).
The judgment against Gold was entered December 3, 1927, the judgment against Huston on December 5, 1927. On January 28, 1928, petitions for writs of error, accompanied by assignments of error, were filed by Gold and Huston respectively. On the same day orders were filed allowing the writs of error. Thereafter, on February 25, 1928, petitions for allowance of appeals were filed by the parties respectively, and orders were entered allowing the same.
Inasmuch as the act of Congress (45 Stat. 54, § 1, title 28, § 861a, U. S. C. [28 USCA § 861a]), abolishing writs of error and substituting appeals, was not approved until January 31, 1928, the proper method of review in these cases was by writ of error. The appeals are accordingly dismissed.
The indictment under which the two plaintiffs in error were convicted was filed in the court below on January 18, 1927. It contained 12 counts. The first count charged that William H. Gold, Glenn W. Gold, Donald W. Gold, William G. M. Smith, Guy Huston, and John E. Huston, on June 15, 1925, and prior thereto, did devise a scheme to obtain money and property from a certain class of persons, called "persons to be defrauded," by means of false and fraudulent pretenses, representations, and promises. It alleged further that it was a part of said scheme that certain of the documents and papers to be used in connection with said scheme should be transmitted through the United States mail. It alleged further that for the purpose of executing the scheme the defendants did on June 2, 1925, place a certain letter, postage prepaid, in the post office at Redwood Falls, Minn., addressed to the New York Joint Stock Land Bank, 61 Broadway, New York, N. Y.
Counts 2 to 10 were similar, but included the mailing of different letters.
Count 12 was based upon section 37 of the Criminal Code (18 USCA § 88), and charged that the defendants continuously from February *18 1, 1924, to October 5, 1925, at Redwood Falls, Minn., conspired to commit divers offenses against the United States, viz. violations of section 215 of the Criminal Code (18 USCA § 338), and among them the offenses charged in the preceding counts of the indictment; that thereafter the defendants to effect the object of the conspiracy, did do divers acts, to wit, not only the acts of placing letters in the post office of the United States at Redwood Falls, Minn., as charged in the preceding counts, but also certain other acts. Sixteen other acts are set out, some of them consisting of making use of the United States mail, others not.
Counts 1 and 12 of the indictment are set out in the margin.[1]
All of the defendants pleaded not guilty. They were tried together, the trial lasting between six and seven weeks. During the trial the government dismissed as to the defendant Smith. The jury acquitted defendants Glenn W. Gold, Donald W. Gold, and John E. Huston on each count of the indictment. William H. Gold was convicted on the first count and acquitted on the others. Guy Huston was convicted on the first 11 counts and acquitted on the twelfth. The present writs of error followed.
The record is voluminous, consisting of more than 2,500 printed pages. The assignments of error are very numerous. It will not be possible to discuss them in detail. They may be grouped, however, around a comparatively *19 few topics, and we shall take up such of these as we deem the more important.
I. Was the Evidence Sufficient to Sustain the Finding of the Devising of the Scheme Alleged in the Indictment?
(a) Prior History of the Southern Minnesota Joint Stock Land Bank.
The scheme is alleged to have been formed "on June 15, 1925, and prior." The first letter relied upon as having been mailed in execution of the scheme is dated June 23, 1924. The details of the alleged scheme centered around the Southern Minnesota Joint Stock Land Bank, hereafter sometimes called the Southern Minnesota Bank. It will therefore be helpful in examining the evidence as to the alleged scheme to know the prior history of this bank.
The Federal Farm Loan Act was passed July 17, 1916 (12 USCA § 641 et seq.). It provided for Federal Land Banks and Joint Stock Land Banks. Both were placed under the supervision of the Farm Loan Board. The Southern Minnesota Joint Stock Land Bank of Redwood Falls, Minnesota, obtained its charter from the Federal Farm Loan Board pursuant to the above act on June 25, 1919. The organizers of the bank were defendant William H. Gold, his brother J. A. *20 Gold of Big Stone City, South Dakota, and J. P. Cooper of Redwood Falls. The stock of the bank was originally $250,000 (2,500 shares, par value $100 each), of which J. A. Gold, his two sons, and two others of Big Stone took $125,000; defendants William H. Gold and Glenn W. Gold, his son, and J. P. Cooper took $125,000. All of the stock was paid for in cash. The bank was authorized to do business in Minnesota and South Dakota. Prior to the formation of the bank the defendant William H. Gold and J. P. Cooper had been in the business of making farm loans at Redwood Falls.
The practical working of a joint stock land bank, as described by one of the government witnesses, is, we think, substantially correct. He testified as follows:
"Neither Federal nor Joint Stock Banks are banks of deposit. They are not commercial banks; they are simply a means for making loans for agriculture along the lines provided by Congress."
"Before any loan is made, there must be an application for a loan from the borrower. The law requires such application and does not require it to be sworn to, but this bank did so require. That application states the *21 amount of land, kind of land, how farmed, number of acres in crops, number of acres rough land, and the applicant's estimate of value, and a very great mass of information. The Southern Minnesota Joint Stock Land Bank required this application to be signed and sworn to by the applicant himself before the bank would do anything about the loan at all.
"The application comes into the bank and is usually checked over roughly by someone in charge of loans in the bank. If he finds it isn't in territory where they want to operate, or can see it is a loan he doesn't want, or it is not in proper form, then it goes back, refused, or to be put in form. Then it is given to a Federal Appraiser who goes out and personally inspects the land. This appraiser, under the law, is appointed by the Federal Farm Loan Board, itself works under regulations and rules given him by the Farm Loan Board, is responsible to the Farm Loan Board, but is carried on the payroll of the bank. The Board directs him how to do his work, and if he does not comply with the rules and regulations of the Farm Loan Board, or proves himself incompetent, then the power to remove him is in the Board, *22 which has the right to hire and fire him. That appraiser is responsible to nobody, but the Farm Loan Board.
"The Federal Appraiser personally inspects the farm and character of the applicant, and reports back, covering in detail a large number of questions with reference to the land, and the loan, and the man asking for it, and in that report the appraiser is required to make a statement, or recommendation, as to how much he considers should be loaned on that application, if any."
"After the appraiser's report is made, the application goes to the Loan Committee or directors of the bank, who have to pass on these loans, who can cut down or reject as to the amount recommended by the appraiser, but cannot allow a higher amount.
"The law requires satisfactory title [or] which may be by abstract, insurance certificate or Torrens certificate; the title must be certified to be good by an attorney.
"After the application has passed through the foregoing procedure, the loan papers are made out, note and mortgage, mortgage recorded, recording shown on the abstract. The abstract then goes back to the attorney for his certificate, and having gotten all that done, the bank can give the money to the borrower."
In regard to bonds issued against these mortgages, the witness said:
"In depositing mortgages with the Registrar as security for bonds, the mortgages must be assigned to the Registrar, and bonds can be issued against them after securing approval of the security by the Federal Farm Loan Board. If they are approved mortgages, you may borrow up to their face. The bonds may be sold at par, or at premium, or at a loss, if the Farm Loan Board approves. The law allows the bank a difference of one per cent. between the amount of interest the bank pays on its bonds and what it gets on the mortgages, provided the mortgage rate must not exceed 6 per cent. By the machinery that Congress has provided, by the Farm Loan Act, a bank with a capital of a quarter of a million dollars to start with, by loaning and putting up mortgages, borrowing on bonds, and loaning again, and repeating this process, can loan not only the original capital, but the original capital, and fifteen times more.
"As to the profits of the bank, assuming that there would be no expense of operation and no loss, if the bank loaned out all its capital at 6 per cent., it would produce an income of 6 per cent. on the capital, and on each of the 15 times that mortgages were put on farms the bank would get a spread of 1 per cent., which would make 21 per cent. on the capital, if there were no expenses or loss and everything is loaned out at the maximum rate. After a surplus has been provided in addition to the capital, bonds can be issued against the surplus, as well as the capital, in that case, the bank could have the advantage of issuing bonds to the extent of 15 times their surplus, as well as their capital, and if the bank got its surplus up to where it was 20 per cent. of the total capital, that would increase the return on the par value of the stock 20 per cent., so that, if the bank had a surplus of $20 a share, the bank would get a return of not only the original 21 per cent., but 20 per cent. of that, which would be, roughly, $5 more, making about 26 per cent., if there was no expense and no loss. That was the plan devised by Congress and put into operation in this law."
"Against the 21 per cent. must be figured expenses, losses, and the reserve required.
"The law requires the bank to carry to reserve 25 per cent. of its net earnings each six months until the reserve amounts to 20 per cent. of the capital of the bank, and thereafter 5 per cent. of the net earnings must go to reserve once a year. The money put into reserve is available to loan to borrowers.
"As to expansion of capital stock, after the bank has loaned its capital and has issued bonds up to 15 times that amount, the bank can only make additional loans as fast as borrowers pay; it cannot issue any more bonds against the mortgages until more stock is sold. If the bank wants to go on serving the community, if there are people that want to borrow money on these favorable terms, the bank must issue more stock and the law provides for that. Such stock is sold to any one who wants to buy it, and the proceeds of the stock loaned out and the bonds issued against mortgages the same as before."
"In Joint Stock Land Banks, borrowers are not compelled to take stock, but may, if they wish."
"As to the powers of the Farm Loan Board, no loan can be put up with the Registrar unless it has been passed by a Federal Appraiser and approved by the Farm Loan Board; a bank cannot issue any stock unless and until that Board approves the issue. The bank cannot issue bonds except with the approval of that Board."
The Southern Minnesota Joint Stock Land Bank started in business. Appraisers were appointed by the Farm Loan Board to make appraisals for the bank. By November, 1919, it had nearly $2,000,000 loans on its books. By January 1, 1920, it had about $2,820,000. In the fall of 1919 an *23 attack was made in the courts on the constitutionality of the Farm Loan Act. This made it difficult for the bank to sell its bonds, but it used them as collateral for money borrowed from banks in order to complete mortgage loans already begun. In December, 1919, it stopped making loans and canceled about $4,000,000 of applications. The expenses of the bank were reduced, but it ran at a loss down to the fall of 1921. Assessments were made upon the stockholders to meet the deficit. After the Farm Loan Act was held constitutional by the Supreme Court in 1921, the bank again began the sale of its bonds. Upwards of $2,000,000 were sold by February, 1922. About $700,000 loans were made between January 1 and May 1, 1922, when the capital stock limitations were reached. Loans then outstanding were approximately $3,750,000.
The Southern Minnesota Joint Stock Land Bank was a member of the American Association of Joint Stock Land Banks. In attending the meetings of that association William H. Gold had become acquainted with defendant Guy Huston, who was president of the association, and who had been instrumental in building up the Chicago Joint Stock Land Bank. The Southern Minnesota Bank had not been able to sell its bonds at as favorable a figure as the Chicago Bank had sold its own bonds. Mr. Gold and his associates in the Southern Minnesota Bank in the spring of 1922 thought some of liquidating the bank. Mr. Huston had in mind the organization of another Joint Stock Land Bank in Minnesota. The outcome of the situation was that a contract was made between the Southern Minnesota Bank and Mr. Huston June 19, 1922. It was afterward assigned to the Guy Huston Company. The contract recited,
"Whereas said Bank is desirous of making arrangements for the sale as hereinafter provided of Ten Thousand (10,000) shares of its capital stock of the par value of One Hundred Dollars ($100) per share, to be hereafter issued, and for the sale of its issues of bonds to the aggregate principal amount of Fifteen Million Dollars ($15,000,000) to be hereafter issued."
The contract appointed Huston sole representative of the bank to sell the stock and bonds mentioned; it provided that Huston should buy 1,000 shares of the stock at 115 per share and should use his best efforts to sell the remaining 9,000 shares at 115, and to retain as his compensation any excess of price over 115, except that as to the second half of the 10,000 shares his profit, if any, should be divided equally with the bank. The bonds were to be sold at the best price obtainable, but at a price to net the bank at least 101, unless the bank and Huston should agree on a lesser price. Huston was to get $10 for each $1,000 bond sold, payable one-tenth each year for 10 years. In addition, Huston was to have $20 for each bond as sale costs. On the second one-half of the $15,000,000 bonds he was to receive not more than one-fourth of 1 per cent. profit in any case.
The contract further provided that Huston might buy all of the stock and bonds at a price equal to the best obtainable elsewhere. The contract was to remain in force until all of the stock and bonds were sold, but the stock was to be sold by January 1, 1924. If the stock was not taken up as the needs of the bank expanded, demand might be made on Huston on September 1, 1922, or any time thereafter to take up 500 shares per month. The bank agreed not to make any contract for the sale of stock or bonds until the 10,000 shares of stock and the $15,000,000 bonds were sold, unless by written consent of Huston.
Huston sold all but $1,500,000 of the bonds and all but 1500 shares of the stock before the contract of 1922 was canceled by agreement in December, 1923. This cancellation contract was made to enable the bank to carry out an arrangement with J. S. Bache & Co. to handle the sale of its stock in connection with the merger of the Southern Minnesota Bank and the First Joint Stock Land Bank of Minneapolis, hereinafter mentioned. The cancellation contract with Huston was made effective in April or May, 1923, although not signed until December, 1923. This cancellation contract recited that there would become due to Guy Huston Company the sum of $150,000 upon completion of the contract of June, 1922, and the Southern Minnesota Bank in consideration of the cancellation of the contract promised to pay said sum in twenty semiannual installments of $7,500 each, commencing July, 1924.
The Minneapolis Joint Stock Land Bank, above mentioned, was organized under the same act as the Southern Minnesota Bank, and had 100,000 shares of $5 each. Two or more men, referred to as the Strausses, owned 53,000 shares. Owing to the death of one of these men, this block of stock was for sale. William H. Gold made an examination of the assets of the Minneapolis Bank and found its loans of good quality. The bank had $6,500,000 of first mortgage loans. It operated in the same territory as the Southern Minnesota Bank. Negotiations for the sale of the Minneapolis Bank were carried on, not only with Mr. Gold, but also with certain interests *24 which controlled the Des Moines Joint Stock Land Bank. Mr. Huston was identified with those interests. Finally, on May 22, 1923, the purchase of the Minneapolis Bank was made by the Southern Minnesota Bank. The merger was approved by the Farm Loan Board. Part of the stock of the Minneapolis Bank was obtained by exchange for the stock of the Southern Minnesota Bank. Part of the stockholders of the Minneapolis Bank wished cash. Five thousand shares of the stock of the Southern Minnesota Bank were issued, known as merger stock. Money to pay for the Minneapolis Bank stock, which was to be paid for in cash, was raised by William H. Gold and other officers of the Southern Minnesota Bank by negotiating their personal notes, secured by the Minneapolis Bank stock, with banks in New York and Chicago. Later this Minneapolis Bank stock collateral was replaced by merger stock of the Southern Minnesota Bank. This stock of the Southern Minnesota Bank used as collateral, known as merger stock, was carried in the names of William H. Gold and other officers of the bank, instead of by the bank itself, on the advice of the Farm Loan Commissioner.
Guy Huston had nothing to do with bringing about the merger of the Minneapolis Bank and the Southern Minnesota Bank.
This merger stock, so carried by some of the officers of the Southern Minnesota Bank, was sold later, partly through J. S. Bache & Co. and partly through Guy Huston Company. The expense of selling this merger stock and of clearing the secondary market was reimbursed by the Southern Minnesota Bank to the officers and persons who had carried the stock for the bank, by the payment of dividends on the stock while it was so carried.
The situation of the Southern Minnesota Bank in the Spring of 1924 was about as follows: It had paid dividends of 8 per cent. per annum from July 1, 1922, to January, 1923; 9 per cent. from January 1, 1923. It had made loans as follows:
1919 ........................... $2,839,850
1920 ........................... 6,000
1921 ........................... 154,500
1922 ........................... 8,214,600
1923 ........................... 8,779,600
These figures do not include the loans taken over from the Minneapolis Bank of upwards of $6,000,000. These loans had been taken in accordance with the Farm Loan Act and under the safeguards therein provided. It had carried through a successful merger with the Minneapolis Bank. Its capital stock was $1,800,000. The sale of its stock and bonds after the termination of the 1922 contract with Mr. Huston was much less successful than it had been under that contract. There existed some delinquencies.
Delinquent interest on farm loans .. $261,830.00
Lands acquired ..................... 212,145.69
Tax certificates ................... 122,099.96
But they were not unusually large in comparison with the volume of business done. Such was the condition of the bank at the time of the alleged making of the scheme to defraud.
(b) Outline of the Alleged Scheme to Defraud.
The main parts of the scheme as set out in count 1 of the indictment were:
That William H. Gold should be president of the Southern Minnesota Bank; Glenn W. Gold, Donald W. Gold, and William G. M. Smith, vice presidents; that the same parties and Guy Huston and John E. Huston should be directors; that the Guy Huston Company should be the fiscal agency of the bank for the sale of its stock and bonds, and for sending out letters quoting false and fictitious prices on the securities.
That there should be formed a corporation to be known as the Farmers Fund, Incorporated, for the pretended purpose of dealing in real estate and personal property, but in fact for taking the title to lands which had been acquired by the bank, thereby causing the assets of the bank falsely to appear to be in a liquid condition and the bank to appear to be in a better condition than it in fact was.
That the stock of the bank should be increased from 18,000 shares to 30,000 shares.
That false representations should be made to the Farm Loan Board that the business of the bank required the increase of the stock as a basis for the further issuance and sale of bonds as provided by the Farm Loan Act.
That the Guy Huston Company should arrange with various brokerage firms to furnish them with the new stock of the bank, to be sold to the "persons to be defrauded, at a price of not less than $158.50 per share, which said price per share was largely in excess of the yield value of said stock," and known by defendants so to be; that this was done for the purpose of appropriating to the use of defendants and divers other parties a large share of the proceeds of the sales.
That the defendants should make representations to the "persons to be defrauded" in the following particulars, all of which were false to the knowledge of the defendants:
(1) That the bank was earning large sums of money; that the bank would pay large dividends out of profits; that the purchase of *25 the stock of the bank would be a safe and profitable investment; that a dividend of 10 per cent. per annum would be paid; that the stock would greatly increase in value;
(2) That the investments of the bank would be restricted to banking property, government and Land Bank bonds, long term first mortgages on agricultural land not exceeding 50 per cent. of the land value and 20 per cent. of the improvements, and subject to other restrictions as provided by the Farm Loan Act.
(c) The Huston Contract of 1924.
The appointment of the Guy Huston Company as the fiscal agency of the bank was accomplished by the contract dated May 15, 1924, and adopted by the board of directors of the bank June 16, 1924. The contract recited that the bank proposed to issue and sell additional shares of its capital stock, and that the Guy Huston Company had theretofore sold stock and bonds for the bank in a manner satisfactory to the bank. The contract appointed the Guy Huston Company sole and exclusive representative of the bank for the sale of its stock which it proposed to issue, and for the sale of its bonds to be issued. Section 2 of the contract provided that the Guy Huston Company should use its best efforts to sell the stock at such prices as the parties deemed for the best interests of the bank. Section 3 provided that the bonds should be sold at such prices as the parties deemed advisable, but at a price which would net the bank not less than 101 (unless the parties agreed to a sale at a less price). Sections 4, 5, and 6 read as follows:
"4. The said second party shall be entitled for its compensation for services rendered in negotiating the sale of stock, at the rate of two and one-half dollars ($2.50) per share for each share sold hereunder, but this shall apply only to stock issued in addition to the eighteen thousand (18,000) shares now outstanding, and stock cancelled and reissued shall not be considered as new stock; said compensation of two and one-half dollars ($2.50) per share on new stock shall be due and payable when stock is issued and has been paid for.
"5. The said second party shall be entitled for its compensation for services rendered in negotiating the sale of bonds, at the rate of two and one-half dollars ($2.50) for each one thousand dollar bond sold by it hereunder. Bonds sold to refund outstanding bonds to be considered the same as new issued. The compensation for the sale of each bond to be paid at the time of sale.
"6. The second party is hereby authorized to purchase any or all of said shares of stock or any or all of said bonds, or to sell the same to others, either in its own name or in the name of the said Bank, the said shares of stock to be purchased by the second party at a price as provided for in section 2, and the said bonds to be purchased by the second party at a price equal to the best price then obtainable therefor from others as aforesaid, provided that the second party shall be entitled to compensation as provided in sections 4 and 5."
Section 10 provided in part as follows:
"* * * If the Guy Huston Company shall fail to secure the sale of the stocks and bonds of the Bank as herein provided within ninety (90) days after being requested so to do by the Bank, at the end of such ninety (90) days the Bank shall be free to employ the services of others to perform such services with respect to such sale without any accountability to the Guy Huston Company for the compensation [hereinafter] in paragraphs 4 and 5 hereof mentioned with respect to the bonds and stock so sold."
Section 12 provided in part as follows:
"12. The Guy Huston Company * * * shall have the right to make field inspections * * * and if the second party shall find that excessive or improper loans are being carried, steps shall be immediately taken to correct such conditions, even to the extent of discharging such person or persons responsible therefor."
Section 13 provided that the contract should remain in force for 20 years from May 15, 1924, unless previously terminated by mutual consent.
There is nothing on the face of the contract which indicates fraud, or any intention on the part of the parties thereto to defraud. On the contrary, the provisions of sections 12 and 13 tend to negative the idea that the contract was part of a scheme to defraud.
It was generally agreed by parties interested in the bank that a fiscal agency was necessary. The experience of the bank since the termination of the former Huston contract tended to prove such necessity.
R. A. Cooper, who was Farm Loan Commissioner at that time, testified as follows:
"I think a fiscal agent for a bank of this character is very necessary, if it is going to do business in considerable volume.
"In the first place, you need some one who is familiar with the technique, you might say, of investment banking, to distribute your securities to the best advantage. Then, with *26 any bank that issues bonds in considerable volume, you find a great many purchasers who desire to change their investments, and your securities will come back into what they call the secondary market. Unless you have some one to repurchase those bonds and redistribute them to bona fide investors, you will have a very unsatisfactory market in the making of new offers.
"If you do not have some one to take care of that secondary market, the bank will be offering a new issue when its older issues are being offered to new purchasers; the effect will be to depress the market in those particular securities below the actual intrinsic value those securities should have. This is true of both bonds and stocks, for the same reasons. This matter of protecting the secondary market is essential both for joint stock land banks and federal land banks."
W. A. Streater of Mankato, Minn., one of the directors of the Southern Minnesota Bank at the time, and who had been placed on the board at the instance of the Northern Trust Company of Chicago, and who made reports to that company from time to time, testified as follows:
"I was a director of the Land Bank at the time the 1924 contract was made with Mr. Huston, and was in favor of it, for the reason that in my opinion it would give the bank an outlet for its securities, and by so doing would furnish the bank with loanable funds."
William H. Gold, one of the defendants, wrote to Mr. Landes, member of the Farm Loan Board, November 26, 1924, as follows:
"This Bank undertook to handle its own stock and bonds direct with bond houses, who apparently were not giving us adequate protection and not furnishing a substantial secondary market. Arrangements were then made with the Guy Huston Company of New York. $25,000 was placed in his hands with the understanding that he at all times would furnish us with a list of Joint Stock Land Banks bonds, either our own or on other Joint Stock Land Banks carried with these funds, and they stand ready at all times to do this.
"The advantages accruing to our Bank by virtue of the contract with the Guy Huston Company are already very apparent. The market for our bonds is stiffening every day and when the Bank gets ready to dispose of its bonds we are confident that it will gain at least 1% over and above what could have been secured direct from the bond houses.
"The small commission received by Guy Huston Company will be exceeded many times by the premiums accruing to the Bank in the sale of both its stocks and bonds in the future. Actual experience has demonstrated this."
(d) The Farmers Fund, Incorporated.
Prior to June, 1924, the Southern Minnesota Bank had acquired certain lands in the course of its operation, by foreclosure of mortgages and otherwise. This was due in large part to the depression in agriculture which existed from 1921 to 1924. The officers of the bank thought that these lands should be disposed of to a separate corporation and handled by it. The matter was taken up with members of the Farm Loan Board, and the plan of the separate corporation was approved by them. Accordingly, the Farmers Fund, Incorporated, was formed May 15, 1925, with a capital of $100,000. The lands owned by the Southern Minnesota Bank were conveyed to it for a cash consideration of $75,000, and mortgages taken back covering the full amount of the mortgage loans originally made upon the lands by the Southern Minnesota Bank, together with all costs and disbursements. In addition, the Golds and Guy Huston gave bonds in the total sum of $100,000 to cover any possible loss which might be sustained by the Farmers Fund, Incorporated, in connection with the transfers of said real estate. That this plan of having a separate corporation take over the lands thus held by the bank was a very common one, the court will take judicial notice; that the plan was approved by members of the Farm Loan Board, and that it was for the best interest of the bank, is established by the uncontroverted evidence.
The government contends that the formation of the Farmers Fund, Incorporated, was a mere subterfuge; that whatever capital it had was furnished by the Southern Minnesota Bank. A careful examination of the evidence convinces that the capital was furnished by Guy Huston $75,000 in cash and $25,000 in credit on the books of the Guy Huston Company; $15,000 of this credit was shortly paid over; that the stock of this corporation was taken and owned by him with a double liability attached; that the transaction was bona fide and without the intention on the part of any one to defraud; that later on, when the Farmers Fund, Incorporated, was taken over by the Farms Company of Massachusetts, and it became necessary to increase the capitalization, $135,000 more was furnished for that purpose by Guy Huston. In return he took B stock in the Farms Company of Massachusetts, an issue subordinate to the A stock. That one of the *27 purposes in forming the Farmers Fund, Incorporated, was to transform certain non-liquid assets of the Southern Minnesota Bank into liquid assets, is clear from the evidence; that the purpose was accomplished is also clear; and that such purpose was legitimate and without intent to defraud any one, is equally clear. The record, when analyzed, furnishes no substantial evidence to the contrary of these conclusions.
(e) Increase of the Stock of the Bank.
On February 10, 1925, the board of directors and the stockholders at their respective meetings authorized an increase of stock from $1,800,000 to $3,000,000; i. e., 12,000 shares. At that time the bank had made loans amounting to $26,900,000 in round numbers. It still had a leeway for making loans of $1,500,000, and it had applications for loans equal to that amount. Clearly, if the bank was to expand its business, an increase of stock was necessary as a basis for an issue of further bonds. The Farm Loan Board knew of the proposed issue of stock. Commissioner Cooper testified:
"I discussed with W. H. Gold, on one occasion that I recall, and also with Mr. Huston, the matter of increasing the capital stock of the Southern Minnesota Bank. I think that began in 1924."
"After these conversations with Mr. Gold and Mr. Huston, the capital stock of this bank was increased. At those conversations, I knew the bank had acquired some land, and believed it would have to take on more. I told Mr. Gold I thought it would be advisable to increase his capital stock, so he could take care of all good applications that I believed at that time were available to the bank.
"I had on my desk at the time, which I think I either showed him or told him about, a report covering this territory, and particularly the territory in which the Southern Minnesota Bank was operating, which showed that during a period of four or five months previous, mortgage loans in the sum of about $19,000,000 had been made by companies other than Federal or Joint Stock Land Banks, and that made me believe that there must be available here good business which the bank could take, if it had the necessary capital and was able to sell those bonds, and which it would be desirable for the bank to do."
As far back as July, 1924, W. H. Gold had favored an increase of stock. Early in 1925 it was the opinion of the Golds that they could make loans amounting to $15,000,000 within the next two years. Glenn Gold testified as follows:
"In early 1925, the Southern Minnesota Bank had not loaned up to 15 times its capital within about $1,500,000.00. In April, 1925, we had sold so many bonds that $40,000.00 of stock had to be paid in so the bank could finish delivering the $2,000,000.00 of bonds to the Guy Huston Company, that they had sold for them. Some time in April, 1925, the bank had loaned as far as it could, without selling more stock, except for such money as would be paid in on mortgages."
"On February 28, 1925, the bank reports to the Farm Loan Board, the bank reports applications awaiting closing $889,000.00. On April 30, 1925, the bank had, awaiting closing, $751,000.00, and on May 31, 1925, $686,000.00. $407,000.00 worth of applications were received during May. Of course, there would be a considerable weeding out on that. We were not making that many loans, because that list would be pruned."
"If the bond market remained in the condition it was at that time, the capital could be loaned out during the balance of the year 1925 and 1926."
"Q. You are speaking about this new issue of stock, this 11,000 share issue? A. Yes, the 11,000 share issue."
"The bond market was in good condition at that time, and the stock market also in good condition to sell stock, and there was a demand in the field for the loans this bank could make. In order to extend, in an efficient way, as it should be done, there should be three things working together, a good stock market, so the stock will bring the price it ought to; a good bond market, so the bonds can be sold on favorable terms; and a good demand for loans. All three of those elements were present during May and June, 1925, when this stock was issued."
William G. M. Smith, a director and one of the defendants who was acquitted, testified relative to the increase of stock as follows:
"Prior to this time the bank would take on an organization to handle a good line of loans and just about the time that this organization was going in good shape, they would be either unable to dispose of the stocks or bonds, and the result was that their organization would have to be cut and slowed up, and they were unable to keep up the best cont[r]act with their correspondents. The figures were submitted at that time, showing that the potential loan field in which we were working was, oh, I should say, would absorb five or six times the amount of the bonds issued and stock."
*28 Mr. Streater, another director, testified as follows:
"I voted for * * * the expansion of the bank, in the year 1925, the issuing of the new stock that was issued that year. I was not very enthusiastic about as large an expansion, but I did approve it and voted for it. I believed that there was a very fair volume of applications for loans available."
"I knew of the depression that has been described here, between the years 1921 and 1924. In the latter part of 1924, and early part of 1925, it was my opinion that conditions were gradually improving, and that was one of the things I took into consideration in voting for that increase in stock."
"I thought the sale of that stock and the making of loans, based on that stock, and in general the future of the bank would work out well, and I voted for it."
Mr. Huston testified:
"I was getting reports from Washington daily, almost, of the splendid condition of the crops through this territory, through the whole corn belt, as a matter of fact. And the corn was worth $1.25 then, and we were figuring on its going higher. The Department of Agriculture was very enthusiastic on that at that time. The election was over and the economists were saying that we were going to have six to ten years of the greatest era of prosperity that America had ever known."
"I came to Chicago, and visited the Federal Reserve Bank, and all the other banks, that have country correspondents through this community. I had gone to the Metropolitan Life Insurance Company, in Newark, N. J., and visited the vice president that has charge of the farm mortgages.
"When I arrived in Chicago I visited the office there of their farm mortgage department, handling this section through here, and they were telling me of the general comeback and the soundness of values, and I was tremendously surprised when they told me that they had advanced their general loaning rate per acre approximately 20 per cent. in southern Minnesota."
"I made a very thorough investigation, and every one was so sure that the bottom had been reached, and that the turn had come, that there remained practically no doubt in my mind that the situation had definitely turned. I was furnished from Des Moines, a list of more than 200 farms that had sold for over $200 an acre in the last 30 days, at that time. * * * I could not find any one but that was sure that things were coming right. Then I saw Mr. Gold and talked about the increase in stock of the bank, and I told him that I thought this was the time to increase the stock; that the market was in such condition that stock would sell. I felt that bonds would be of a much better price, and that we had the market in very good shape for the bonds, having sold $2,000,000 at approximately one point, or half a point to a full point above the general level of the market on Joint Stock Land Bank bonds at that time. The general stock market was getting lots better. The general level of stocks was 10 to 20 points above what it had been 12 months before, all of which were favorable indications."
All of these men were mistaken in the views they held early in 1925 as to the outlook for the future business prosperity of the bank. They did not foresee the agricultural depression which set in during 1926. Nor did they foresee the change in policy soon to be made by the Farm Loan Board in regard to the payment of dividends and in regard to the handling of lands acquired under foreclosure. But in passing upon the guilt or innocence of these defendants, in respect to this increase of stock, due consideration must be given to the facts and circumstances as they saw them in 1925. Erroneous judgment may be as consistent with good intentions as with bad. And in this matter of the increase of stock, we think the record fails to show any substantial evidence of bad faith or intent to defraud on the part of the defendants. At most, the evidence shows erroneous judgment on their part when considered in the light of subsequent events.
(f) The Sale of the Stock and the Alleged Fraudulent Representations in Connection Therewith.
Of the 12,000 shares of stock of the new issue 1,000 shares were sold to Guy Huston Company in April, 1925, at 133, to net the bank 120 and accrued dividends. The government does not claim any false representations in regard to this sale, though criticism is offered of it in other respects. The remaining 11,000 shares were bought by Guy Huston Company at 140 net to the bank, according to the contention of the defendants. The government contends that there was no sale to the Guy Huston Company, but that the stock was sold to the public through Guy Huston Company as fiscal agent of the bank, and that Guy Huston Company appropriated part of the proceeds of the sale which should have gone to the bank. The government contends further that in connection with the sale of the stock to the public various false representations were made by the defendants.
Inasmuch as the contention of the government *29 that there was not a sale to Guy Huston Company has but an indirect bearing upon the main question involved in the case, we shall not discuss it at length, but simply state that in our opinion the evidence conclusively shows that the sale of the stock was made by the Southern Minnesota Bank direct to the Guy Huston Company, and by it in turn was sold through various syndicates to the public; that the profit made by Guy Huston Company was not inordinate, nor was the price paid for the stock by the public excessive, when due consideration is given to the facts, and to surrounding circumstances as they appeared at the time.
The alleged false representations relied upon by the government in connection with the sale of the stock to the public are largely contained in a printed circular (Exhibit 100 substituted), copies of which were distributed in the latter part of May, 1925, through various brokers by mail and otherwise to investors interested in stocks. The alleged false representation most largely relied upon by the government is found in the following statement contained in the circular:
"Dividends: The initial dividend was declared as of July 1, 1922, at 8%. In January, 1923, the rate was increased to 9% and in May, 1925, the board of directors announced that the dividend rate of the capital stock had been increased from 9 to 10 per cent. The increase to be effective July 1, the first quarterly dividend of $2.50 per share will be paid October 1, 1925."
It is the contention of the government that this statement is a representation not only as to the actual payment of past dividends, but also a representation that such dividends had been earned. This contention as to the meaning of the statement is conceded by the defendants. There is no claim that the dividends were not in fact paid as stated; but the question remains whether such dividends had been earned. The books of the bank were kept on what is known as the accrual basis, but the government contends that in determining whether dividends had been earned the books should be considered on the cash basis. However, the government witness McHale testified as follows:
"Q. The Farm Loan Board always has required these joint stock land banks to keep their books on an accrual basis so that these books, in choosing the accrual basis system, were being kept on the system that the Farm Loan Board directed all the time this bank was in operation? A. Yes, sir.
"Q. And the Farm Loan Board in figuring whether dividends have been earned or not, during all the period since organization of this bank, have based their figures on an accrual basis, rather than a cash basis, haven't they? A. The Farm Loan Board, in figuring dividends to be paid, yes, sir.
"Q. So in figuring on an accrual basis here, you are figuring on the basis that was authorized and directed and continuously used, and the only method that was ever used by the Farm Loan Board itself? A. Yes, sir."
Mr. McHale, after an exhaustive examination of the books of the bank, testified that the showing from the books on the accrual basis was as follows:
"That sum of $426,494.99 is the total sum from organization to June 30, 1925, which was available from earnings for distribution as dividends. The total amount of dividends declared and paid in that same period was $483,125.00, leaving a net deficit of $56,630.01. In other words, they had paid $56,630.01 more in dividends than was available from the net earnings for the payment of dividends."
In reaching this conclusion Mr. McHale did not use the premiums received by the bank on stock sold during the period in question in making his set-up of the legal reserve of the bank. He took instead the sum of $145,334.95 from earnings to fill the reserve. He testified, however, that if it was proper to use premiums on stock to fill up the reserve, thereby relieving the net earnings to that extent, then the books of the bank showed more than enough earnings to pay all the dividends. The question and answer were as follows:
"Q. Well, now, so there will be no question if it be true that stock premiums can be used to fill up the legal reserve, and if it be true that the amount of net earnings which would then remain in the bank's account, could be under the law applied to dividends, then this bank had in its net earnings account, enough to pay all dividends that it ever paid, and $88,704.94 besides? A. I assume that would be correct."
Furthermore, Mr. McHale in his tabulation did not allow stock premiums to be used in paying the cost of getting new business. The uncontradicted testimony showed that it was the custom of Joint Stock Land Banks to use stock premiums to build up their reserve and to pay for the cost of new business; that this question had been up before the Farm Loan Board and that the banks were told that the Board would not object to such use. Whether such use of the stock premiums was in accordance with law, we are not called upon to decide. The court below in the course *30 of the trial took the view that it was not, but later charged the jury that such use was legal. What we do decide is that, in view of the facts and circumstances disclosed in the instant case, such use of stock premiums cannot be said to be unwarranted and without reasonable basis; that defendants believed that all dividends had been paid out of earnings; that when such use is recognized in calculating the amount of net earnings properly allocated to dividends, the uncontradicted evidence shows that all dividends paid up to June, 1925, had in fact been paid out of net earnings; and that there was no false representations in reference to such payments.
It is further contended by the government that the statement in the circular (Exhibit 100 substituted), that beginning July 1, 1925, the dividends on the stock would be 10 per cent., was a false representation as to the earning power of the stock. We lay to one side the possible answer to this contention: That the statement was as to an expectation rather than as to a fact. We take up the question whether the defendants honestly believed that future dividends of 10 per cent. would be paid, and whether they had reasonable grounds for the belief. Glenn Gold, one of the defendants, testified:
"There was no question in our minds at all that, the minute that we got out those bonds and mortgages under that new stock issue, that we would be earning our full 10 per cent. very easily.
"Q. And what was the opinion and belief of yourself, and the other officers of the bank at that time, May 12th, and in June, 1925, as to whether or not that the Southern Minnesota Bank had actually earned, and was able to pay all the dividends that it had paid in the past? A. We knew that it had earned it."
And again:
"Q. Now, there would be a period I am assuming now that the farm depression had not dropped back again in 1925, in the fall, and 1926, in the spring if things had turned the corner, and gone on normally, would there have been a period between the time that this stock was sold and the time that you got the full 15 times bonds behind it, where the earning of your bank would not be so great as it would be later, when the 15 times bonds got behind the stock? A. Yes, sir; they would have been.
"Q. And did you men, you officers of the bank, consider as to how as to whether the bank was going to have enough earnings and assets on hand to take care of the 10 per cent. dividend during that period? A. We took that into consideration, and figured on that."
He gave in detail the figures on which he based his belief.
William H. Gold testified that the matter of a 10 per cent. dividend had been discussed as early as October, 1923. July 29, 1924, he wrote Guy Huston, stating that he believed conditions warranted an increase of dividend to 10 per cent. March 26, 1925, he wrote to Guy Huston:
"I have just been making some figures showing the estimated net earnings to July 1st, adding $21,000 premium on the premium on the present bond sale, and after deducting the April and July dividends, it will leave us about $340,000 net. If, at that time 5,000 shares of stock could be sold to net the bank $145 and three (3) million bonds to net the bank around $102, it would push the profit account up over $600,000, and I think half of the three million of new mortgages could be put out at 6% and the other half at 5½%.
"I would estimate the bank then could easily net 12%, and with its 20% and better set up, could pay 10% dividends, and set up around $50,000 a year in its surpluses."
April 16, 1925, he wrote to the same party:
"Our earnings for April, May, and June will approximate $54,000, making a total of $444,000, and leaving a net of a little over $400,000 after the July 1 dividends have been paid. This would leave us over 20% on $1,900,000 capital with our tax matter still unsettled."
Defendant William G. M. Smith, one of the directors, testified:
"As to the increase of the dividend to 10 per cent., beginning March 1st, the figures submitted to me showed there would be adequate earnings to take care of a 10 per cent. dividend."
Defendant Guy Huston testified:
"It was my opinion that the bank would be able to pay and maintain a 10 per cent. dividend rate. The increased business, the capital stock paid in, would permit a large amount of increase of loanable funds through the sale of bonds, and the profit from that business would be very substantial. If I can refresh my memory, I can tell you exactly. Selling stock at $140 a share, under the plan then in general use, whereby you could use the premiums on stock to pay for legal reserves, and pay the cost of new business, on that basis, the capital account, legal reserve set up, and the earnings, 5½ per cent., is $79,200 annually, $18,000,000 of bonds could be issued, on which there was approximately *31 a 1 per cent. differential annually, or $180,000, making a total gross possible income of $259,200, for this stock increase.
"Q. (by Mr. Sawyer): That is, on the new business alone? A. On the new business alone. A 10 per cent. dividend would be $120,000, leaving available for losses and expenses, an annual profit of $139,200. Now, that is taking no account for premiums on bonds. We are just assuming that the bonds would be sold at par."
"At the time this stock was sold to the public, I was sure the bank had actually earned and had available for dividends all the dividends it had paid in the past."
He also gave in detail the figures on which he based his belief.
W. A. Streater, one of the directors (not a defendant), testified:
"Q. And in your duties as a director, did you keep track in a general way with what the earnings of the bank were? A. I gave that some attention. I made some estimates at times.
"Q. So that in voting for that increase in dividend you were not simply blindly following the figures handed you by W. H. Gold at that meeting? A. I would not say that I was.
"Q. And was it your own independent judgment, from what you knew of the conditions and the earnings of that bank in the past, that that 10 per cent. dividend could probably be maintained? A. It was, providing that the bank could go ahead and sell some bonds and increase its amount of shares."
Much correspondence was had in the fall and winter of 1924 between William H. Gold and Guy Huston relative to raising the dividend rate to 10 per cent. Misgivings and doubts were expressed at one time or another by each of them. In the spring of 1925 all of the circumstances seemed favorable to such a step, and it was taken. This correspondence to our mind shows integrity of purpose, instead of a scheme to defraud. Misgivings and doubts are indicative of honesty rather than of villainy.
The foregoing evidence; the fact that dividends of 9 per cent. had been earned and paid; the testimony that it was the belief of the defendants, as well as of others well informed, that the agricultural depression was about over; the absence of any substantial evidence to the contrary lead irresistibly to the conclusion that the defendants honestly believed and had reasonable grounds to believe that a dividend of 10 per cent. could and would be paid on the stock of the bank.
Another contention of the government is that the circular (Exhibit 100 substituted) was false, in that it did not set up as a liability the sum of $135,000 still to be paid to Guy Huston under the contract of 1922, as provided in the cancellation contract of December, 1923.
The statement in the circular was made up from the books of the bank. No such liability had ever been entered on the books of the bank. The evidence shows that the bank and Huston had proceeded on the theory that the installment payments should be made from time to time as the bank realized earnings from the loans made from the moneys derived from the bonds which Huston had sold under his contract. The payments were treated as in the nature of salary or expense items, rather than the whole sum as a liability. The payments were charged by the bank as an operating expense. The expert accountants were not agreed at the trial how the $135,000 should be handled from a bookkeeping standpoint. We do not think that a fraudulent intent can be inferred from such a state of facts.
A further contention of the government is that a false representation is found in the circular (Exhibit 100 substituted) in the statement:
"Its loans outstanding as of May 12, 1925, were $28,362,800.96, on which amortization payments have been made to the amount of $833,616.24. These loans are secured by first mortgages on corn land farms in the southern section of Minnesota and in the extreme eastern section of South Dakota. These farms have been appraised for loan purposes at over $68,000,000."
Included, either in whole or in part, in the total $28,362,800.96, was the mortgage of $500,000 given by the Farmers Fund, Incorporated, already described. The government contends that the whole plan of the Farmers Fund, Incorporated, was a subterfuge, and further that the $500,000 mortgage was not in any event a first mortgage.
We have already considered and disposed of the former contention. As to the character of the $500,000 mortgage, the evidence shows without dispute that the lands conveyed by the bank to the Farmers Fund, Incorporated, were lands which had been duly appraised and on which first mortgage loans had been made by the bank. It further appears that these mortgages had been duly filed with the registrar. Some of these mortgages being in default had been withdrawn from the registrar, had been foreclosed, and the title to the lands had been taken in the name of the bank. These lands were conveyed to the Farmers Fund, Incorporated, and the *32 $500,000 mortgage taken back covered the original amount of the loans on the lands, together with costs and other items chargeable against the lands. It is difficult to see why the $500,000 mortgage was not a "first mortgage" as to these lands. Of course, this $500,000 mortgage could have been separately stated in the circular and a history of the same given.
In the case of Mandelbaum v. Goodyear Tire & Rubber Co., 6 F.(2d) 818 (C. C. A. 8), the question was involved whether in a prospectus for the sale of stock of a corporation the omission to discuss and analyze certain items amounted to fraud. The prospectus failed to disclose that the company had built a clubhouse for the use of its employés at a cost of $1,500,000. This omission was urged as constituting fraud. The court said (page 822):
"We do not think that the failure to discuss this item in its prospectus could be regarded as a concealment of the company's condition amounting to fraud. As well might it be contended that it was the duty of the Goodyear Company to disclose in its prospectus its entire previous course of business, in order that it might be judged whether its management had been judicious and free from criticism."
A prospectus such as was involved in the Mandelbaum Case and in the case at bar is not intended to be a complete and detailed history of the financial transactions of the corporation.
There were also mortgages which had become in default, and title to the lands covered thereby had been taken by the bank without foreclosure in the name of a trustee or a nominee. These mortgages were still with the registrar. The lands covered by these mortgages were also conveyed to the Farmers Fund, Incorporated. Disbursements made by the bank in connection with acquiring the title to these lands, and other expense, were reimbursed to the bank by the Farmers Fund, Incorporated, either by the $75,000 which was paid by it to the bank or by being included in the $500,000 mortgage. To the extent that such disbursements were included in the mortgage it was a second mortgage. The exact figures are not disclosed by the record. If, therefore, the whole of the $500,000 mortgage was included in the total $28,362,800.96, stated in the circular to be the amount of the first mortgages, it would follow that there was a misstatement of fact to the extent indicated. It is also true that certain "other assets" were conveyed by the bank to the Farmers Fund, Incorporated, in return for the $75,000 cash and the $500,000 mortgage. If any of these "other assets" were represented by the mortgage, and if the whole of the mortgage was included in the total of loans stated in the circular, then there was a misstatement of fact to that extent. The amount of these "other assets" is not shown with exactness; but the evidence does show that the amount must have been small.
The statement in the circular was in our opinion, however, substantially correct, and we think the discrepancies noted, when considered in connection with all the facts and circumstances, do not support the charge of false representation.
We have now discussed at some length the more important details of the alleged fraudulent scheme set out in the indictment; the other details alleged have been examined and considered, but will not be discussed. We have also discussed a number of the alleged false representations which are claimed to have been made in connection with the alleged fraudulent scheme. The remaining alleged false representations have also been examined and considered, but will not be discussed.
In considering a case of the character of the one at bar, several well-established rules must be borne in mind:
(1) Where the alleged scheme involves the sale of stock of a corporation, an inquiry of considerable importance is whether the corporation has for a substantial length of time been organized and conducting a legitimate business. Mandelbaum v. Goodyear Tire & Rubber Co., supra; Corliss v. United States, 7 F.(2d) 455 (C. C. A. 8).
(2) Business adversity, especially in times of abnormal business conditions, does not necessarily spell fraud. Corliss v. United States, supra.
(3) Good faith of a defendant in a prosecution for making use of the United States mail in carrying out an alleged scheme to defraud is ordinarily a complete defense. Durland v. United States, 161 U. S. 306, 16 S. Ct. 508, 40 L. Ed. 709; Rudd v. United States, 173 F. 912 (C. C. A. 8); Sandals v. United States (C. C. A.) 213 F. 569.
(4) Where all of the substantial evidence is as consistent with innocence as with guilt, a conviction cannot be sustained. Turinetti v. United States, 2 F.(2d) 15 (C. C. A. 8); Grantello v. United States, 3 F.(2d) 117 (C. C. A. 8); Edwards v. United States, 7 F.(2d) 357 (C. C. A. 8); Bishop v. United States, 16 F.(2d) 410 (C. C. A. 8); Dickerson v. United States, 18 F.(2d) 887 (C. C. A. 8); Van Gorder v. United States, 21 F.(2d) 939 (C. C. A. 8); Salinger v. United States, 23 *33 F.(2d) 48 (C. C. A. 8); Gerson v. United States, 25 F.(2d) 49 (C. C. A. 8); Philyaw v. United States, 29 F.(2d) 225 (C. C. A. 8).
Applying these rules to the evidence in the case at bar, we are of the opinion that the alleged fraudulent scheme and the alleged false representations are without substantial support in the record, and that the items of evidence pointed out by the government as supporting the indictment are as consistent with the innocence of the defendants as with guilt on their part, and that a verdict of not guilty should have been directed by the trial court.
We deem it advisable, however, to advert to several errors occurring at the trial, and which in the opinion of the court require a reversal of the judgment.
II. Rulings on Evidence.
Evidence of various kinds was allowed to be introduced tending to show a drop in the price of the stock of the Southern Minnesota Bank from May, 1925, to the time of the trial in November, 1927; the purpose of the evidence being to establish that the prices in May and June, 1925, were fictitious and caused by the alleged fraudulent representations. The evidence was plainly inadmissible. Many factors might have intervened to affect the price unfavorably, and the uncontradicted evidence in the case showed the existence of a number of such unfavorable factors after the sales in May and June, 1925. The ruling in the Mandelbaum Case on a similar point is controlling here.
Evidence was allowed to be introduced showing the amount of compensation Guy Huston received from the Southern Minnesota Bank for selling its bonds prior to the transactions here in question; also that he received compensation from several other Joint Stock Land Banks for selling their securities. We think this evidence was inadmissible. Those transactions were entirely independent of the scheme alleged in the indictment. It was not shown or offered to be shown that all of the transactions were part of one system or plan being carried out by Guy Huston. It was not claimed that what was done by Guy Huston for which he was being tried was done unwittingly or unintentionally. On no ground that occurs to us were his independent dealings, either with the same bank or with other banks, admissible to prove the charges made against him in the indictment in the case at bar.
After the sale of the 11,000 shares of stock of the Southern Minnesota Bank was made, a considerable amount of the sales money belonging to the bank was carried temporarily with the Guy Huston Company. The government, over objection, introduced evidence showing that during the time when this money of the bank was being carried by the Guy Huston Company a loan was made by that company of $100,000 to one Walter Cravens, and that this loan was not repaid. There was no showing that the money loaned to Cravens came from the funds of the bank which were being carried by the Guy Huston Company, and, on the other hand, there was conclusive proof that all of the moneys so carried were repaid at the proper time by the Guy Huston Company to the bank. Clearly the evidence as to the Cravens loan had no place in the case at bar.
The witness J. J. Minot, Jr., was allowed to testify, over objection by defendants, that he was told by Mr. Chambers, an employé of the Guy Huston Company, that the bank was to receive $147.50 per share net for its stock. Mr. Huston made no such statement to Mr. Minot; nor was he present when Mr. Chambers so told Mr. Minot. Mr. Chambers was not alleged in the indictment to be a conspirator, nor was he shown to have any authority from Mr. Huston to make such a statement. Furthermore, he testified that at the time he made the statement to Mr. Minot he did not know the provisions of the contract between the Guy Huston Company and the bank. The statement of Chambers to Minot was clearly inadmissible.
III. Charge of the Court to the Jury.
On the question whether unearned premiums had been paid, the court charged as follows:
"You are advised that stock premiums, when received, became a part of the surplus account of the bank, and that they might properly have been used to fill the reserve account of the bank, or to pay the expense of securing new business, thereby releasing considerable amounts of net earnings for the payment of dividends, but that such stock premiums could not properly have been used for the direct payment of such dividends. In determining, then, whether the dividends were warranted and were paid out of the proper funds, you may take into account these several rules applicable to the various funds of the bank."
This being the law of the case, there was no issue of fact for the jury to decide relative to payment of unearned dividends. For, on the theory of the law as stated, the uncontradicted evidence was that the dividends in question had been paid out of earnings. It *34 was error, therefore, to submit to the jury the question whether the dividends paid had been earned. C., St. P., M. & O. Ry. Co. v. Kroloff, 217 F. 525 (C. C. A. 8), and cases cited.
We think it unnecessary to discuss the other numerous matters covered by the assignments of error.
For the reasons which we have stated, the judgment as to each of the defendants is reversed.
NOTES
[1] "The Grand Jurors of the United States of America within and for said District in the name and by the authority of the said United States of America, upon their oaths present:
"That William H. Gold, Glenn W. Gold, Donald W. Gold and William G. M. Smith, each late of Redwood Falls, in said District, Guy Huston, late of the City of New York, State of New York, and John E. Huston, late of the City of Chicago, State of Illinois, hereinafter called defendants, on June 15, 1925, and prior did devise a scheme to obtain money and property from a certain class of persons, hereinafter called persons to be defrauded, then resident in divers States of the United States, by means of false and fraudulent pretenses, representations and promises, that is to say; the said persons to be defrauded, whom the said defendants would, by the means hereinafter described, induce to send and pay their moneys and part with their property to the said defendants; the Guy Huston Company, a corporation organized under the laws of the State of Illinois; the Southern Minnesota Joint Stock Land Bank, of Redwood Falls, Minnesota, a land bank association theretofore organized and established and then and there existing and operating and doing business at Redwood Falls, Minnesota, under the laws of the United States; Jackson & Curtis, a brokerage firm of Boston, Massachusetts and New York City; the Milliken and York Company, a brokerage firm of Cleveland, Ohio; George W. York & Company, a corporation of Cleveland, Ohio, and divers other persons, firms, corporations and agencies to the Grand Jurors unknown, for subscribing for and purchasing from said defendants, the said Guy Huston Company, the said Land Bank, the said Jackson & Curtis Company, the said Milliken and York Company and divers other persons, firms, corporations and agencies to the Grand Jurors unknown, shares of stock in the said Southern Minnesota Joint Stock Land Bank of Redwood Falls, hereinafter called Land Bank; that the said defendants further, as a part of said scheme herein described to obtain money and property by means of false pretenses, representations and promises, would and did falsely increase the capitalization of said Land Bank by 12,000 shares, of the par value of $100 each, to 30,000 shares, of the par value of $100 each, or a total increased capitalization of $1,200,000; that the said Land Bank would have and continue its office and principal place of business at Redwood Falls, Minnesota, and was to and did have the following named defendants elected, appointed and acting officers and agents, to wit: William H. Gold, President, Glenn W. Gold, Vice President, Donald W. Gold, Vice President, William G. M. Smith, Vice President, and Guy Huston and John E. Huston, Agents; and the said following named defendants would be and were elected Directors of the said Land Bank: William H. Gold, Glenn W. Gold, William G. M. Smith, Guy Huston and John E. Huston; and the said Guy Huston Company, dominated and controlled by the said Guy Huston and John E. Huston, would be and was appointed or designated by the Board of Directors of said Land Bank, June 16, 1924, as the fiscal agency for the sale of stock and other securities thereafter to be issued by said Land Bank; and the said Guy Huston Company was further to be used by the defendants as a mouthpiece and convenient fiscal agent in sending out market letters and quotations, quoting false and fictitious prices on said shares of capital stock and securities; that the defendants would further, as a part of said scheme, falsely and fraudulently pretend and represent to the Federal Farm Loan Board of the United States, for the purpose of securing the approval of the Federal Farm Loan Board of the said increase in capitalization and thereby to the sale of the said shares to the said persons to be defrauded, that the business of the said Land Bank then required the said increase in capitalization and thereby the further issuance and sale to the public of farm loan bonds of said Land Bank to the extent of fifteen times said increase in capitalization, thereby causing the said Federal Farm Loan Board to understand and believe that said increase in capitalization was then necessary to the proper expansion of the business of said Land Bank and necessary as a basis for the further issuance of bonds of said Land Bank to the extent of fifteen times said increase in capitalization, and thereafter would and did secure the approval of the said Federal Farm Loan Board to said increase in capitalization, when in fact the business of said Land Bank did not require the said increase in the capitalization by $1,200,000.00 and thereby the further issuance and sale to the public of farm loan bonds of said Land Bank to the extent of fifteen times said increase in capitalization, and would not and did not thereafter further issue its farm loan bonds to the extent permitted by said increased capitalization, and did not make first mortgage loans to the extent of fifteen times said increase in capitalization, all of which the said defendants then and there well knew and intended;
"That it was further a part of said scheme as aforesaid, that the said defendants would and did incorporate, and caused to be incorporated, under the laws of the State of Minnesota, the Farmers Fund, Incorporated, with its office and principal place of business at Redwood Falls, Minnesota, for the pretended purpose of engaging in the buying and selling of real estate and personal property, to acquire, purchase and hold mortgages, to guarantee the payment of bonds, notes and mortgages; when in truth and in fact, as the defendants then and there well knew, the Farmers Fund, Incorporated, was incorporated, and caused to be incorporated under the pretense of taking title to the lands, real estate and other assets acquired and to be acquired by the said Land Bank, in order that the books and records, the published balance sheets and financial statements of the conditions of said Land Bank would not show to the persons to be defrauded and the public generally, the amount and value of the lands, real estate and other assets acquired and to be acquired by the said Land Bank, thereby causing the assets of said Land Bank to be made to falsely appear in a liquid condition and the said Land Bank to appear to be in a better financial condition than it in fact was, all of which the defendants then and there well knew and intended;
"That it was further a part of the said scheme that the said defendants would and did cause the said Guy Huston Company, Incorporated, to arrange with the said Jackson & Curtis, of Boston, Massachusetts, and New York City, the said Milliken and York Company, of Cleveland, Ohio, the said Geo. W. York & Company, of Cleveland, Ohio, and divers other persons, firms and corporations whose names are to the grand jurors unknown, for the purpose of furnishing and causing to be furnished to said Jackson & Curtis, the said Milliken and York Company, the said Geo. W. York & Company, and divers other persons, firms and corporations to the grand jurors unknown, shares of the capital stock of said Land Bank to be sold and cause to be sold by the said Jackson & Curtis, the said Milliken and York Company, the said Geo. W. York & Company, and divers other persons, firms and corporations to the grand jurors unknown, to the persons to be defrauded, at a price of not less than $158.50 per share, which said price per share was largely in excess of the yield value of said stock, all of which the defendants then and there well knew and intended;
"It was further a part of the said scheme that the defendants would and did induce said persons to be defrauded to subscribe for and pay for shares of stock in said Land Bank by the means and in the manner herein set forth and that said subscription and information concerning the same would be and was transmitted to the said Land Bank at Redwood Falls, Minnesota, and to its officers and agents, and in the due course of business, the said shares in said Land Bank would be and were transmitted through the United States mails from Redwood Falls, Minnesota, for delivery to the said fiscal agent for further delivery to said Jackson & Curtis, the said Milliken and York Company, the said Geo. W. York & Company, and divers other persons, firms and corporations to the grand jurors unknown, for sale and delivery to the said persons intended to be defrauded, all of which the defendants then and there well knew and intended;
"That it was further a part of said scheme to obtain money and property from said persons to be defrauded by means of false and fraudulent pretenses, representations and promises that the capitalization of said Land Bank would be increased for the purpose of selling to the public the said 12,000 shares of stock greatly in excess of the yield value of said shares and for the purpose of appropriating a large portion of the proceeds arising from the sale of said shares of stock to the use, benefit and gain of the said defendants and to divers other persons, firms and corporations, to the grand jurors unknown, and not to the use, benefit and gain of said Land Bank, all of which the defendants then and there well knew and intended;
"It was further a part of the said scheme that the defendants would also make the following false pretenses, representations and promises in execution thereof to said persons to be defrauded, through and by means of divers printed circulars, letters, financial statements and publications and directly and through agents to the effect:
"(1) That the said Land Bank was then earning and would earn large sums of money and was doing a successful and paying business and then earning and would pay large dividends out of the earnings and profits of said Land Bank and the purchase of its said shares and the investment of money therein by the said persons to be defrauded would be a safe and profitable investment and greatly benefit the said persons making such investment, thereby causing said persons to be defrauded to understand and believe that said Land Bank was then earning and would earn large sums of money and that dividends authorized by the Board of Directors at the rate of 10% per share per annum would be paid quarterly on said shares of stock they should so purchase, and said shares of stock would greatly increase in value and that said investments would be safe and profitable investments, when in fact said Land Bank was not then operating at the profit represented and was not then earning and would not earn sufficient money out of which dividends could lawfully be paid, and that a substantial part of the moneys and property that would be and was invested by said persons to be defrauded in said shares of stock, would be and was wholly lost and that the dividends that were paid to said persons to be defrauded were largely paid out of the moneys derived from the sale of said shares of stock of said Land Bank, all of which the defendants then and there well knew and intended;
"(2) That the business of said Land Bank was and would be safeguarded and that the investments made by said Land Bank were and would be restricted to, to wit, banking property; Government and Land Bank bonds; loans on long term first mortgages upon approved agricultural land not exceeding fifty per cent. of the land value and twenty per cent. of the permanent insured improvements thereon and that further restrictions regarding the conduct of the business of said Land Bank were and would be imposed, to wit: mortgaged property must be actually used for agricultural purposes; no single loan may exceed fifteen per cent. of the Bank's paid-in capital stock, and in no case may exceed fifty thousand dollars; borrowers must have title in fee simple; mortgage must be an absolute first lien; all loans must be confined to the providing of capital for agricultural purposes; profits are practically assured once the loans are made and the bonds sold; the integrity of any of the obligations of a joint stock land bank may never be questioned; joint stock land bank stock is unique in that the security of principal and assurance of continuity of income are based on the principal assets permitted by law, thus causing said persons to be defrauded to understand and believe that the business of said Land Bank was and would be so safeguarded, as aforesaid, and the investments by said Land Bank were and would be so restricted, as aforesaid, thereby further causing said persons to be defrauded to believe that investments in said shares of stock would be safe and profitable investments, when in fact the said defendants would not and did not safeguard the business or restrict the investments made by said Land Bank, to wit, to banking property, Government and Land Bank bonds, loans on long term first mortgages upon approved agricultural land not exceeding fifty per cent. of the land value and twenty per cent. of the permanent insured improvements thereon, nor would nor did said defendants further restrict the conduct of the business of said Land Bank, to wit, to mortgages on property actually used for agricultural purposes; by limiting amount of all single loans to fifty thousand dollars; by requiring all borrowers to have title in fee simple; by requiring all mortgages to be absolutely first liens; by confining all loans to providing capital for agricultural purposes; so as to practically assure profits once loans are made and bonds sold; so as to make the integrity of all of the obligations of said Land Bank unquestionable and so as to assure the continuity of income of said Land Bank based upon the principal assets thereof permitted by law, all of which the said defendants then and there well knew and intended.
"And the Grand Jurors aforesaid, upon their oaths aforesaid, do further present: That the said defendants were further, as a part of said scheme, and in execution thereof, to make from time to time false and fraudulent financial statements of the condition of said Land Bank to the Federal Farm Loan Board and to the public generally, greatly exaggerating and misstating the amount and value of certain of the assets of said Land Bank at the same time falsely representing and concealing the amount and value of certain of the liabilities of said Land Bank, and that said Land Bank was then operating at a substantial profit and had accumulated large reserves, surplus and undivided profits, thereby causing the said persons to be defrauded to understand and believe that said Land Bank was in a prosperous and sound financial condition and that the purchase of said shares of stock would be a safe and profitable investment, and that dividends would be paid quarterly, when in fact the said Land Bank would not be operating at a substantial profit and had not then accumulated large reserves, surplus and undivided profits from operation all of which the said defendants then and there well knew and intended.
"And the Grand Jurors aforesaid, upon their oath aforesaid, do further present: That in the formation and execution of said scheme said defendants, on June 2, 1925, at Redwood Falls aforesaid, in said District of Minnesota and in the Second Division thereof, and within the jurisdiction of this Court, and in attempting so to do for the purpose of executing said scheme, unlawfully, willfully, knowingly and feloniously did place and cause to be placed a certain letter and envelope, postage prepaid, in the post office establishment of the United States, addressed to the New York Joint Stock Land Bank, 61 Broadway, New York, N. Y., and which said letter and envelope had then and there enclosed therein, in execution of said scheme, ten certain certificates of stock of said Southern Minnesota Joint Stock Land Bank, and which said letter was in substance and to the effect following:
"`June 2, 1925.
"`New York Joint Stock Land Bank, 61 Broadway, New York, N. Y. Gentlemen: We are enclosing herewith ten (10) stock certificates of this bank for 1000 shares each, numbered 4754 to 4763 inclusive, issued in the name of Guy Huston Company.
"`You may deliver these certificates to the Guy Huston Company when called for by them.
"`Will you kindly acknowledge receipt of these certificates, and oblige
"`Yours truly,
"`WBC:LG Secretary.
"`Enc.'
"That at the time of placing and causing to be placed the said letter and envelope, having enclosed therein the said stock certificates, in the post office of the United States as aforesaid, the defendants then and there well knew that said letter and envelope and said stock certificates were for the purpose of executing said scheme; against the peace and dignity of the United States, and contrary to the form of the statute of the same in such case made and provided."
"Twelfth Count.
"And the Grand Jurors aforesaid, upon their oath aforesaid, do further present that: William H. Gold, Glenn W. Gold, Donald W. Gold, William G. M. Smith, Guy Huston and John E. Huston, whose first or Christian names are to the Grand Jurors unknown, except as herein stated, and being the identical persons named in the first count of this indictment, and hereinafter called defendants, continuously throughout the period of time from February 1, 1924, to October 5, 1925, at Redwood Falls, Minnesota, in the Second Division of the District of Minnesota and within the jurisdiction of this Court, at New York, New York, at Saint Paul, Minnesota, and at divers other places to the Grand Jurors unknown, did conspire, combine, confederate and agree together and with each other and with divers other persons to the Grand Jurors unknown, to commit divers offenses against the United States, to wit: Violations of Section 215 of the Penal Laws of the United States, and among said violations, to commit the divers offenses charged against said defendants in the preceding counts of this indictment; and the said defendants did thereafter do divers acts to effect the object of said unlawful and felonious conspiracy, to wit: Not only the several acts of placing and causing to be placed, letters, and shares or certificates of stock, in the post office of the United States at Redwood Falls, Minnesota, and taking and causing to be taken letters from the post office of the United States at Redwood Falls, Minnesota, and unlawfully causing them to be sent and delivered by the post office establishment of the United States as charged in the preceding counts of this indictment, but by numerous other acts of preparing letters and shares or certificates of stock for mailing in the post office at Redwood Falls, Minnesota, and divers other places, in this indictment set forth, to be sent and delivered by the post office establishment, mentioned in the first count of this indictment, and of making to said persons to be defrauded, the false and fraudulent pretenses, representations and promises in said first count described, and obtaining by means thereof, the moneys and property of the said persons to be defrauded, directly or through agents and by the unlawful use of the post office establishment of the United States, as well as certain other overt acts in furtherance of and to effect the object of said unlawful conspiracy now here specified, that is to say:
"1. That the said defendants did, on or about June 16, 1924, at Redwood Falls, Minnesota, enter into an agreement with the Guy Huston Company, a corporation organized and existing under and by virtue of the laws of the State of Illinois, whereby the said Land Bank engaged the said Guy Huston Company, Incorporated, as its fiscal agent for the sale of stock and other securities thereafter to be issued by said Land Bank." Here follow allegations of other overt acts.
| {
"pile_set_name": "FreeLaw"
} |
381 A.2d 648 (1978)
Harlan BLACK
v.
BLACK BROTHERS CONSTRUCTION and New Hampshire Insurance Company.
Supreme Judicial Court of Maine.
January 12, 1978.
*649 Collins & Crandall, P. A. by Stephen W. Hanscom, Rockland (orally), for plaintiff.
Clyde L. Wheeler, Waterville (orally), for defendant.
Before DUFRESNE, C. J., and POMEROY, WERNICK, DELAHANTY and GODFREY, JJ.
POMEROY, Justice.
Undoubtedly the Legislature hoped any litigation concerning the meaning of the word "employee" would be forestalled by defining the word as they did in 39 M.R. S.A. § 2(5). Unfortunately the Legislature's hope in this regard has not been realized. We continue to be called upon to review the commissioner's conclusion that one who seeks compensation under the Workmen's Compensation Act is or is not an "employee" within the meaning of the Act. See, for example, Harlow v. Agway, Me., 327 A.2d 856 (1974); Owen v. Royal Industries, Inc., Me., 314 A.2d 60 (1974); Madore v. Liberty National Bank, Me., 289 A.2d 36 (1972); Michaud v. Charles R. Steeves & Sons, Inc., Me., 286 A.2d 336 (1972); In re Dudley, Me., 256 A.2d 592 (1969).
In the instant case a commissioner's finding that appellee Harlan F. Black was an "employee" of Black Brothers Construction has prompted this appeal from a pro forma decree entered in the Superior Court sustaining such conclusion by the Commission.
We sustain the appeal.
On October 3, 1975, appellee suffered a myocardial infarction while digging trenches in which to lay pipes for a septic system. He subsequently sought an award of compensation in the Industrial Accident Commission alleging that he had received "a personal injury arising out of and in the course of [his] employment."
The "employer" for whom appellee alleged that he worked, Black Brothers Construction, and the compensation insurance carrier, New Hampshire Insurance Carrier, contested liability on the ground that Black was not an "employee." They further asserted the "affirmative defense" that he was the employer, not an employee, and was not covered under the policy. The *650 essence of this contention was that appellee was a partner of Black Brothers Construction at the time of the "injury."
The commissioner found in appellee's favor below, holding that Black was an "employee" and that Black Brothers and the insurance carrier had not "met their burden of proving that Black was a partner." The commissioner further found that even if Black were a partner, he would be eligible for compensation payments both under the Maine Workmen's Compensation Act[1] and under the terms of the insurance policy itself.[2] A pro forma decree affirming the award was entered in Superior Court and Black Brothers and the insurance carrier seasonably appealed.
We find that the commissioner erred in concluding that appellants had the burden of proving a partnership and conclude that, as a matter of law, appellee is not an "employee" within the terms of the Workmen's Compensation Act.
It is well established that a claimant in a Workmen's Compensation case has the burden of proof on all essential issues. MacLeod v. Great Northern Paper Co., Me., 268 A.2d 488 (1970); White v. Monmouth Canning Co., Me., 228 A.2d 795 (1967). One essential issue to be proven by the claimant is employment. Owen v. Royal Industries, Inc., supra; Houle v. Tondreau Bros. Co., 148 Me. 189, 91 A.2d 481 (1952). Ordinarily, however, where an affirmative defense is raised, the burden as to such issue is on the party asserting such defense. Metcalf v. Marine Colloids, Inc., Me., 285 A.2d 367, 370 (Wernick, J. Concurring); R. Field, v. McKusick and L. Wroth, 1 Maine Civil Practice § 8.7 (2nd ed. 1970). Here, however, appellants did not actually raise an affirmative defense, despite the caption of their pleadings. The thrust of the "defense" was merely to contest appellee's allegation that he was an "employee." By asserting that appellee was an employer and a partner, appellants merely assert that appellee is not entitled to employees' benefits. Since no affirmative defense was raised, the burden of proof as to the issues remained on the petitioner-appellee.
The commissioner also erred as a matter of law in concluding that appellee was an employee. Employment status is a legal conclusion to be drawn from established facts. Madore v. Liberty National Bank, supra; In re Dudley, supra. In the instant case, the facts are undisputed, only the legal conclusion is at issue. Because this is so, we are not bound by the commissioner's conclusion.
An employee is defined under the Maine Workmen's Compensation Act as any person "in the service of another under any contract of hire, express or implied, oral or written" with certain exceptions inapplicable here. 39 M.R.S.A. § 2(5). One essential element in determining employment status is the employer's right to control the employee. Poulette v. Herbert C. Haynes, Inc., Me., 347 A.2d 596 (1975); In re Dudley, supra; Murray's Case, 130 Me. 181, 154 A. 352, 75 A.L.R. 720 (1931). The record is devoid of evidence that appellee was in the service of his brother.
Both appellee and Harold hired employees;
Both appellee and Harold made bids on work;
Both bought new equipment after consultation with one another;
Both signed contracts.
The record does reveal that appellee often bowed to the greater expertise of his brother Harold. Typical of this is revealed *651 by the following questions put to Harold and his answers thereto:
Q. Is there any type of job that you would figure to bid on, any particular type of job you would figure a bid on yourself more than any other one?
A. Oh, I did most of the bids on the fill jobs.
Q. Fill jobs?
A. Yes.
Q. And, was the reason for that that you were more expert in that particular area than he was?
A. Yes.
Q. Because you had done it more?
A. Yes.
Q. And, he did the bids on jobs where there was less expertise involved, is that correct?
A. Yes, you might say that, yes.
On the other hand, the record is replete with evidence the two brothers operated as partners.
In Cumberland County Power and Light Co. v. Gordon, 136 Me. 213, 218, 7 A.2d 619, 622 (1939); this Court adopted Story's classic definition of a partnership:
"A voluntary contract between two or more competent persons to place their money, effects, labor, and skill, or some or all of them, in lawful commerce or business with the understanding that there shall be a community of profits thereof between them."
Appellee's brother Harold described the relationship between the partners as follows:
"Well, there wasn't really any arrangement. I just decided I had to have some help so we decided he would come in with me and we could do the work and split the profits. There was no agreement of any sort."
When appellee entered the business with his brother Harold:
The Company's name was changed to "Black Brothers Construction."
Partnership tax returns were filed by the business;
Appellee's personal income tax records for 1974 and 1975 attributed most of his income to a partnership source;
The business filed W-2 Forms and paid Social Security for two part-time employees, but did not do so for appellee;
Both brothers signed Company checks;
The named insureds in the compensation insurance policy were Harold E. Black and Harlan Black d/b/a Black Brothers Construction;
In computing the premium charged by the insurer for this insurance coverage, the money which appellee received from the business was never included in the total of wages paid.
We find as a matter of law the only legal conclusion which could properly be drawn from the evidence before the commissioner was that appellee was not an "employee" within the meaning of 39 M.R.S.A. § 2(5), but rather was a partner with his brother Harold Black in Black Brothers Construction.
In suggesting as he did that appellee was entitled to Workmen's Compensation by the terms of the insurance policy itself, the commissioner misconstrued the terms of the policy. Careful reading of the clause of the policy to which the commissioner referred satisfies us that the policy provision means that if appellee is a partner, the insurance coverage provided by the policy applies to him as a partner-employer only while he is acting within the scope of his duties as such partner.
The entry must be:
Appeal sustained.
The decree of the Industrial Accident Commission set aside.
Remanded to the Superior Court for the entry of an order remanding to the Industrial Accident Commission with instructions to enter a decree in favor of the employer.
Further ordered that the appellants pay to the appellee an allowance for counsel fees in the amount of $550.00, together with his reasonable out-of-pocket expenses for this appeal.
ARCHIBALD, J., did not sit.
*652 DUFRESNE, A. R. J., sat at oral argument as Chief Justice, but retired prior to the preparation of the opinion. He has joined the opinion as Active Retired Justice.
DELAHANTY, J., sat at oral argument, but participated no further.
WERNICK and GODFREY, JJ., and DUFRESNE, A. R. J., concurring.
NOTES
[1] 39 M.R.S.A. § 2(5)B was adopted by Chapter 539 § 1 P.L. 1977 effective October 24, 1977. This statute has no application here as the "injury" is alleged to have occurred October 3, 1975.
[2] The policy read in pertinent part as follows:
"3. Partnership or Joint Venture as Insured.
If the insured is a partnership or joint venture, such insurance as is afforded by this policy applies to each partner or member thereof as an insured only while he is acting within the scope of his duties as such partner or member."
| {
"pile_set_name": "FreeLaw"
} |
Slip Op. 10-91
UNITED STATES COURT OF INTERNATIONAL TRADE
UNITED STATES,
Plaintiff,
Before: Timothy C. Stanceu, Judge
v.
Court No. 07-00171
TIP TOP PANTS, INC.,
Defendant.
OPINION AND ORDER
[Denying plaintiff’s motion for partial reconsideration]
Dated: August 13, 2010
Tony West, Assistant Attorney General, Jeanne E. Davidson, Director, Patricia M.
McCarthy, Assistant Director, Commercial Litigation Branch, Civil Division, United States
Department of Justice (David M. Hibey and Meredyth C. Havasy); Chris Yokus, Office of the
Assistant Chief Counsel, United States Customs and Border Protection, of counsel, for plaintiff.
Ballon Stoll Bader & Nadler, P.C. (Vano I. Haroutunian) for defendant.
Stanceu, Judge: Plaintiff brought this action under Section 592 of the Tariff Act of 1930,
as amended, 19 U.S.C. § 1592 (2006) (“Section 592”), to recover from defendant Tip Top Pants,
Inc. (“Tip Top”) a civil penalty of $55,636.90 and duties of $1,640.53, plus interest, for alleged
material false statements or acts, or material omissions, made in connection with a single entry of
apparel made in 2002. Compl. ¶¶ 1, 3-4, 8. On January 13, 2010, the court denied plaintiff’s
motion for summary judgment, concluding that plaintiff failed to show that it cured the “apparent
procedural defect” resulting from the failure of United States Customs and Border Protection
Court No. 07-00171 Page 2
(“Customs” or “CBP”) to issue “a written statement setting forth the final determination and the
findings of fact and conclusions of law” in response to Tip Top’s petition for remission and
mitigation of the penalty as required by Section 592.1 United States v. Tip Top Pants, Inc.,
34 CIT __, __, Slip Op. 10-5, at 9-10 (Jan. 13, 2010) (“Tip Top I”). On February 12, 2010,
plaintiff filed a USCIT Rule 59 motion (“Reconsideration Motion”) for reconsideration of the
denial of its motion for summary judgment on the grounds that no procedural violation occurred
and, alternatively, that any procedural violation that did occur should be disregarded because Tip
Top failed to demonstrate substantial prejudice. Pl.’s Mot. for Partial Reconsideration 1-3
(“Reconsideration Mot.”). Defendant opposes this motion on various grounds. Def.’s Opp’n to
Pl.’s Mot. for Partial Reconsideration 2 (“Def.’s Opp’n”). The court concludes that the
Reconsideration Motion must be denied because plaintiff has failed to demonstrate that the court
erred in denying plaintiff’s summary judgment motion.
I. BACKGROUND
The background of this case is set forth in detail in the court’s previous Opinion and
Order, Tip Top I, 34 CIT at __, Slip Op. 10-5, at 2-8, and is summarized more generally herein.
A. The Entry of the Merchandise for Consumption in 2002
Plaintiff’s penalty claim is based on a single consumption entry filed by Tip Top with
Customs in 2002 at Laredo, Texas for a shipment from Mexico of 954 dozen men’s denim cotton
1
The court also denied plaintiff’s motion for summary judgment against co-defendant
Saad Nigri. United States v. Tip Top Pants, Inc., 34 CIT __, __, Slip Op. 10-5, at 20 (Jan. 13,
2010) (“Tip Top I”). The court, sua sponte, dismissed Mr. Nigri from this lawsuit. Id.
Plaintiff’s motion for partial reconsideration addresses only the court’s denial of summary
judgment against Tip Top Pants, Inc. See Pl.’s Mot. for Partial Reconsideration 1
(“Reconsideration Mot.”).
Court No. 07-00171 Page 3
shorts and pants and 960 dozen boys’ denim cotton shorts, with an entered value of $215,398 and
a date of entry of May 24, 2002. Pl.’s Mot. for Summ. J. app. at 25-28 (“Pl.’s Mot.”) (setting
forth the entry summary form and commercial invoices); Pl.’s Statement of Material Facts
pursuant to Rule 56(h)(1) ¶¶ 1-2, 7 (“Pl.’s Statement of Material Facts”). Tip Top entered the
goods under subheading 6203.42.4050, Harmonized Tariff Schedule of the United States (2002)
(“HTSUS”) for the men’s apparel items and Subheading 6203.42.4060, HTSUS for the boys’
shorts. Pl.’s Mot. app. at 25-26. Both provisions were subject to a General (Most Favored
Nation (“MFN”)) duty rate of 16.8% ad valorem; goods classified thereunder that qualified as
originating goods under the North American Free Trade Agreement (“NAFTA”) Implementation
Act, as provided for in General Note 12, HTSUS, were eligible for duty-free tariff treatment.
Subheading 6203.42.40, HTSUS; General Note 12, HTSUS. The entry summary form does not
appear to indicate a claim for the NAFTA tariff preference and instead claims duty-free tariff
treatment under Subheading 9802.00.9000, HTSUS.2 Pl.’s Mot. app. at 25-26.
B. The Customs Form 28 Request for Information and the Customs Form 29 Notice of
Proposed Action
On November 19, 2002, Customs issued to Tip Top a request (“Customs Form 28”) for
various documentation pertaining to the entry. Pl.’s Statement of Material Facts ¶¶ 3-4; Pl.’s
Mot. app. at 10-11. After Tip Top did not respond to the Customs Form 28, Customs, on
January 16, 2003, issued a notice of proposed action (“Customs Form 29”) stating that it was
proposing to disallow Tip Top’s duty-free claim under Subheading 9802.00.9000, HTSUS due to
2
Subheading 9802.00.9000 provided duty-free treatment for apparel goods assembled in
Mexico from fabric components wholly formed and cut in the United States, subject to certain
conditions. Subheading 9802.00.9000, Harmonized Tariff Schedule of the United States (2002)
(“HTSUS”); see Chapter 98, Subchapter II, U.S. Note 4, HTSUS.
Court No. 07-00171 Page 4
Tip Top’s failure to respond to the Customs Form 28 and allowing Tip Top 20 days to supply the
documentation previously requested. Pl.’s Statement of Material Facts ¶¶ 3-4; Pl.’s Mot. app.
at 12. The Customs Form 29 also states that “[t]his office will be disallowing all 9802.00.9000
claims, and duties will be assessed at the general rate of duty. Your firm has made false claims
under this program and is subject to possible penalties.” Pl.’s Mot. app. at 12.
C. The Administrative Penalty and Protest Proceedings
Customs issued a pre-penalty notice to Tip Top on May 7, 2003, citing “material false
statements, acts and/or omissions,” “HTS 9802.00.9000,” an alleged degree of culpability of
negligence, and a proposed penalty of $55,636.90, which it described as “two (2) times the
potential loss of revenue.” Pl.’s Mot. app. at 14; Pl.’s Statement of Material Facts ¶ 5. As the
basis for the contemplated penalty, the pre-penalty notice cited only one fact, Tip Top’s failure to
respond to the Customs Form 28 “requesting documentation to substantiate the 9802 claim.”
Pl.’s Mot. app. at 14. Even though the notice was a pre-penalty notice, and not a claim for
penalty, the notice stated: “Importer has failed to respond resulting in entry being rate advanced
in the sum of $27,818.45 and penalty assessment.” Id. Tip Top filed a response to the pre-
penalty notice on June 26, 2003. Pl.’s Mot. app. at 15-20; Pl.’s Statement of Material Facts ¶ 6.
Among other arguments, the response claimed that the apparel items on the entry at issue “were
. . . entered duty-free as products of Mexico eligible for duty-free treatment under the provisions
of the North American Free Trade Agreement (‘NAFTA’)” and that “[t]he entry in question was
filed on the basis of a NAFTA blanket Certificate of Origin, covering the period of January 1,
2002 through December 31, 2002.” Pl.’s Mot. app. at 17.
Court No. 07-00171 Page 5
Following the liquidation of the entry on April 4, 2003, Tip Top filed a protest and
request for further review on June 30, 2003. Id. app. at 76-82. The protest contested “the
decision of Customs to deny duty-free treatment to the merchandise imported and entered under
the captioned entry under HTSUS subheading 9802.00.9000, and under subheadings
6203.42.4050 [or] 6203.42.4060, as qualifying products of Mexico under NAFTA” and the
assessment of duties at 16.8% ad valorem. Id. app. at 77. The submissions of the parties do not
indicate whether Customs has ruled on the protest.
Customs issued a penalty claim for $55,636.90 on a Customs Form 5955A dated
October 6, 2003 and a cover letter dated October 7, 2003. Pl.’s Mot. app. at 60-62; Pl.’s
Statement of Material Facts ¶ 9. The notice of penalty stated that Tip Top “entered or caused to
be entered merchandise into the commerce of the United States by means of material false
statements, acts and/or omissions.” Pl.’s Mot. app. at 62. The notice of penalty cited, as the
reason for the “penalty assessment,” Tip Top’s failure to respond to the Customs Form 28. Id.
The cover letter stated as the basis for the assessment of a penalty that
[a]lthough the entry is being protested, and you claim a correct NAFTA
Certificate of Origin submitted [sic], we find that the failure to provide the
Certificate within the time allowed is material to the orderly and proper
assessment and collection of duties by Customs and Border Protection and
demonstrates negligence.
Id. app. at 60.
On November 4, 2003, Tip Top filed with Customs a petition seeking cancellation or
substantial mitigation of the penalty. Pl.’s Mot. app. at 63-70 (setting forth Letter from Follick &
Bessich to Bureau of Customs & Border Prot. 1-8 (Nov. 4, 2003) (“Petition”)); Pl.’s Statement of
Material Facts ¶ 10. Among other arguments, Tip Top stated that the failure to respond to the
Court No. 07-00171 Page 6
Customs Form 28 was the fault of its freight forwarder, South Texas International (“STI”) of
Laredo, Texas, upon whom Tip Top relied to maintain the required records and respond to the
request for information. Pl.’s Mot. app. at 65-67 (Petition 3-5). It also argued that the
merchandise at issue qualified for duty-free treatment under Subheading 9802.00.9000, HTSUS,
that documentation, although filed late, established that the merchandise was entitled to duty-free
tariff treatment, and that Tip Top had claimed duty-free entry under NAFTA on the basis of facts,
circumstances, and documents (albeit late filed) that supported such entry. Id. app. at 66-68
(Petition 4-6). Although arguing that no penalty was warranted, id. app. at 68 (Petition 6), it also
argued that any penalty should be canceled or substantially mitigated because of Tip Top’s
excellent compliance record, because this was Tip Top’s first experience with importing
merchandise duty-free under NAFTA, and because of Tip Top’s reliance “upon professionals,
customs brokers and freight forwarders who held themselves out as qualified and informed in
handling NAFTA importations and their documentary requirements.” Id. app. at 69 (Petition 7).
The documentation submitted as evidence in support of plaintiff’s motion for summary judgment
contains no written decision by Customs responding to the arguments in Tip Top’s Petition.
Plaintiff’s appendix contains a second Customs Form 5955A dated January 9, 2006, id.
app. at 121, that plaintiff describes as an “amended penalty notice.” Pl.’s Statement of Material
Facts ¶ 12. The text substantively is the same as the penalty notice dated October 6, 2003, except
that the following sentence was added: “The fact that the fabric was cut and assembled in Mexico
disqualifies you from claiming 9802.00.9000; therefore, your HTS 9802.00.9000 claim was
false.” Compare Pl.’s Mot. app. at 121 with id. app. at 62. In July 2006, Tip Top paid Customs
$33,842.45. Pl.’s Statement of Material Facts ¶ 13; Pl.’s Mot. app. at 122-23.
Court No. 07-00171 Page 7
D. Judicial Proceedings
On May 18, 2007, plaintiff commenced this action to recover a penalty and additional
duties. Summons; Compl. ¶ 1. On June 9, 2009, defendants moved to dismiss the complaint as
to Mr. Nigri for failure to state a claim upon which relief can be granted. Notice of Mot. to
Dismiss the Compl. against Sadi Nigri for Failure to State a Claim upon which Relief Can Be
Granted pursuant to USCIT R. 12(b)(5), at 1 (“Mot. to Dismiss”). Two days later, plaintiff
moved for summary judgment against both defendants for a civil penalty of $55,636.90 and
unpaid duties and interest of $1,640.53, for which it alleges a degree of culpability of negligence.
Pl.’s Mot. 13.
The court’s previous Opinion and Order denied plaintiff’s motion for summary judgment,
dismissed Mr. Nigri as a defendant, and directed counsel for plaintiff, in consultation with
counsel for defendant, to submit a proposed schedule for the remainder of the proceedings. Tip
Top I, 34 CIT at __, Slip Op. 10-5, at 20. Instead of responding to the order to submit a proposed
schedule, plaintiff moved on February 12, 2010 for partial reconsideration of the court’s denial of
its motion for summary judgment pursuant to USCIT Rule 59. Reconsideration Mot. On
March 8, 2010, defendant filed its response opposing plaintiff’s motion for partial
reconsideration. Def.’s Opp’n. On March 26, 2010, plaintiff moved for leave to file a reply to
defendant’s opposition. Pl.’s Unopposed Mot. for Leave to File Reply in Supp. of its Mot. for
Reconsideration; Pl.’s Reply in Supp. of its Mot. for Partial Reconsideration (“Pl.’s Reply”).
II. DISCUSSION
USCIT Rule 59 provides a rehearing “for any reason for which a rehearing has heretofore
been granted in a suit in equity in federal court.” USCIT Rule 59(a)(1)(B). The granting or
Court No. 07-00171 Page 8
denying of a motion for reconsideration lies within “the sound discretion of the court.” United
States v. Gold Mountain Coffee, Ltd., 8 CIT 336, 336, 601 F. Supp. 212, 214 (1984). “The major
grounds justifying reconsideration are an intervening change of controlling law, the availability
of new evidence, or the need to correct a clear error or prevent manifest injustice.” Royal Thai
Gov’t v. United States, 30 CIT 1072, 1074, 441 F. Supp. 2d 1350, 1354 (2006) (internal
quotation marks and citation omitted). The purpose of reconsideration is “to direct the Court’s
attention to some material matter of law or fact which it has overlooked in deciding a case, and
which, had it been given consideration, would probably have brought about a different result.”
Target Stores, Div. of Target Corp. v. United States, 31 CIT 154, 159, 471 F. Supp. 2d 1344,
1349 (2007) (quoting Agro Dutch Indus. Ltd. v. United States, 29 CIT 250, 254 (2005)).
In support of its motion, plaintiff argues that “the Court misapprehended the facts
concerning the administrative proceedings in this matter, and this reconsideration is necessary to
prevent manifest injustice.” Reconsideration Mot. 2. As facts claimed to have been
misapprehended by the court, plaintiff states that the court’s Opinion and Order “does not take
into account [1] that CBP amended its original penalty notice to Tip Top altering the original
basis for penalty; [2] that Tip Top never formally responded to the amended penalty; and, [3] that
Tip Top has never contended that CBP failed to follow administrative procedures.”3 Id. at 3.
3
The alleged fact that “Tip Top never formally responded to the amended penalty” and
the alleged fact that “Tip Top has never contended that CBP failed to follow administrative
procedures” are not included in plaintiff’s Rule 56(h)(1) statement of material facts. See Pl.’s
Statement of Material Facts. Because the motion now before the court is a motion for
reconsideration, the court is not required to consider new factual assertions plaintiff makes for
the first time. But as discussed infra, these allegations, even if assumed to be true, do not address
the problem that the procedure followed by Customs was in violation of statutory and regulatory
requirements.
Court No. 07-00171 Page 9
Plaintiff’s argument that the court did not take into account the “amended penalty notice
altering the original basis for penalty,” id., is incorrect. The court discussed that document in its
Opinion and Order. Tip Top I, 34 CIT at __, Slip-Op. 10-5, at 9. Although plaintiff alleged in
support of summary judgment that “CBP amended its original penalty notice to Tip Top altering
the original basis for penalty,” Reconsideration Mot. 3, the court correctly held that plaintiff
failed to put forth facts by which the court could conclude that the issuance of this document
cured the apparent procedural defect. Tip Top I, 34 CIT at __, Slip-Op. 10-5, at 9. As the court
stated, “[i]f agency action on Tip Top’s Petition was still pending at the time Customs issued the
second Customs Form 5955A, and if no decision under 19 U.S.C. § 1618 was ever issued, then
the requirements of the statute and the regulations were not satisfied.” Id. at __, Slip-Op. 10-5,
at 9-10. Plaintiff’s argument that the court failed to consider what plaintiff terms as the
“amended penalty notice” is incorrect in assuming that the second Customs Form 5955A was
issued in accordance with law, even though Customs was obligated instead to issue a written
decision on the mitigation petition.
Plaintiff argues, further, that “[b]ecause the second notice effectively superseded the
original notice and was based upon a different legal principle, it follows then that CBP had no
obligation to file a written response to Tip Top’s mitigation claim concerning the original
notice.” Reconsideration Mot. 6. This argument is refuted by the statute and the Customs
regulations. The latter direct that “[i]f a petition for relief relates to a violation of section[ ] 592
. . . , the petitioner will be provided with a written statement setting forth the decision on the
matter and the findings of fact and conclusions of law upon which the decision is based.”
19 C.F.R. § 171.21 (2009) (emphasis added). Neither the statute nor the regulation provides an
Court No. 07-00171 Page 10
exception under which Customs, instead of issuing the written statement required by
Section 592(b)(2) and 19 C.F.R. § 171.21, may issue a document purporting to bring an
“amended” penalty claim alleging a different violation, even though the petition that is the
subject of § 171.21 has been timely filed. See 19 U.S.C. § 1592(b); 19 C.F.R. § 171.21.
As support for its conclusion that Customs had no obligation to respond to Tip Top’s
petition, plaintiff explains that “[i]n September 2005, the Office of Rules & Regulations
(“OR&R”) at CBP requested that Laredo Fines, Penalties & Forfeiture (“FP&F”) amend the
penalty notice because, as Tip Top contended, the original penalty notice did not allege an
offense.” Reconsideration Mot. 5. The Reconsideration Motion further states that
“[a]ccordingly, OR&R gave FP&F the option of either cancelling the penalty, amending the
penalty to state that Tip Top filed a false 9802.00.9000 entry, or issuing a 19 U.S.C. § 1509(g)
penalty in lieu of, or in addition to, a 19 U.S.C. § 1592 penalty” and that “FP&F elected to amend
the penalty notice to state that Tip Top filed a false entry.” Id.
Although plaintiff admits that Customs determined, as Tip Top had contended, that what
Customs alleged in the penalty notice issued under Section 592(b)(2) was not a violation of
Section 592,4 the Reconsideration Motion fails to appreciate the significance of this point.
Plaintiff admits, in effect, that Customs had reached the conclusion of law that its claim of a
violation of Section 592, as stated in the penalty notice, was invalid. At that point, Customs was
4
The alleged failure of Tip Top to respond to the Customs Form 28 which was the
violation claimed in the penalty notice (and also the pre-penalty notice) was not a violation of
Section 592. The cover letter to the penalty claim refers to an alleged failure by Tip Top to
submit a requested NAFTA Certificate of Origin within the time allowed. Pl.’s Mot. for Summ.
J. app. at 60. The latter allegation also was insufficient under Section 592 and is puzzling in that
the entry summary does not appear to indicate a claim for the NAFTA preference. See id. app.
at 25-26.
Court No. 07-00171 Page 11
required to set forth “the decision on the matter,” 19 C.F.R. § 171.21, including in particular the
negative conclusion of law it had reached, in the written statement required by Section 592(b)(2),
thus bringing to an end the “proceeding under such section 1618” to which Section 592(b)(2)
refers. 19 U.S.C. § 1592(b)(2). As plaintiff admits in its Reconsideration Motion, no such
statement was ever issued.
Plaintiff’s argument that the court’s Opinion and Order “does not take into account . . .
that Tip Top never formally responded to the amended penalty,” Reconsideration Mot. 3, is also
meritless. In support of this argument, plaintiff submits that “Tip Top’s failure to respond to the
amended notice vitiated any obligation for CBP [ ] to issue a written report pursuant to
section 1618.” Id. at 6. This argument wrongly presumes that Tip Top somehow was obligated
to respond to the second Customs Form 5955A even though the issuance of that document was in
violation of law.
Plaintiff’s related argument that the court’s Opinion and Order “does not take into
account that . . . Tip Top has never contended that CBP failed to follow administrative
procedures,” id. at 3, is not a basis for reconsideration of the denial of plaintiff’s summary
judgment motion. Plaintiff is not entitled to summary judgment unless the pleadings and related
submissions on file demonstrate that there is no genuine issue of material fact and that plaintiff is
entitled to judgment as a matter of law. USCIT Rule 56(c). From the facts plaintiff has put forth
thus far, the court cannot conclude, for purposes of satisfying the standard for summary
judgment, that Customs has adhered to statutory and regulatory procedures that would allow
recovery of a civil penalty on the Section 592 claim at issue in this case.
Court No. 07-00171 Page 12
Similarly, plaintiff argues that “[e]ven assuming that CBP should have issued a written
response, Tip Top has failed to proffer any evidence that it suffered substantial prejudice” and
that, in any event, no prejudice occurred because Tip Top, having paid most of the duties without
complaint and having participated in this litigation, received adequate notice of the CBP claims.
Reconsideration Motion 7; see Pl.’s Reply 2-5. Plaintiff relies on Dixon Ticonderoga Co. v.
United States, 468 F.3d 1353 (Fed. Cir. 2006), and PAM, S.p.A. v. United States, 463 F. 3d 1345
(Fed. Cir. 2006), for the proposition that any procedural error that occurred, which plaintiff
submits would be harmless, did not invalidate the agency’s action. Id. These two cases, each of
which involves procedures under statutes other than Section 592, are not on point. In Dixon, the
issue before the Court of Appeals for the Federal Circuit was whether the late publication by
Customs of a Notice of Intent to Distribute prejudiced Dixon’s right to file a timely application
for distributions under the Continued Dumping and Subsidy Offset Act (“CDSOA”). Dixon, 468
F.3d at 1354-55. In PAM, at issue was whether PAM, a foreign pasta exporter, was required to
show substantial prejudice in challenging the failure to serve it with a domestic pasta producer’s
request for administrative review in response to antidumping orders by the United States
Department of Commerce. PAM, 463 F. 3d at 1346-47.
Plaintiff also argues that “CBP’s actions may not be set aside where the error was
harmless or the defendant was given sufficient opportunity to be heard,” citing United States v.
Rotek, Inc., 22 CIT 503 (1998), United States v. JAC Natori Co., 17 CIT 348, 821 F. Supp. 1514
(1993), and United States v. Obron Atl. Corp., 18 CIT 771, 862 F. Supp. 378 (1994).
Reconsideration Mot. 7-8. These cases, although involving Section 592, also are inapposite. All
involve the refusal by Customs to rule on a supplemental petition; supplemental petitions are not
Court No. 07-00171 Page 13
required by the statute and are governed entirely by the Customs regulations. None of these
cases involves a failure to comply with a statutory requirement. In contrast, one of the issues
presented by this case involves the statutory requirement in Section 592(b)(2) to issue a written
decision at the conclusion of a 19 U.S.C. § 1618 proceeding and a regulation, 19 C.F.R.
§ 171.21, which, in construing the statutory requirement, directs Customs to issue such written
decision if the petition contemplated by Section 592(b)(2) is submitted. It also presents the
question of whether the United States may recover on a claim of an alleged Section 592 violation
that was not made in the only penalty notice that was issued according to the procedures the
statute and regulations require.5
In summary, none of the cases plaintiff cites supports a conclusion that, on the facts of
this case as developed in the summary judgment proceeding, plaintiff may overcome the effect of
the procedural violation through a showing that Tip Top was not prejudiced thereby. At this
stage of the case, the court need not decide the question of whether such a showing will suffice
because plaintiff, in seeking summary judgment, has not demonstrated that prejudice to Tip Top
did not occur. Plaintiff argues that Tip Top has wholly failed to demonstrate prejudice to the
extent Tip Top’s prejudice claim is not waived. Pl.’s Reply 2-3. The determination of whether
and to what extent prejudice to Tip Top occurred as a result of the procedural violation involves
questions of fact that have not been resolved, and the court disagrees that Tip Top, at this stage of
the litigation, already has waived an opportunity to establish prejudice. One fact relevant to a
5
The Court of International Trade previously has held that the United States may sue in
the Court of International Trade to recover on a Section 592 penalty claim only after perfecting
that same claim according to the procedures required by Section 592(b). United States v. Optrex
Am., Inc., 29 CIT 1494 (2005).
Court No. 07-00171 Page 14
prejudice determination is plaintiff’s admission that Customs continued the penalty proceeding in
September 2005 after reaching an administrative decision that the penalty claim was invalid. See
Reconsideration Mot. 5.
III. CONCLUSION
The Reconsideration Motion must be denied because it fails to demonstrate that the court
erred in denying plaintiff’s motion for summary judgment.
ORDER
Upon consideration of all papers and proceedings herein, it is hereby
ORDERED that Plaintiff’s Unopposed Motion for Leave to File Reply in Support of Its
Motion for Reconsideration, be, and hereby is, GRANTED; it is further
ORDERED that plaintiff’s reply is deemed filed; it is further
ORDERED that plaintiff’s motion for partial reconsideration, as filed on February 12,
2010, be, and hereby is, DENIED; and it is further
ORDERED that counsel for both parties shall appear before the court for a conference on
September 1, 2010, at 11:00 a.m. in Courtroom 3 of the James L. Watson Courthouse, United
States Court of International Trade, New York, New York. Counsel shall be prepared to discuss
scheduling for the remainder of these proceedings and the preliminary identification of issues to
be resolved at trial. To assist the court in scheduling, the court requests that counsel advise the
court of the status of their discussions, if any, directed to possible settlement of this matter.
/s/ Timothy C. Stanceu
Timothy C. Stanceu
Judge
Dated: August 13, 2010
New York, New York
| {
"pile_set_name": "FreeLaw"
} |
Case: 13-20206 Document: 00512651962 Page: 1 Date Filed: 06/04/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
June 4, 2014
No. 13-20206 Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA; THE STATE OF TEXAS, ex rel, ABBY
KRISTEN JOHNSON,
Plaintiff - Appellant
v.
PLANNED PARENTHOOD OF HOUSTON AND SOUTHEAST TEXAS,
INCORPORATED,
Defendant - Appellee
Appeals from the United States District Court
for the Southern District of Texas
USDC No. 4:10-CV-3496
Before KING, HAYNES, and GRAVES, Circuit Judges.
PER CURIAM:*
Abby Kristen Johnson (“Johnson”), acting as relator on behalf of the
United States and the State of Texas, brought suit against Planned
Parenthood Gulf Coast, a.k.a. Planned Parenthood of Houston and Southeast
Texas, Inc. (“Planned Parenthood”), alleging that it engaged in fraudulent
billing practices in violation of the False Claims Act (“FCA”), 31 U.S.C. § 3729,
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
Case: 13-20206 Document: 00512651962 Page: 2 Date Filed: 06/04/2014
No. 13-20206
et seq., and the Texas Medicaid Fraud Prevention Act (“TMFPA”), TEX. HUM.
RES. CODE § 36.001, et seq. Planned Parenthood filed a Federal Rule of Civil
Procedure 12(b)(1) motion to dismiss, arguing that the district court lacked
subject matter jurisdiction because of a previously-filed qui tam suit that
alleged the same fraudulent scheme. The district court granted the motion
and denied Johnson’s Federal Rule of Civil Procedure 60(b)(6) motion filed
after the court had dismissed the case. Johnson timely appealed. We AFFIRM.
I. Factual and Procedural Background
Johnson, a former Planned Parenthood employee, sued Planned
Parenthood, alleging that it repeatedly filed various false, fraudulent, and/or
ineligible claims for Medicaid reimbursements with both state and federal
billing agencies. Specifically, she alleged that Planned Parenthood: (a) falsely
billed the Texas Women’s Health Program 1 (“TWHP”) for non-reimbursable
procedures and services performed during a client visit when the primary
purpose of the visit was not for contraceptive management as required by the
TWHP; (b) falsely billed the TWHP for unperformed laboratory tests, and
supported such false billings with false notations in client charts; (c) falsely
billed non-contraceptive management-related procedures and services by
making false notations in client charts and not referring those clients to
another physician or clinic for treatment; (d) filed more than 87,000 false
claims with the TWHP, from which it wrongfully received and retained
reimbursements totaling at least $5,701,055; and (e) acknowledged to Johnson
and other employees that it would conceal from the TWHP that it had received
improper reimbursements from it and would retain such reimbursements.
1 The TWHP is a Title XIX Medicaid waiver program jointly funded by the federal and
state governments. Planned Parenthood Ass’n of Hidalgo Cnty. Tex., Inc. v. Suehs, 692 F.3d
343, 346 (5th Cir. 2012). At the time Johnson filed this complaint, the TWHP was largely
federally funded. Id.
2
Case: 13-20206 Document: 00512651962 Page: 3 Date Filed: 06/04/2014
No. 13-20206
Prior to Johnson’s action, Karen Reynolds (“Reynolds”), acting as relator
on behalf of the United States and the State of Texas, filed a qui tam suit in
the Eastern District of Texas against Planned Parenthood for treble damages
and civil penalties also arising from alleged fraudulent billing activity in
violation of the FCA and TMFPA. Reynolds alleged the following conduct: (a)
billing for medical services not rendered; (b) billing for unnecessary medical
services; (c) creating false information relative to billing in medical records; (d)
creating false documentation in an attempt to demonstrate compliance with
various governmental program requirements; and (e) conspiring to violate the
FCA and TMFPA. See United States ex rel. Karen Reynolds v. Planned
Parenthood of Hous. & Se. Tex., Inc., et al., Case No. 9:09-cv-00124-RC. After
Johnson’s Original Complaint and Second Amended Complaint were unsealed,
Planned Parenthood moved to dismiss Johnson’s action, alleging that the
district court lacked subject matter jurisdiction over the case because the
action is barred under the FCA’s and TMFPA’s “first-to-file” bar. The district
court granted Planned Parenthood’s motion to dismiss, and Johnson timely
appealed.
Following the district court’s order dismissing Johnson’s Second
Amended Complaint, the Reynolds case settled (hereinafter, “Reynolds
settlement”). Johnson then filed a Rule 60(b)(6) motion, claiming that the
Reynolds settlement originally was going to include language acknowledging
that the fraud scheme alleged in Reynolds’ complaint was distinct from the
scheme alleged in Johnson’s complaint. Such language was never included in
the settlement. The district court denied her motion, and Johnson amended
her notice of appeal to include the district court’s denial of her Rule 60(b)(6)
motion.
3
Case: 13-20206 Document: 00512651962 Page: 4 Date Filed: 06/04/2014
No. 13-20206
II. Discussion
A. Motion to Dismiss
We review the district court’s dismissal for lack of subject matter
jurisdiction de novo as to the application of the law and for clear error as to any
disputed factual findings. United States ex rel. Branch Consultants v. Allstate
Ins. Co., 560 F.3d 371, 376 (5th Cir. 2009). Subject matter jurisdiction is
determined at the time the action is brought. Home Capital Collateral, Inc. v.
FDIC, 96 F.3d 760, 762 (5th Cir. 1996). The plaintiff has the burden of
establishing subject matter jurisdiction. Arena v. Graybar Elec. Co., 669 F.3d
214, 223 (5th Cir. 2012).
Under certain circumstances, the FCA permits “suits by private parties
on behalf of the United States against anyone submitting a false claim to the
government[.]” Branch, 560 F.3d at 376 (citation and internal quotation marks
omitted). The FCA’s qui tam provisions seek to encourage suits from
whistleblowers with “genuinely valuable information,” while also discouraging
“opportunistic plaintiffs from filing parasitic lawsuits 2 that merely feed off
previous disclosures of fraud.” Id. To achieve these goals, there are a number
of jurisdictional limits on the FCA’s qui tam provisions, including its first-to-
file bar, which provides that the district court lacks subject matter jurisdiction
to hear the claim if a previously-filed suit contains the same “material
elements” or “essential facts” as the later-filed suit. See id. at 377–78. The
focus is on whether an investigation into the first claim would uncover the
same fraudulent activity alleged in the second claim. See id. at 378. The first-
to-file bar is a relatively broad bar to later-filed actions. See, e.g., Branch, 560
2 Nothing in this record suggests that Johnson’s lawsuit was “parasitic.” Indeed,
there is no indication that Johnson was aware of Reynolds’s lawsuit when Johnson filed her
suit, and it appears Johnson’s suit was based upon her own knowledge. However, the first-
to-file bar still applies. See Branch, 560 F.3d at 377-78. Any resulting unfairness is a matter
for Congress, not this court.
4
Case: 13-20206 Document: 00512651962 Page: 5 Date Filed: 06/04/2014
No. 13-20206
F.3d at 377 (noting that “a ‘broader bar’ furthers the purpose of the FCA’s qui
tam provisions by ensuring a ‘race to the courthouse among eligible relators,
which may spur the prompt reporting of fraud’”) (citation omitted). The
TMFPA has a similar first-to-file bar. 3
Reynolds’ complaint alleged that Planned Parenthood fraudulently
billed Title XIX Medicaid as well as other federal and state programs, but did
not specifically mention any particular Medicaid programs. The Johnson
complaint, on the other hand, specifically alleged that Planned Parenthood
falsely billed the TWHP. However, because both the Johnson and Reynolds
complaints allege that Planned Parenthood’s billing practices caused them to
fraudulently receive funding from United States and Texas Medicaid
programs, it is likely that an investigation into the allegations contained in
Reynolds’ complaint would have uncovered the same fraudulent activity
alleged by Johnson’s complaint, especially given that the TWHP is a federally-
funded Texas Medicaid program. See Suehs, 692 F.3d at 346. Considering that
this court has previously held that fraudulent filings occurring in different
states would be discovered through a thorough investigation into the filing
system of an insurance company, it is likely that an investigation into
fraudulent Medicaid filings would uncover fraudulent filings for related
programs, as the alleged fraudulent activity occurred within the same offices.
See Branch, 560 F.3d at 378. 4
3 The FCA’s first-to-file bar states that “[w]hen a person brings an action under this
subsection, no person other than the Government may intervene or bring a related action
based on the facts underlying the pending action.” 31 U.S.C. § 3730(b)(5). The TMFPA’s
first-to-file bar operates the same way as the FCA’s first-to-file bar. See TEX. HUM. RES.
CODE § 36.106 (“A person other than the state may not intervene or bring a related action
based on the facts underlying a pending action brought under this subchapter.”). Neither
side argues that the two statutes should be applied differently in this case.
Branch concerned a first-filed claim alleging insurance fraud arising out of wind
4
damage and flood damage claims for Mississippi properties. 560 F.3d at 374. The second
5
Case: 13-20206 Document: 00512651962 Page: 6 Date Filed: 06/04/2014
No. 13-20206
Johnson’s second argument is that her allegations of fraud were different
in kind because Reynolds alleged that fraud involved billing for medical
services not performed whereas Johnson alleged that the services were
performed but improperly coded. However, both complaints essentially allege
that fraud was committed by altering patient records and billing Medicaid
programs for services other than those rendered, and the additional, specific
facts added by Johnson are not sufficient to make the alleged fraudulent
activity sufficiently distinct to avoid the first-to-file bar. See Branch, 560 F.3d
at 378 (holding that the relator cannot avoid the first-to-file bar “by simply
adding factual details . . . to the essential or material elements of a fraud claim
against the same defendant”). 5
B. Denial of Rule 60(b)(6) Motion
To prevail in a Rule 60(b)(6) motion, the plaintiff must show that
“extraordinary circumstances” apply. Adams v. Thaler, 679 F.3d 312, 319 (5th
Cir. 2012). Johnson’s Rule 60(b)(6) motion purports to make the district court
“aware of developments in the Reynolds case,” specifically that Johnson’s
counsel participated in settlement discussions in which the parties agreed to
state that the Reynolds settlement did not apply to Johnson’s complaint.
complaint contained identical allegations, except that it also alleged facts concerning ten
additional properties in Louisiana. Id. at 378. Branch was precluded from bringing these
claims under the first-to-file bar even though they alleged different geographic locations
because an investigation into the fraudulent scheme alleged in the first complaint would
result in finding identical fraudulent behavior, even across geographic locations. Id.
5In passing, Johnson argues that because Planned Parenthood had moved to dismiss
Reynolds’ complaint for failure to state a claim under Rule 12(b)(6), that complaint could not
have sufficiently placed the government on notice of any fraudulent scheme, much less the
one she alleged. Whatever the merits of such an argument in a hypothetical case of a “bare
bones” complaint, we conclude it lacks merit as to the particular complaint filed by Reynolds.
See Branch, 560 F.3d at 378 n.10.
6
Case: 13-20206 Document: 00512651962 Page: 7 Date Filed: 06/04/2014
No. 13-20206
We have previously held that a settlement is irrelevant to the first-to-
file analysis because the first-to-file analysis requires comparison of the two
original complaints. See United States ex rel. Smart v. Health, No. 13-40785,
2014 WL 1474282, at *1 (5th Cir. April 16, 2014) (unpublished); 6 see also
United States ex rel. Jamison v. McKesson Corp., 649 F.3d 322, 328 (5th Cir.
2011) (holding that the original complaint is the appropriate complaint for
determining whether the FCA’s public disclosure jurisdictional bar applies).
Therefore, the fact of the settlement negotiations does not rise to the level of
an extraordinary circumstance because it would not alter the analysis
performed by the district court. See Adams, 679 F.3d at 319. Accordingly, the
district court did not abuse its discretion in denying the Rule 60(b)(6) motion.
See Pease v. Pakhoed Corp., 980 F.2d 995, 998 (5th Cir. 1993).
AFFIRMED.
6Although Smart is not controlling precedent, we cite it for its persuasive authority.
See Ballard v. Burton, 444 F.3d 391, 401 n.7 (5th Cir. 2006) (citing 5TH CIR. R. 47.5.4).
7
| {
"pile_set_name": "FreeLaw"
} |
DISMISS; and Opinion Filed February 27, 2014.
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-13-01663-CR
EX PARTE BRIAN CLONINGER, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 292nd Judicial District Court
Dallas County, Texas
Trial Court Cause No. WX13-90036-V
MEMORANDUM OPINION
Before Justices Lang-Miers, Myers, and Lewis
Opinion by Justice Lang-Miers
Appellant is charged by indictment with injury to a child resulting in serious bodily
injury. See TEX. PENAL CODE ANN. § 22.04(a) (West 2011). Bond was initially set at
$2,282,000. After a series of hearings, the trial court set appellant’s bond at $500,000 cash or
$2,500,000 surety. Appellant filed a pretrial “application for writ of habeas corpus” seeking bail
reduction, arguing the bail is excessive pursuant to Texas Code of Criminal Procedure article
17.151. After a hearing, the trial court ordered appellant’s bail would continue at $500,000.
This appeal followed.
In two issues, appellant asserts the trial court abused its discretion by denying the bail
reduction because the amount set is excessive and oppressive in violation of the Texas Code of
Criminal Procedure and the United States and Texas Constitutions. On February 5, 2014, the
Texas Court of Criminal Appeals held there is no constitutional or statutory authority granting
the courts of appeals jurisdiction to review interlocutory appeals regarding excessive bail or the
denial of bail. Ragston v. State, No. PD-0824-13, 2014 WL 440964 (Tex. Crim. App. Feb. 5,
2014). Accordingly, we lack jurisdiction to consider appellant’s interlocutory appeal of the trial
court’s ruling on his pretrial motion for bail reduction. Id.
We dismiss this appeal for want of jurisdiction.
/Elizabeth Lang-Miers/
ELIZABETH LANG-MIERS
JUSTICE
Do Not Publish
TEX. R. APP. P. 47.2(b)
131663F.U05
–2–
S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
EX PARTE BRIAN CLONINGER On Appeal from the 292nd Judicial District
Court, Dallas County, Texas
No. 05-13-01663-CR Trial Court Cause No. WX13-90036-V.
Opinion delivered by Justice Lang-Miers.
Justices Myers and Lewis participating.
Based on the Court’s opinion of this date, this appeal is DISMISSED for want of
jurisdiction.
Judgment entered this 27th day of February, 2014.
/Elizabeth Lang-Miers/
ELIZABETH LANG-MIERS
JUSTICE
–3–
| {
"pile_set_name": "FreeLaw"
} |
Filed 8/25/14 Chaudhary v. Gupta 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
KAILASH CHANDRA CHAUDHARY,
H039955
Plaintiff and Appellant, (Santa Clara County
Super. Ct. No. CV237731)
v.
CHANDRA GUPTA,
Defendant and Respondent.
I. INTRODUCTION
Appellant Kailash Chandra Chaudhary discovered in 2007 that his friend Girdhari
Gupta, to whom Chaudhary had given power of attorney while he was incarcerated, had
sold Chaudhary’s home for $155,000 instead of $99,000 as Chaudhary had believed. In
2009, Chaudhary brought an action arising from the allegedly fraudulent home sale that
did not name Girdhari’s wife, respondent Chandra Gupta, as a defendant. (Chaudhary v.
Stevens (Super. Ct. Santa Clara County, No. 109CV149223.) Chaudhary subsequently
learned during Girdhari’s deposition that Chandra1 had received a portion of the escrow
1
For purposes of clarity and meaning no disrespect, we will refer to Girdhari
Gupta and respondent Chandra Gupta by their first names. Although the record reflects
that respondent was erroneously sued as “Chandra Gupta” because her name is spelled
“Chanda Gupta,” the case caption retains the name “Chandra Gupta.” We will therefore
refer to respondent as “Chandra” throughout our opinion.
proceeds from the allegedly fraudulent home sale. Chaudhary did not amend the
complaint in Chaudhary v. Stevens, supra, No. 109CV149223 to substitute Chandra for a
Doe defendant. Instead, in December 2012, Chaudhary filed the present action against
Chandra alone, alleging that she was liable for her involvement in the fraudulent home
sale.
Chandra filed a motion for judgment on the pleadings on the ground that the action
against her was time-barred under the three-year limitations period provided by Code of
Civil Procedure section 338, subdivisions (c)(1) and (d).2 The trial court granted the
motion and entered a judgment of dismissal in Chandra’s favor. On appeal, Chaudhary
argues that the trial court erred in granting the motion for judgment on the pleadings
because Chandra intentionally concealed her identity during the limitations period.
Chaudhary also argues that the trial court abused its discretion in denying leave to amend
the complaint. For the reasons stated below, we disagree and therefore we will affirm the
judgment of dismissal.
II. FACTUAL AND PROCEDURAL BACKGROUND
A. Prior Related Action
On August 6, 2009, Chaudhary filed a complaint naming Barbara Stevens,
California Land Title Co., and Old Republic Title Co. as defendants. (Chaudhary v.
Stevens, supra, No. 109CV149223.) According to the complaint’s allegations,
Chaudhary was incarcerated in 1986. During his incarceration, Chaudhary gave Girdhari,
his “very close friend[],” power of attorney to manage Chaudhary’s personal and
financial affairs.
Chaudhary did not learn until 2007 that Girdhari had conspired with defendants to
commit fraud in connection with the 1987 sale of Chaudhary’s home. The fraud
2
All statutory references hereafter are to the Code of Civil Procedure unless
otherwise indicated.
2
allegedly consisted of the following: Girdhari told Chaudhary that his house would sell
for at most $99,000; Girdhari then sold the home to Stevens for $99,000 on December 22,
1987; on the same day, December 22, 1987, Stevens sold the home to Bruce Jackson for
$155,000, with the same title company handling both escrows; and Girdhari kept “the
secret profits” of the $155,000 sale “for himself and others.” At the time the home was
sold, Chaudhary “was in prison and needed money desperately to fight for the parental
rights of his daughter[.]”
Chaudhary subsequently filed a first amended complaint, dated June 11, 2010, in
which he expanded on the allegations regarding the defendant title companies. The first
amended complaint also added the allegation that “Defendants used some of the
[Chaudhary] escrow proceeds to give money to family members of [Girdhari]. This
conduct resulted in the theft of an additional $40,000.”
On March 7, 2011, Chaudhary filed a second amended complaint that alleged,
among other things, that “Doe #1 and [Girdhari] misappropriated [Chaudhary’s] escrow
proceeds by allowing checks to be written in excess of $40,000 to third parties who did
not have liens on [Chaudhary’s] Home, and who had no right to receive such funds.
Also, Defendants used some of [Chaudhary’s] escrow proceeds to give money to family
members of [Girdhari].” The second amended complaint also included the allegation that
“Stevens, Defendant DOE #1, [Girdhari] and Does 2–5 had a scheme to defraud
[Chaudhary] and keep the secret profits for themselves and others.”
The clerk’s transcript submitted with the record on appeal includes a register of
actions that indicates that Chaudhary v. Stevens, supra, No. 109CV149223 was settled on
February 28, 2012.3
3
Chaudhary also states that he filed a prior action against Girdhari arising from
the same allegations of a fraudulent home sale, which was settled on an unspecified date.
3
B. Present Action
On December 13, 2012, Chaudhary filed the complaint in the present action. The
only named defendant was Girdhari’s wife, Chandra.
Chaudhary asserted that “[p]rior to being appointed as [Chaudhary’s] attorney-in-
fact, [Chaudhary] and [Girdhari] were very close friends for about twenty years and
[Chaudhary] trusted [Girdhari]. Both families had close ties, belonged to the same class
of Indian-Hindus, spoke the same languages and same dialects, their children played
together, celebrated functions together, and celebrated every birthday of their children
together.”
Chaudhary again alleged that he had given Girdhari power of attorney to manage
Chaudhary’s personal and financial affairs after he was incarcerated in 1986, and that
Girdhari committed fraud in connection with the 1987 sale of Chaudhary’s home. The
fraud was the same scheme that had been alleged in the prior action, Chaudhary v.
Stevens, supra, No. 109CV149223: that Chaudhary did not learn until 2007 that Girdhari
had conspired with others to secretly sell Chaudhary’s home for $155,000 on the same
day the home was purportedly sold to Stevens for $99,000. Chaudhary asserted that
Girdhari’s family members had received approximately $40,000 from escrow proceeds,
including Chandra’s acceptance of $9,000 for herself.
According to Chaudhary, “he did not learn that Defendant Chandra Gupta had
participated in the fraud until he took Girdhari Gupta’s deposition in [Chaudhary’s] prior
lawsuit against Old Republic Title Company in the year 2011 (when Defendant Girdhari
Gupta answered questions in connection with an escrow ledger and revealed the secret
name of his wife (Defendant Chandra Gupta) and other family members). During
Girdhari Gupta’s testimony, he answered questions in connection with an escrow closing
document and made [Chaudhary] aware that Defendant Chandra Gupta had accepted
$9,000 from the proceeds of [Chaudhary’s] escrow and had her family members accept
[an] additional $27,000.”
4
Chaudhary also asserted that “[b]oth Girdhari and Chandra Gupta were involved
in the parental right[s] case. [Chaudhary] was requesting their assistance. He was asking
them to visit his daughter at the foster parents’ home, and they did visit [his] daughter.”
Based on these allegations, the causes of action in the complaint included fraud
(concealment), unjust enrichment, conversion, and money had and received.
C. Motion for Judgment on the Pleadings
Defendant Chandra filed a motion for judgment on the pleadings on the ground
that the action was time-barred under the three-year statute of limitations provided by
section 338, subdivisions (c)(1) and (d) for claims of fraud and conversion. In support of
her motion, Chandra requested judicial notice of the original complaint, the first amended
complaint, and the second amended complaint in Chaudhary v. Stevens, supra,
No. 109CV149223.
Chandra argued that review of the pleadings in Chaudhary v. Stevens, supra,
No. 109CV149223 showed that Chaudhary’s causes of action accrued no later than
December 8, 2007, the date when Chaudhary allegedly discovered the fraudulent double
escrow scheme to sell his home for $155,000, not $99,000 as he had previously believed.
At that time, Chandra explained, Chaudhary knew that he “had been injured by not
receiving the full proceeds from the sale of [his] home” and knew “that at least one
person, [Girdhari], had wronged him.” Since the complaint in this case was not filed
until December 2012, Chandra argued that it was barred under the three-year statute of
limitations.
Anticipating that Chaudhary would argue that Chandra was equitably estopped
from asserting the statute of limitations as a defense because her identity was fraudulently
concealed, Chandra argued that ignorance of a defendant’s identity did not toll the
statute. Chandra further argued that because Chaudhary alleged that he first learned of
her identity during a 2011 deposition taken in Chaudhary v. Stevens, supra,
5
No. 109CV149223, he could have amended the complaint in that action to substitute
Chandra for a Doe defendant within the applicable limitations period.
In opposition to the motion for judgment on the pleadings, Chaudhary maintained
that Chandra was equitably estopped from asserting the statute of limitations because he
did not learn of her conduct in connection with the fraudulent home sale until Girdhari’s
deposition was taken on February 7, 2012 (which he asserted was “erroneously stated in
the complaint as during the year 2011”) in Chaudhary v. Stevens, supra,
No. 109CV149223, and therefore his complaint was timely filed in December 2012.
Alternatively, Chaudhary argued that the issue of whether he should have learned
of Chandra’s identity as a potential defendant during discovery in the prior action,
Chaudhary v. Stevens, supra, No. 109CV149223, was a question of fact that precluded
judgment on the pleadings. Chaudhary also argued that he should be permitted to amend
his complaint to allege that Chandra had fraudulently concealed her identity prior to
February 7, 2012.
D. Trial Court Order
The trial court granted Chandra’s motion for judgment on the pleadings without
leave to amend in its April 25, 2013 order. Based upon its review of the complaint in the
present action and the pleadings in Chaudhary v. Stevens, supra, No. 109CV149223, of
which the trial court took judicial notice, the court determined that (1) Chaudhary knew
the essential facts about the fraudulent sale of his home no later than August 6, 2009;
(2) Chaudhary knew that Girdhari’s family members had shared in the proceeds of the
sale no later than March 7, 2011, when the second amended complaint was filed; (3) In
either 2011 or on February 7, 2012, Chaudhary learned at Girdhari’s deposition in
Chaudhary v. Stevens, supra, No. 109CV149223 that defendant Chandra had accepted
money from the sale; and (4) Chaudhary never sought leave to amend the complaint in
Chaudhary v. Stevens, supra, No. 109CV149223 to substitute Chandra for a Doe
defendant.
6
The trial court further determined that there were no allegations that Chandra had
“actively concealed her role in the 1987 transfer of [Chaudhary’s] home, and
[Chaudhary] learned [Chandra’s] identity during discovery in the 2009 lawsuit. Upon
learning [Chandra’s] identity, he should have amended his pleading by designating
[Chandra] in place of a Doe defendant. [Citation.] Had [Chaudhary] done so, his claims
against [Chandra] would not have been time[-]barred because the 2009 lawsuit was filed
fewer than two years after [Chaudhary] allegedly learned about the 1987 transfer.
[Citation.] Thus, [Chaudhary] is unable to invoke equitable estoppel to avoid the effect
of the statute of limitations. [Citation.]”
Chaudhary’s request for leave to amend was denied because the trial court found
that Chaudhary had not met his burden to show the defects in the complaint could be
cured by amendment and, in any event, “there does not appear to be any way in which
[Chaudhary] can cure defects with his pleading.”
A judgment of dismissal was entered on June 26, 2013. Chaudhary subsequently
filed a timely notice of appeal from the judgment of dismissal.
III. DISCUSSION
On appeal, Chaudhary argues that the trial court erred in granting the motion for
judgment on the pleadings because the doctrines of equitable tolling and equitable
estoppel preclude Chandra from asserting a statute of limitations defense. Alternatively,
Chaudhary argues that the trial court abused its discretion in denying leave to amend the
complaint. We will begin our analysis with the applicable standard of review.
A. Standard of Review
“Since 1994, motions for judgment on the pleadings have been authorized by
statute. (Stats.1993, ch. 456, § 5, pp. 2524–2527, adding [§] 438; Stats.1994, ch. 493,
§ 2, amending [§] 438.) Previously, they were allowed by common law. [Citations.]
Generally, as such motions were, so they remain.” (Gerawan Farming, Inc. v. Lyons
(2000) 24 Cal.4th 468, 482, fn.2.)
7
“In an appeal from a motion granting judgment on the pleadings, we accept as true
the facts alleged in the complaint and review the legal issues de novo. ‘A motion for
judgment on the pleadings, like a general demurrer, tests the allegations of the complaint
or cross-complaint, supplemented by any matter of which the trial court takes judicial
notice, to determine whether plaintiff or cross-complainant has stated a cause of action.
[Citation.] Because the trial court’s determination is made as a matter of law, we review
the ruling de novo, assuming the truth of all material facts properly pled.’ [Citation.]”
(Angelucci v. Century Supper Club (2007) 41 Cal.4th 160, 166; see also Ludgate Ins. Co.
v. Lockheed Martin Corp. (2000) 82 Cal.App.4th 592, 602.)
B. Statute of Limitations
The California Supreme Court has established the rules governing the affirmative
defense of the statute of limitations. A statute of limitations prescribes the period
“beyond which a plaintiff may not bring a cause of action. [Citations.]” (Fox v. Ethicon
Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 806 (Fox).) “[It] strikes a balance among
conflicting interests. If it is unfair to bar a plaintiff from recovering on a meritorious
claim, it is also unfair to require a defendant to defend against possibly false allegations
concerning long–forgotten events, when important evidence may no longer be available.”
(Pooshs v. Philip Morris USA, Inc. (2011) 51 Cal.4th 788, 797 (Pooshs).)
“Generally speaking, a cause of action accrues at ‘the time when the cause of
action is complete with all of its elements.’ [Citations.] An important exception to the
general rule of accrual is the ‘discovery rule,’ which postpones accrual of a cause of
action until the plaintiff discovers, or has reason to discover, the cause of action.
[Citations.]” (Fox, supra, 35 Cal.4th at pp. 806–807.) “Discovery of the cause of action
occurs when the plaintiff ‘has reason . . . to suspect a factual basis’ for the action.
[Citations.]” (Pooshs, supra, 51 Cal.4th at p. 797.)
“In order to rely on the discovery rule for delayed accrual of a cause of action, ‘[a]
plaintiff whose complaint shows on its face that his [or her] claim would be barred
8
without the benefit of the discovery rule must specifically plead facts to show (1) the time
and manner of discovery and (2) the inability to have made earlier discovery despite
reasonable diligence.’ [Citation.]” (Fox, supra, 35 Cal.4th at p. 808.)
However, the California Supreme Court has also instructed that “failure to
discover, or have reason to discover, the identity of the defendant does not postpone the
accrual of a cause of action, whereas a like failure concerning the cause of action itself
does. ‘. . . [T]he rationale for distinguishing between ignorance’ of the defendant and
‘ignorance’ of the cause of action itself ‘appears to be premised on the commonsense
assumption that once the plaintiff is aware of’ the latter, he [or she] ‘normally’ has
‘sufficient opportunity,’ within the ‘applicable limitations period,’ ‘to discover the
identity’ of the former. [Citation.]” (Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 399
(Norgart); see also Cypress Semiconductor Corp. v. Superior Court (2008)
163 Cal.App.4th 575, 587 [failure to discover the identity of the defendant does not
postpone accrual because the defendant’s identity is not an element of a cause of action].)
In the present case, as the parties agree, the limitations period for the causes of
action for fraud, conversion, and unjust enrichment is three years. (§ 338, subds. (c)(1) &
(d).) Where, as here, the cause of action for money had and received is based on fraud,
the limitations period is also governed by section 338 and is three years. (See First
Nationwide Savings v. Perry (1992) 11 Cal.App.4th 1657, 1670.) Thus, all causes of
action in Chaudhary’s complaint are subject to a three-year statute of limitations.
The face of the complaint reveals that, absent an exception, the present action
against Chandra is time-barred under the three-year limitations period provided by
section 338 because (1) the allegations show that Chaudhary discovered the factual basis
for his causes of action in 2007, when he learned that Girdhari had conspired with others
to secretly sell Chaudhary’s home for $155,000 on the same day the home was
purportedly sold for $99,000; and (2) the complaint against Chandra was not filed until
five years later, in 2012.
9
We understand Chaudhary to argue that the complaint was timely filed because the
three-year limitations period for his action against Chandra was tolled, or, alternatively,
that Chandra is estopped from asserting the statute of limitations, because her
involvement in the fraudulent home sale scheme was concealed until Girdhari’s
deposition in Chaudhary v. Stevens, supra, No. 109CV149223. We therefore turn to an
overview of equitable estoppel and tolling.
C. Equitable Estoppel
The California Supreme Court has explained that “[e]quitable tolling and equitable
estoppel are distinct doctrines. ‘ “Tolling, strictly speaking, is concerned with the point
at which the limitations period begins to run and with the circumstances in which the
running of the limitations period may be suspended. . . . Equitable estoppel, however, . . .
comes into play only after the limitations period has run and addresses . . . the
circumstances in which a party will be estopped from asserting the statute of limitations
as a defense to an admittedly untimely action because his [or her] conduct has induced
another into forbearing suit within the applicable limitations period. [Equitable estoppel]
is wholly independent of the limitations period itself and takes its life . . . from the
equitable principle that no [one] [may] profit from his [or her] own wrongdoing in a court
of justice.” ’ [Citations.]” (Lantzy v. Centex Homes (2003) 31 Cal.4th 363, 383.) Thus,
“ ‘ “ ‘[w]here the delay in commencing action is induced by the conduct of the defendant
it cannot be availed of by him [or her] as a defense.’ ” ’ [Citations.]” (Id. at p. 384.)
With regard to the plaintiff’s ignorance of a defendant, the California Supreme
Court has instructed that “a defendant may be equitably estopped from asserting the
statute of limitations when, as a result of intentional concealment, the plaintiff is unable
to discover the defendant’s actual identity.” (Bernson v. Browning-Ferris Industries
(1994) 7 Cal.4th 926, 936 (Bernson).) In other words, under the doctrine of equitable
estoppel an action filed after the limitations period has expired may proceed “ ‘[w]here
the plaintiff is unaware of the identity of the wrongdoer and this is due to fraudulent
10
concealment by the defendant.’ [Citation.]” (Prudential-LMI Com. Insurance v.
Superior Court (1990) 51 Cal.3d 674, 690 (Prudential).)
Under section 474,4 “when the plaintiff is ignorant of the name of ‘a defendant,’
the plaintiff must file suit against the known wrongdoers, and, when the Doe’s true name
is discovered, the complaint may be amended accordingly. [Citation.]” (Bernson, supra,
7 Cal.4th at p. 933.) The procedure for a Doe amendment was stated in Norgart:
“[S]ection 583.210, subdivision (a),[5] provides that the ‘complaint shall be served upon a
defendant within three years’ of its filing. Hence, the plaintiff can ‘file[] a timely
complaint under section 474 . . . . From the time such a complaint is filed,’ under section
583.210, subdivision (a), he [or she] ‘has three years,’ and the machinery of discovery,
‘to identify . . . the defendant,’ amend the complaint, and ‘serve [him] [or her] . . .,
effectively enlarging the . . . limitations period for three years’ through the doctrine that
the amended complaint ‘relates back’ to the original one. [Citation.]” (Norgart, supra,
21 Cal.4th at p. 398.)
“[I]t will be the rare and exceptional case in which the plaintiff could genuinely
claim that he [or she] was aware of no defendants, and even more rare that, given
knowledge of at least one, he [or she] could not readily discover the remainder through
the filing of a Doe complaint and the normal discovery processes.” (Bernson, supra,
7 Cal.4th at p. 937.)
4
Section 474 provides in part: “When the plaintiff is ignorant of the name of a
defendant, he must state that fact in the complaint, or the affidavit if the action is
commenced by affidavit, and such defendant may be designated in any pleading or
proceeding by any name, and when his true name is discovered, the pleading or
proceeding must be amended accordingly; . . . .”
5
Section 583.210, subdivision (a) provides: “The summons and complaint shall
be served upon a defendant within three years after the action is commenced against the
defendant. For the purpose of this subdivision, an action is commenced at the time the
complaint is filed.”
11
D. The Parties’ Contentions
On appeal, Chaudhary argues that the motion for judgment on the pleadings
should be denied because (1) he did not discover Chandra’s identity until the February 7,
2012 deposition of her husband, Girdhari, at which time discovery was closed in
Chaudhary v. Stevens, supra, No. 109CV149223, a trial date was pending, and a Doe
amendment would have had “no practical effect on that case”; (2) the complaint’s
allegations, which must be accepted as true, are sufficient to show that Chandra
concealed her identity because it is alleged that Girdhari’s deposition testimony revealed
that the escrow ledger indicating the persons to whom escrow proceeds were paid
contained “secret names”; (3) the statute of limitations was tolled during the period that
he was ignorant of Chandra’s identity; and (4) whether he exercised reasonable diligence
in discovering Chandra’s identity is a question of fact that cannot be resolved at the
pleading stage.
Chandra responds that the doctrine of equitable tolling does not apply in this case
because ignorance of the identity of the defendant does not toll the statute, as stated in
Bernson, supra, 7 Cal.4th at page 932. Chandra also argues that she is not equitably
estopped from asserting a statute of limitations defense because the complaint does not
allege, and there is no indication that it could be alleged, that she prevented Chaudhary
from learning her identity and filing suit within the three-year limitations period.
According to Chandra, since Chaudhary became aware of her identity during discovery in
Chaudhary v. Stevens, supra, No. 109CV149223, he could have amended the complaint
in that action to substitute her for a Doe defendant and the causes of action against her
would have related back to the commencement of that action.
E. Analysis
As we have discussed, the face of the complaint shows that the three-year statute
of limitations provided by section 338, subdivisions (c)(1) and (d) had expired by the
time the complaint naming Chandra as a defendant was filed in December 2012. The
12
complaint’s allegations show that Chaudhary discovered the factual basis for his causes
of action more than three years earlier, when he learned in December 2007 that Girdhari
had conspired with others to secretly sell Chaudhary’s home for $155,000 on the same
day the home was purportedly sold for $99,000. (See Pooshs, supra, 51 Cal.4th at
p. 797.)
Chaudhary’s alleged ignorance of Chandra’s identity as a participant in the
fraudulent home sale scheme until either February 2011 or February 2012 did not toll the
statute of limitations, since failure to discover the identity of the defendant does not toll
or postpone accrual of the cause of action. (Norgart, supra, 21 Cal.4th at p. 399;
Bernson, supra, 7 Cal.4th at p. 932.) However, as we have noted, the California Supreme
Court in Bernson stated that “a defendant may be equitably estopped from asserting the
statute of limitations when, as the result of intentional concealment, the plaintiff is unable
to discover the defendant’s actual identity.” (Bernson, supra, 7 Cal.4th at p. 936.)
Thus, the first issue to be decided in this appeal is whether the allegations of the
complaint are sufficient to show that Chandra should be equitably estopped from
asserting a statute of limitations defense since she actively concealed her identity from
Chaudhary during the limitations period and thereby prevented him from timely filing
suit against her. (See Bernson, supra, 7 Cal.4th at p. 936; Prudential, supra, 51 Cal.3d at
pp. 689-690.)
Having carefully reviewed the complaint, we find no allegations showing that
Chandra actively or fraudulently concealed her identity from Chaudhary. Page four of
the complaint, relied upon by Chaudhary, states only that “he did not learn that [Chandra]
had participated in the fraud until he took [Girdhari’s] deposition in [Chaudhary’s] prior
lawsuit against Old Republic Title Company in the year 2011 (when [Girdhari] answered
questions in connection with an escrow ledger and revealed the secret name of his wife
[Chandra] and other family members). During [Girdhari’s] testimony, he answered
questions in connection with an escrow closing document and made [Chaudhary] aware
13
that [Chandra] had accepted $9,000 from the proceeds of [Chaudhary’s] escrow and had
her family members accept [an] additional $27,000.”
These allegations on page four of the complaint do not indicate that Chandra
participated in the alleged concealment of her name in escrow documents as a recipient of
$9,000 in escrow proceeds. Moreover, these allegations, together with the pleadings in
Chaudhary v. Stevens, supra, No. 109CV149223,6 demonstrate that Chaudhary could
have, but did not, amend the complaint in Chaudhary v. Stevens to substitute Chandra for
a Doe defendant after learning her identity in 2011, well within the three-year period
allowed for a Doe amendment after the original complaint in Chaudhary v. Stevens,
supra, No. 109CV149223 was filed in August 2009. (§ 583.210; see Norgart, supra,
21 Cal.4th at p. 398.)
Accordingly, we determine that Chandra is not barred by the doctrine of equitable
estoppel from asserting a statute of limitations defense, since the face of the complaint
does not show that Chaudhary was unaware of her identity as a wrongdoer due to her
fraudulent concealment during the three-year period allowed under section 583.210 for a
Doe amendment to the original complaint. (See Prudential, supra, 51 Cal.3d at pp. 689-
690.)
We next address the issue of whether the trial court abused its discretion in
denying Chaudhary leave to amend his complaint to cure these defects.
F. Leave to Amend
“When a general demurrer is sustained or a motion for judgment on the pleadings
is granted, the plaintiff must be given leave to amend his or her complaint when there is a
6
“Both trial and appellate courts may properly take judicial notice of a party’s
earlier pleadings and positions as well as established facts from both the same case and
other cases. (Evid. Code, § 452; [§] 430.70; [citations].) The complaint should be read
as containing the judicially noticeable facts . . . . [Citation.]” (Cantu v. Resolution Trust
Corp. (1992) 4 Cal.App.4th 857, 877.)
14
reasonable possibility that the defect can be cured by amendment. [Citations.] ‘The
burden of proving such reasonable possibility is squarely on the plaintiff.’ [Citation.] [¶]
‘To satisfy that burden on appeal, a plaintiff “must show in what manner he [or she] can
amend his [or her] complaint and how that amendment will change the legal effect of his
[or her] pleading.” [Citation.] The assertion of an abstract right to amend does not
satisfy this burden.’ [Citation.]” (Maxton v. Western States Metals (2012)
203 Cal.App.4th 81, 95 (Maxton).) A plaintiff may show for the first time on appeal how
the complaint may be amended to cure the defect. (§ 472c, subd. (a); Las Lomas Land
Co., LLC v. City of Los Angeles (2009) 177 Cal.App.4th 837, 861.)
On appeal, Chaudhary argues that he should be given leave to amend his
complaint to further allege that Chandra actively concealed her identity by using a
“phony name” to accept and cash the escrow proceeds. He also argues that the trial court
abused its discretion by failing to allow him to amend his complaint to correct
typographical errors, including correction of the date of Girdhari’s deposition Chaudhary
v. Stevens, supra, No. 109CV149223 to indicate the correct date is February 7, 2012, not
2011.
According to Chandra, any amendment of the complaint would be futile because
Chaudhary has not shown how the complaint could be amended to cure its defects.
Chandra asserts that Chaudhary has admitted in his pleadings that he discovered her
identity in time to amend the complaint in Chaudhary v. Stevens, supra,
No. 109CV149223 by substituting her for a Doe defendant. We agree.
Even if the complaint was amended to show that Girdhari’s deposition in
Chaudhary v. Stevens, supra, No. 109CV149223 was taken on February 7, 2012, the
proposed amendment would not cure the defects in the complaint. Despite Chandra’s
alleged concealment, Chaudhary admits in the proposed amendment that he discovered
Chandra’s identity as a wrongdoer no later than February 7, 2012. Therefore, Chaudhary
could have filed an amendment substituting Chandra for a Doe defendant in Chaudhary
15
v. Stevens, supra, No. 109CV149223 before the three-year relation-back period allowed
under section 583.210 expired in August 2012 (since the original complaint was filed in
August 2009). (See Norgart, supra, 21 Cal.4th at p. 398.) Because Chaudhary failed to
do so, his action against Chandra is time-barred.
We are not convinced by Chaudhary’s argument that “even if [he] had filed a
[D]oe amendment in the 2009 [a]ction, it would have had no practical effect . . . because
[he] would not have been able to alter the trial date and reopen discovery to keep the case
going against [Chandra].” Chaudhary does not provide any authority for the proposition
that where, as here, a defendant’s identity is discovered during the three-year relation-
back period provided by section 583.210, the plaintiff may elect to disregard the Doe
amendment procedure provided by section 474 and instead file a separate action against
that defendant. To the contrary, section 474 provides that a Doe amendment is
mandatory: “When the plaintiff is ignorant of the name of a defendant, he must state that
fact in the complaint . . . and such defendant may be designated in any pleading or
proceeding by any name, and when his true name is discovered, the pleading or
proceeding must be amended accordingly . . . .” (§ 474, italics and underscoring added;
see Fireman’s Fund Ins. Co. v. Sparks Construction, Inc. (2004) 114 Cal.App.4th 1135,
1144 [requirements of section 474 are mandatory].)
Finally, even if the complaint was amended to allege that Chandra actively
concealed her identity by using a “phony name” to accept and cash the escrow proceeds,
the proposed amendment would not render the action timely or allow the application of
equitable estoppel. Assuming the truth of the proposed allegation that Chandra actively
concealed her identity, that would not change the legal effect of Chaudhary’s other
proposed amendment, in which he asserts that he discovered Chandra’s identity as a
wrongdoer no later than Girdhari’s February 7, 2012 deposition. We therefore determine
that Chaudhary has not met his burden on appeal to show how the proposed amendments
16
to the complaint would change its legal effect by showing that the action against Chandra
was timely filed. (See Maxton, supra, 203 Cal.App.4th at p. 95.)
For these reasons, we conclude that the trial court did not err in granting
Chandra’s motion for judgment on the pleadings on the ground that the action is time-
barred, and we also conclude that the court did not abuse its discretion in denying leave
to amend the complaint. We will therefore affirm the judgment of dismissal.
IV. DISPOSITION
The judgment of dismissal is affirmed. Costs on appeal are awarded to respondent.
17
___________________________________________
BAMATTRE-MANOUKIAN, ACTING P.J.
WE CONCUR:
__________________________
MÁRQUEZ, J.
__________________________
GROVER, J.
| {
"pile_set_name": "FreeLaw"
} |
914 So.2d 106 (2005)
STATE of Louisiana, Appellee
v.
Charlene HENDERSON, Appellant.
No. 40,257-KA.
Court of Appeal of Louisiana, Second Circuit.
October 26, 2005.
*108 William J. Franklin, for Appellant.
Paul J. Carmouche, District Attorney, Catherine M. Estopinal, William J. Edwards, Assistant District Attorneys, for Appellee.
Before WILLIAMS, CARAWAY and LOLLEY, JJ.
WILLIAMS, Judge.
Originally, the defendant, Charlene Henderson, was charged by bill of information with second degree murder, a violation of LSA-R.S. 14:30.1. Pursuant to a plea agreement, the state filed an amended bill of information charging defendant with manslaughter, a violation of LSA-R.S. 14:31, to which defendant pled guilty, and there was no sentence recommendation. The district court imposed a sentence of 16 years at hard labor with credit for time served and denied both a timely motion to reconsider sentence and an untimely pro se motion for reconsideration. Defendant appeals her sentence as excessive, contending the district court failed to consider the sentencing guidelines. We affirm.
DISCUSSION
The record shows that on May 29, 2003, the defendant twice engaged in physical fights with the victim, Velma Sigure. After the first encounter, the defendant went home and changed from a dress to a shirt and pants and concealed a large knife in her clothes. Later during the second fight, the defendant stabbed the unarmed victim once in the chest with the knife. The victim died as a result of the stab wound. Defendant was identified as the assailant and was arrested. Subsequently, defendant pled guilty to manslaughter and the district court ordered a pre-sentence investigation ("PSI"). Defendant was sentenced to serve 16 years at hard labor.
The defendant contends the district court erred in imposing an excessive sentence. Defendant argues that the court should have imposed a less severe sentence after considering the LSA-C.Cr.P. art. 894.1 guidelines.
The test imposed by the reviewing court in determining the excessiveness of a sentence is two-pronged. First, the record must show that the trial court took cognizance of the criteria set forth in LSA-C.Cr.P. art. 894.1. The articulation of the factual basis for a sentence is the goal of Article 894.1, not rigid or mechanical compliance with its provisions. Where the record shows an adequate factual basis for the sentence imposed, remand is unnecessary even without full compliance with Article 894.1. State v. Lanclos, 419 So.2d 475 (La.1982).
The important elements which should be considered are the defendant's personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of the offense *109 and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Bradford, 29,519 (La.App. 2d Cir.4/2/97), 691 So.2d 864. There is no requirement that specific matters be given any particular weight at sentencing. State v. Jones, 33,111 (La.App. 2d Cir.3/1/00), 754 So.2d 392, writ denied, XXXX-XXXX (La.2/2/01), 783 So.2d 385.
Here, the district court expressly stated that it had reviewed the sentencing guidelines of Article 894.1. As mitigating factors, the court noted that the defendant was a first time felony offender and she had genuinely expressed remorse for her crime. However, the court also noted that the defendant was originally charged with second-degree murder and pled to an amended charge of manslaughter. The court pointed out that manslaughter is an enumerated crime of violence and that defendant used a large knife as a dangerous weapon against an unarmed victim. Additionally, the court reviewed the PSI report, which contained information about the important factors of defendant's age, her three children, employment history and the lack of a significant criminal record. However, the court was also aware that defendant had committed the most serious of offenses, the violent taking of another's life. This record demonstrates the district court adequately considered the Article 894.1 criteria.
The second inquiry is whether the sentence imposed is too severe based upon the circumstances of the case and the background of the defendant. A sentence violates La. Const. art. 1, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Hogan, 480 So.2d 288 (La.1985); State v. Bradford, supra. A substantial advantage obtained by means of a plea bargain is a legitimate consideration in sentencing. State v. Ross, 35,552 (La.App. 2d Cir.2/27/02), 811 So.2d 176.
A district court has wide discretion to sentence within the statutory limits. Absent a showing of manifest abuse of that discretion, we will not set aside a sentence as excessive. State v. Square, 433 So.2d 104 (La.1983); State v. Washington, 29,478 (La.App. 2d Cir.4/2/97), 691 So.2d 345. A conviction of manslaughter is punishable by imprisonment at hard labor for not more than 40 years. LSA-R.S. 14:31(B).
Prior to imposing sentence, the court stated that it relied heavily on the PSI report and considered the facts of the case. Defendant has prior misdemeanor convictions of simple battery and disturbing the peace. Although the defendant is a first felony offender, and the court specifically considered the fact that the stabbing occurred during a fight, the court noted that defendant committed a crime of violence with a dangerous weapon by stabbing an unarmed victim to death. Additionally, as a result of the plea agreement, defendant received a substantial reduction in sentencing exposure from life imprisonment at hard labor without benefits to a maximum of 40 years at hard labor. The district court showed considerable leniency in sentencing defendant to serve less than one-half of the statutory maximum term for the offense of conviction.
After reviewing the record, we conclude that the sentence imposed is neither grossly disproportionate to the severity of the offense nor is it shocking to the sense of *110 justice. There is no showing that the district court abused its discretion in sentencing this defendant. Thus, we cannot say the sentence is constitutionally excessive. The assignment of error lacks merit.
We have examined the record for error patent and found none.
The conviction and sentence are affirmed.
AFFIRMED.
| {
"pile_set_name": "FreeLaw"
} |
37 F.3d 1498NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
Larry Dean DUSENBERY, Plaintiff-Appellant,v.John GRAVES; Patrick Walsh; Helen Lukacs, Defendants-Appellees.
No. 94-3054.
United States Court of Appeals, Sixth Circuit.
Oct. 6, 1994.
Before: MILBURN and DAUGHTREY, Circuit Judges, and WEIS, Senior Circuit Judge.*
ORDER
1
Larry Dean Dusenbery appeals the summary judgment for defendants in this civil rights action filed under 42 U.S.C. Sec. 1983 and under the authority enunciated in Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 390-97 (1971). The case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination, this panel unanimously agrees that oral argument is not needed. Fed.R.App.P. 34(a).
2
Plaintiff filed his complaint in the district court alleging, inter alia, that the defendant federal and county officials conspired to refuse him a visit from his mother while he was incarcerated in the Lake County Jail. Initially, the district court granted summary judgment for defendants, and plaintiff appealed the judgment to this court. On appeal, this court vacated the judgment with respect to plaintiff's claim that he was denied visitation from his mother and remanded the case for further proceedings. Dusenbery v. Graves, No. 93-3011, 1993 WL 413467 (6th Cir. Oct. 15, 1993).
3
Following remand, defendants filed a renewed motion for summary judgment, and plaintiff responded in opposition. The district court again granted summary judgment for defendants, and plaintiff filed a timely notice of appeal. Thereafter, the district court certified that an appeal in this case would not be taken in good faith, see 28 U.S.C. Sec. 1915(a), and denied plaintiff leave to appeal in forma pauperis. Likewise, this court denied plaintiff pauper status. Plaintiff has now paid the filing fee.
4
A grant of summary judgment will be reviewed de novo on appeal. Brooks v. American Broadcasting Cos., 932 F.2d 495, 500 (6th Cir.1991). Generally, summary judgment is proper where " '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.' " Canderm Pharmacal, Ltd. v. Elder Pharmaceuticals, Inc., 862 F.2d 597, 601 (6th Cir.1988) (quoting Fed.R.Civ.P. 56(c)). Only factual disputes which may have an effect on the outcome of a lawsuit under substantive law are "material." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). To be "genuine," a dispute must involve evidence upon which a jury could find for the nonmoving party. Id.
5
Upon consideration, the judgment of the district court is affirmed for the reasons stated in its memorandum of opinion filed December 15, 1993. While jail policy arguably provides prisoner's a limited right to visitation from unspecified immediate family members, it is submitted that jail inmates have no liberty interest in visitation from any particular immediate family member because the policy places no substantive limitations on official discretion with "specific substantive predicates" in this respect. See Kentucky Dep't of Corrections v. Thompson, 490 U.S. 454, 463 (1989); Olim v. Wakinekona, 461 U.S. 238, 249 (1983); Inmates of Orient Correctional Inst. v. Ohio State Adult Parole Auth., 929 F.2d 233, 237 (6th Cir.1991). Further, plaintiff's claims on appeal with respect to discovery, appointment of counsel and leave to amend his complaint are unsubstantiated and are without merit.
6
Accordingly, the judgment of the district court is affirmed. Rule 9(b)(3), Rules of the Sixth Circuit.
*
The Honorable Joseph F. Weiss, Jr., Senior Circuit Judge for the United States Court of Appeals for the Third Circuit, sitting by designation
| {
"pile_set_name": "FreeLaw"
} |
869 F.2d 1494
Unpublished DispositionNOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.UNITED STATES of America, Plaintiff-Appellee,v.John A. POPE, Defendant-Appellant.
No. 88-4086.
United States Court of Appeals, Sixth Circuit.
Feb. 3, 1989.
Before KRUPANSKY and BOGGS, Circuit Judges, GEORGE CLIFTON EDWARDS, Jr., Senior Circuit Judge.
ORDER
1
The defendant appeals from the district court's order denying his motion for bail pending trial. The district court has set a trial date of February 7, 1989.
2
A review of the relevant information reveals that the district court did not err in denying defendant's motion for release pending trial. See 18 U.S.C. Sec. 3142(e). Accordingly, the district court's denial of pre-trial bail is affirmed.
| {
"pile_set_name": "FreeLaw"
} |
In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-08-00028-CV
______________________________
THE STATE OF TEXAS FOR THE
BEST INTEREST AND PROTECTION OF C.R.W.
On Appeal from the County Court
Fannin County, Texas
Trial Court No. 2633
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Justice Carter
MEMORANDUM OPINION
C.R.W. appeals the trial court's order authorizing temporary mental health services pursuant
to Tex. Health & Safety Code Ann. § 574.034 (Vernon 2003). (1) On appeal, C.R.W. contends the
evidence is legally and factually insufficient to support the findings required to support the trial
court's order. We agree and will reverse the trial court's order.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. Dr. John Makowski, Staff Psychologist
Dr. Makowski prepared a certificate of medical examination for mental illness in which he
diagnosed C.R.W. as having paranoid schizophrenia after C.R.W. had been in his care for one week.
Further, he stated in the report that C.R.W. is mentally ill and as a result of that illness, is likely to
cause harm to herself or others; or will, if not treated, continue to suffer severe and abnormal mental,
emotional, or physical distress and will continue to experience deterioration of her ability to function
independently and is unable to make a rational and informed decision as to whether or not to submit
to treatment. The basis for these opinions is an alleged statement by C.R.W.'s brother concerning
C.R.W.'s threat to overdose on her medication if she cannot get back at least thirty of her cats that
were taken by law enforcement. He also notes an alleged threat by C.R.W. to shoot her husband, but
does not reveal the source of this information. He further noted some information that C.R.W. is
paranoid and feels her brother is working with the judge to get her house condemned so that the
brother can sell the land. The report contains no other factual information.
B. Dr. Erik Blois, Examining Physician
Dr. Blois completed the second of the required certificates of medical examination for mental
illness in which he diagnosed C.R.W. with depression, not otherwise specified. He, too, stated that
C.R.W. is "mentally ill . . . [and] likely to cause serious harm to . . . herself . . . or . . . others . . . or
will, if not treated, continue to suffer severe and abnormal mental, emotional, or physical distress
and will continue to experience deterioration of [her] ability to function independently and is unable
to make a rational and informed decision as to whether or not to submit to treatment." He went on
to conclude that C.R.W. "presents a substantial risk of serious harm to self or others if not
immediately restrained, which is demonstrated by . . . the person's behavior; or by evidence of severe
emotional distress and deterioration in [her] mental condition to the extent that the person cannot
remain at liberty." He arrived at these conclusions based, in part, on C.R.W.'s brother's alleged
statement that she was going to go into the country and overdose on her medication, and on
information that a police report indicated that C.R.W. had threatened to shoot her husband. Our
record does not contain either the brother's statement or the police report. Dr. Blois also noted that
C.R.W. was under a restraining order based on alleged threats against her husband and commented
on the number of cats and C.R.W.'s poor hygiene. The record also does not contain a copy of the
restraining order to which Dr. Blois referred.
C. C.R.W., Proposed Patient
In the only testimony received at trial, C.R.W. explained some of the medical problems from
which she suffers, one being multiple sclerosis. She also detailed how many of the medications she
has taken for her illnesses that have made her ill and how certain drug regimes for one ailment
interfere with the treatment for the other. She does take one pain medication. She testified that she
regularly visits her gynecologist and her acupuncturist. She testified that the acupuncture has helped
her significantly. She has converted to Buddhism. She also prefers a holistic approach to medicine,
but does still go to her neurologist, gynecologist, and another doctor who practices more
conventional medicine. The record suggests that she began medical treatment for some of her health
conditions beginning in 1983.
She emphasized that she is "terrified" of the medicine that the state hospital wants to give her
and described the hospital as "a very harsh and frightening place." She denied threatening to harm
her husband, but admits that she has threatened to have him arrested for instances of alleged
domestic violence. She also explained that her husband suffers from bipolar disorder and
intermittent rage disorder; he has stopped taking the medication prescribed to him for the mental
conditions because he lost his insurance when he lost his job.
She acknowledged that she and her husband had an argument, but denied threatening him and
further stated that she does not have a gun. She also testified that she was not suicidal, that she was
busy trying to take care of her ailing father, and that she would never hurt anybody. She is greatly
concerned about keeping her promise to her father to take care of him. She also expressed concern
for her husband's well-being if she were to be committed to the state hospital. She suspects that her
brother has had some involvement in getting her to this point in the involuntary commitment
proceedings in an attempt to maintain control over their father's affairs.
The State cross-examined C.R.W. about the unusually high number of cats she and her
husband had at their home; the State estimated the number at 200, including many who were living
in the couple's attic. C.R.W. explained that they feed the cats and are trying to find homes for them.
C.R.W. admitted that the house was a mess, due to the cats. She expressed her dissatisfaction for
the condition of the house, but attempted to explain that the task of keeping everything clean was
too great for her to do without her husband's help. She complained that he was unwilling to help.
She was saddened when law enforcement took some of the cats. She also has three dogs. Raccoons
live in the attic as well, after gaining entry through a broken window in the attic.
C.R.W. described the development of her health problems, the treatment she has received
over the years, and how, at times, the couple was uninsured, preventing her from seeking additional
medical treatment. The State also questioned C.R.W. on her spiritual relationship with her
acupuncturist. C.R.W. responded that her acupuncturist served as her spiritual advisor. She
explained that she has always maintained a love for animals and people and that she does not want
to harm anything. She again denied ever threatening to harm her husband or herself and assumes
that her brother told the doctors that she had done so. She further described her relationship with
her brother, whose motives she questions, but against whom she holds "no ill will."
D. Trial Court's Findings
The trial court found that C.R.W. did pose a risk of harm to herself and that, if untreated, she
would continue to suffer and deteriorate. It expressly declined to find that C.R.W. was likely to
cause harm to others. With that, we need not examine what little record there is here for evidence
relating to C.R.W.'s alleged threats against her husband.
II. APPLICABLE LAW
Orders for temporary mental health services are governed by the following provision:
(a) The judge may order a proposed patient to receive court-ordered
temporary inpatient mental health services only if the judge or jury finds, from clear
and convincing evidence, that:
(1) the proposed patient is mentally ill;
(2) as a result of that mental illness the proposed patient:
(A) is likely to cause serious harm to himself;
(B) is likely to cause serious harm to others; or
(C) is:
(i) suffering severe and abnormal mental,
emotional, or physical distress;
(ii) experiencing substantial mental or physical
deterioration of the proposed patient's ability to function
independently, which is exhibited by the proposed patient's
inability, except for reasons of indigence, to provide for the
proposed patient's basic needs, including food, clothing,
health, or safety; and
(iii) unable to make a rational and informed
decision as to whether or not to submit to treatment.
Tex. Health & Safety Code Ann. § 574.034. If the judge or jury finds that the proposed patient
meets the prescribed commitment criteria, the judge or jury must specify which criterion forms the
basis of the decision. Tex. Health & Safety Code Ann. § 574.034(c).
Clear and convincing evidence is that measure or degree of proof that will produce in the
mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be
established. Tex. Civ. Prac. & Rem. Code Ann. § 41.001(2) (Vernon Supp. 2007); State v.
Addington, 588 S.W.2d 569, 570 (Tex. 1979). To be clear and convincing under Section 574.034(a),
the evidence must, unless waived, (2) include expert testimony and evidence of a recent overt act or a
continuing pattern of behavior that tends to confirm (1) the likelihood of serious harm to the
proposed patient or others or (2) the proposed patient's distress and the deterioration of the proposed
patient's ability to function. Tex. Health & Safety Code Ann. § 574.034(d). The overt act or
continuing pattern of behavior "must relate to the criterion on which the judgment is based." See In
re F.M., 183 S.W.3d 489, 492 (Tex. App.--Houston [14th Dist.] 2005, no pet.); J.M. v. State, 178
S.W.3d 185, 193 (Tex. App.--Houston [1st Dist.] 2005, no pet.).
We pause to point out that there was no testimony taken from either of the above-referenced
physicians. C.R.W. waived her right to cross-examine the doctors, and the parties agreed that expert
testimony would be taken in the form of reports and written statements. Consequently, the only form
of expert testimony the trial court had before it was the two doctors' completed certificates of
medical examination for mental illness. The only testimony at the hearing on the State's application
was C.R.W.'s own testimony. If the proposed patient waives her right of cross-examination, the trial
court may admit as evidence the certificates of medical examination for mental illness, and the
certificates admitted under this subsection constitute competent medical or psychiatric testimony on
which a court's findings may be based alone. Tex. Health & Safety Code Ann. § 574.034(f); In
re E.T., 137 S.W.3d 698, 700 (Tex. App.--San Antonio 2004, no pet.). In other words, the doctors'
certificates alone could constitute sufficient evidence to support the trial court's findings. Here,
however, they do not.
III. LEGAL SUFFICIENCY OF THE EVIDENCE TO SUPPORT ORDER FOR
TEMPORARY MENTAL HEALTH SERVICES
C.R.W. challenges the legal sufficiency of the evidence that supports the trial court's order
authorizing temporary mental health services. The order for temporary mental health services states
the trial court found, by clear and convincing evidence, C.R.W. is mentally ill and, as a result of that
mental illness, is likely to cause serious harm to herself, and is suffering severe and abnormal mental,
emotional, or physical distress; experiencing substantial mental or physical deterioration of the
proposed patient's ability to function independently which is exhibited by the proposed patient's
inability, except for reasons of indigence, to provide for the proposed patient's basic needs, including
food, clothing, health, or safety; and is unable to make a rational and informed decision as to whether
or not to submit to treatment.
A. Standards of Review
Because the State's burden of proof is clear and convincing evidence, we apply a heightened
standard of review. See In re C.H., 89 S.W.3d 17, 25 (Tex. 2002); In re M.M., 184 S.W.3d 416,
417-18 (Tex. App.--Dallas 2006, no pet.). In reviewing the legal sufficiency of the evidence where
the burden of proof is clear and convincing evidence, we consider all of the evidence in the light
most favorable to the finding to determine whether a reasonable trier of fact could have formed a
firm belief or conviction that its findings were true. In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002).
We must assume that the trier of fact resolved disputed facts in favor of its finding if a reasonable
trier of fact could do so, and we must disregard all contrary evidence that a reasonable trier of fact
could have disbelieved or found to be incredible. Id.
In reviewing factual sufficiency challenges, we review all the evidence in the record, both
supporting and opposing the trial court's findings. C.H., 89 S.W.3d at 27-29. We must give due
consideration to evidence the trier of fact could reasonably have found to be clear and convincing.
Id. at 25. Under the clear-and-convincing standard, we determine whether the evidence is such that
the trier of fact could reasonably form "a firm belief or conviction" as to the truth of the allegations
sought to be established by the State. Id. We must consider whether disputed evidence is such that
a reasonable trier of fact could not have reconciled that disputed evidence in favor of its finding.
J.F.C., 96 S.W.3d at 266.
B. Evidence of Mental Illness
First, C.R.W. contends that the evidence is insufficient to support the trial court's finding that
she is mentally ill. "Mental illness" is defined as "an illness, disease, or condition, other than
epilepsy, senility, alcoholism, or mental deficiency, that: (A) substantially impairs a person's
thought, perception of reality, emotional process, or judgment; or (B) grossly impairs behavior as
demonstrated by recent disturbed behavior." Tex. Health & Safety Code Ann. § 571.003(14)
(Vernon Supp. 2007).
Here, we have only the doctor's certificates of examination as a source of expert testimony
on mental illness. While Dr. Makowski diagnosed C.R.W. with paranoid schizophrenia, Dr. Blois
diagnosed her with depression not otherwise specified. Neither certificate clearly explains the basis
for the respective diagnosis. Neither certificate describes how this condition has substantially
impaired C.R.W.'s thought, perception, emotional process, or judgment or has grossly impaired her
behavior. Reading the certificates generously, we can find indirect links between some description
of the behaviors on which the doctors arrived at his diagnosis. Dr. Makowski's certificate roughly
links the diagnosis of paranoid schizophrenia to some report, of unknown origin, he was given that
C.R.W. believed her brother and the trial judge were conspiring to get her house condemned so that
the land could be sold. The certificate does not, however, go beyond that to explain how this
behavior fits within the definition of mental illness. Dr. Blois' certificate also fails to provide any
direct link between factual observations and his diagnosis of depression. It could be read from his
certificate that his diagnosis was based on C.R.W.'s reaction to the seizure of some of the several cats
at her house.
In In re J.S.C., the testifying doctor explained the basis for his diagnosis of "schizophrenia,
undifferentiated type, chronic, and acute exacerbation":
When [J.S.C.] was at the MHMR Clinic, they found he was also catatonic. He was
hallucinating. He was delusional and withdrawn. He was helpless. He was not able
to care for himself, and he can not remember. He was admitted to SASH here; and
when I saw him on the first visit, he was confused. His speech was fifty percent
irrelevant. He was disoriented. He was totally out of it.
812 S.W.2d 92, 94 (Tex. App.--San Antonio 1991, no writ). The San Antonio court held this
evidence sufficient to support the finding that J.S.C. was mentally ill. Id. On the other hand,
certificates based on mere conclusions, such as that the proposed patient has ''schizo affective
disorder,'' without the factual observations that form the basis for that opinion, are insufficient. See
In re State for Mayberry, 685 S.W.2d 121, 123 (Tex. App.--Amarillo 1985, no writ) (concluding
certificates which constituted the only evidence supporting treatment did "not contain any descriptive
factual observations of the doctors that would form a detailed basis for the conclusions and opinions
of the doctors"). An expert diagnosis of mental illness alone is not sufficient to confine a patient for
compulsory treatment. See Mezick v. State, 920 S.W.2d 427, 430 (Tex. App.--Houston [1st Dist.]
1996, no writ). Expert opinions and recommendations must be supported by a showing of the factual
bases on which they are grounded. Id.; T.G. v. State, 7 S.W.3d 248, 252 (Tex. App.--Dallas 1999,
no pet.); Lodge v. State, 597 S.W.2d 773, 779 (Tex. Civ. App.--San Antonio), aff'd, 608 S.W.2d 910
(Tex. 1980).
Here, the record provides no information of personal factual observations of the doctors
which lead them to diagnose C.R.W. as mentally ill. We cannot conclude the evidence presented
here was sufficiently clear and convincing to form a firm conviction or belief that C.R.W. was
mentally ill. The closest link we have to a factual observation to support a diagnosis is
Dr. Makowski's description of a report of C.R.W.'s suspicions of her brother. We think this
insufficient to meet the heightened evidentiary standard here. Nonetheless, even if there were
sufficient evidence of mental illness, the State's evidence of the other required elements fails on this
record. C.R.W. correctly directs us to authority that, even if the evidence of mental illness is
sufficient, such evidence alone is insufficient to satisfy the statutory elements of Section 574.034.
See In re L.H., 183 S.W.3d 905, 911 (Tex. App.--Texarkana 2006, no pet.); K.T. v. State, 68 S.W.3d
887, 893 (Tex. App.--Houston [1st Dist.] 2002, no pet.). Since evidence of mental illness alone is
insufficient to justify involuntary commitment, we look to evidence that supports the other
challenged elements of Section 574.034. Specifically, C.R.W. contends the evidence is insufficient
to show an overt act or continuing pattern of behavior that would support a finding that C.R.W.
poses a risk of harm to herself under Section 574.034(a)(2)(A) and the multi-faceted finding under
Section 574.034(a)(2)(C). We will address those findings in turn.
C. Evidence of a Recent Overt Act or Continuing Pattern of Posing a Risk of Harm
to Self
Again, to be clear and convincing under Section 574.034(a), the evidence must include expert
testimony and evidence of a recent overt act or a continuing pattern of behavior that tends to confirm
(1) the likelihood of serious harm to the proposed patient or others or (2) the proposed patient's
distress and the deterioration of the proposed patient's ability to function. Tex. Health & Safety
Code Ann. § 574.034(d). The overt act or continuing pattern of behavior "must relate to the
criterion on which the judgment is based." See F.M., 183 S.W.3d at 492; J.M., 178 S.W.3d at 193.
The Houston-First Court reviewed the evidence to support a finding that a proposed patient
was likely to harm herself in J.M. 178 S.W.3d at 193. Evidence that J.M. threatened to harm
herself, standing alone, was insufficient to support a finding under Section 574.034(a)(2)(A). Id.
The court pointed out that no specific details were provided about the purported threats of suicide
made by J.M. before her commitment. Id. For instance, the record did not reveal exactly when J.M.
allegedly made the threats, specifically to whom she made those threats, or under what circumstances
she may have made the threats. Id. Importantly, no evidence was presented that J.M. engaged in any
recent overt act to actually harm herself at the time she made the threats or during her hospitalization.
Id. at 193-94. We see in J.M. that a threat of harm to the patient must be substantial and based on
actual dangerous behavior manifested by some overt act or threats in the recent past. (3) See id.; In re
K.D.C., 78 S.W.3d 543, 547 (Tex. App.--Amarillo 2002, no pet.).
We now turn to the doctors' certificates in the instant case to look for evidence of a recent
overt act or a continuing pattern of behavior that confirms that C.R.W. is likely to harm herself. We
find none. Dr. Makowski's certificate states "she told her brother that if she could not get back at
least 30 of her 200+ cats that she would go into the country and overdose on medication." The
doctor did not purport to have personal knowledge of this statement, it does not appear anywhere in
the record, and her brother did not testify at trial. At trial, the only evidence concerning such a
statement was C.R.W.'s denial of it. While the doctor might rely on the report of the brother's
statement in forming an opinion, if the statement proves to be inaccurate, the basis for the opinion
is obliterated. One purpose of the hearing before an impartial judge or jury is to establish the factual
basis for the commitment. Here, the record is totally void of any evidence from a witness with
personal knowledge that C.R.W. made such a statement. Even taken as true, we do not know the
context in which it was said and note that this was simply a statement and that there is nothing in the
record that would suggest it was anything other than an isolated statement, not a continuing pattern
of behavior. The record shows no evidence that C.R.W. made any recent overt act to actually harm
herself even if she did make the statement. This evidence, while the closest we find to be sufficient,
fails to reach the heightened standard of review here.
Similarly, Dr. Blois noted this alleged threat to overdose on her medication. Again, though,
with no evidence that C.R.W. took any action in furtherance of this threat, no evidence as to the
context or tone of the statement, and no evidence that she engaged in a continuing pattern of
behavior that would confirm that C.R.W. is, indeed, at risk of harming herself, we cannot say that
this evidence is clear and convincing. We conclude that the evidence is legally insufficient to
support the trial court's finding that C.R.W. is likely, as a result of her mental illness, to harm herself.
D. Evidence of a Recent Overt Act or a Continuing Pattern of Distress and
Deterioration
Next, we examine the record for evidence of a recent overt act or a continuing pattern of
behavior that confirms the multifaceted finding under Section 574.034(a)(2)(C). We must find
sufficient evidence of the following three elements: 1) the patient is suffering severe and abnormal
mental, emotional, or physical distress, 2) the patient is experiencing substantial mental or physical
deterioration of the proposed patient's ability to function independently, which is exhibited by the
proposed patient's inability, except for reasons of indigence, to provide for the proposed patient's
basic needs, including food, clothing, health, or safety; and 3) the patient is unable to make a rational
and informed decision as to whether or not to submit to treatment. Tex. Health & Safety Code
Ann. § 574.034(a)(2)(C).
The doctors' certificates, again the only expert testimony for our review, provide no evidence
concerning a recent overt act or continuing pattern of behavior that would serve to confirm that
C.R.W. was, at the time she was committed to the state hospital, suffering severe and abnormal
mental, emotional, or physical distress. We learn from C.R.W. herself that she does suffer from
some physical ailments and does seek regular treatment, when she is covered by health insurance,
for those ailments. The record suggests she has done so for years.
For the evidence to be legally sufficient to support the trial court's findings, the record would
also have to show that, when C.R.W. was committed, she was experiencing substantial mental or
physical deterioration of her ability to function independently, which was exhibited by her inability,
except for reasons of indigence, to provide for her basic needs, including food, clothing, health, or
safety. See Tex. Health & Safety Code Ann. § 574.034(a)(2)(C). Dr. Blois' certificate does
touch on C.R.W.'s poor hygiene and the fact that she was living in a house with over 200 cats. This
might serve as some evidence of a continuing pattern of behavior--collecting cats--that confirms
deterioration of her ability to function independently. C.R.W. admitted that she could not keep the
house clean under those circumstances without help from her husband. The inability to maintain a
somewhat sanitary home could, arguably, call into issue C.R.W.'s ability to provide for her own
health and safety.
We share the Houston-First Court's reluctance to conclude that such evidence, without more,
demonstrates a continuing pattern of behavior that would confirm mental or physical deterioration:
[E]vidence of the effects of mental illness does not necessarily establish evidence of
substantial mental or physical deterioration unless the effects impair a person's ability
to function independently to provide for basic needs. For example, poor grooming
is insufficient "to justify depriving an individual of her liberty." J.M., 178 S.W.3d
at 195. Poor hygiene and "oppositional behavior" also demonstrate mental illness,
but alone do not rise to the level of an overt act or pattern of behavior that confirms
a substantial deterioration of a person's ability to function independently to provide
for her basic needs. Id. Evidence of poor insight and judgment, lack of trust towards
others, insomnia, and diminished weight are likewise serious health problems, but
they must be coupled with evidence that Armstrong is suffering substantial
deterioration of her ability to provide for her basic needs. See id. Although the
evidence shows that Armstrong is mentally ill, has physical health problems, and has
been previously hospitalized for the mental illness, the State offered no testimony
that, as a result of her mental condition, she is unable to function independently as
exhibited by her inability to provide for her basic needs.
Armstrong v. State, 190 S.W.3d 246, 252 (Tex. App.--Houston [1st Dist.] 2006, no pet.).
Here, Dr. Blois does not provide details into the condition of the house or about C.R.W.'s
hygiene. We do later learn a little bit more from C.R.W. herself. She explained that she was unable
to properly care for herself at the time, that she was "a mess and stinky right now" because she was
rushed into state custody and was not able to take any of her "stuff," presumably grooming products.
She also expressed dissatisfaction for the condition of the house; she told her husband that she did
not want to live in such conditions. Although not expert testimony, as required, C.R.W.'s testimony
gives us a bit more insight into the situation. Further, we note that, by the time the hearing took
place, the record demonstrates that law enforcement seized many of the cats from the home. While
there is some evidence of this second element under Section 574.034(a)(2)(C), it falls short of
sufficiently clear and convincing. A reasonable trier of fact could not have formed a firm conviction
or belief as to the truth of these findings based on this evidence.
Finally, we find no evidence that C.R.W. is unable to make a rational and informed decision
as to whether or not to submit to treatment. To the contrary, the record shows that C.R.W. has
sought regular treatment for her several health problems and has learned that she is sensitive to
several medications. She explains that she is able to take one certain pain medication, but most
others make her ill. She has explored holistic medicine and acupuncture. She pursues these avenues
in conjunction with her "regular" doctors for her physical and mental health. Evidence of a decision
to pursue treatment other than or in conjunction with conventional medicine does not satisfy this
element. The record is void of evidence that C.R.W. is unable to make a rational and informed
decision as to whether to submit to treatment.
IV. CONCLUSION
We reverse the trial court's order and render judgment denying the State's application for
mental health services. Having rendered such judgment, we accordingly order C.R.W.'s immediate
release from the institution to which she has been committed. See Tex. Health & Safety Code
Ann. § 574.033(b) (Vernon 2003); see also Tex. R. App. P. 43.2(c). Our mandate will issue
immediately upon motion, should appropriate action not be taken in accordance with this opinion.
Jack Carter
Justice
Date Submitted: April 24, 2008
Date Decided: April 25, 2008
1. In companion case, cause number 06-08-00029-CV, C.R.W. appeals from the related order
authorizing administration of psychoactive medication. See Tex. Health & Safety Code Ann.
§§ 574.104, 574.106 (Vernon Supp. 2007).
2. We note that the waiver of the right to confront the State's witnesses does not touch on any
issue concerning C.R.W.'s waiver of the requirement that the State present any expert testimony as
to a recent overt act or a continuing pattern of behavior that would confirm either of the relevant
findings under Section 574.034(a)(2).
3. We examined a doctor's notation of a patient's statements about death:
In Dr. Fagan's certificate, he referred to the family's report that R.G. had been "stating
he wants to die." This phrase is the only reference to such statements. Dr.
Chadalavada did not testify to any such statements by R.G. From this short, general
reference in Dr. Fagan's certificate, we cannot determine the context in which R.G.
may have made statements to this effect. And, certainly, there is no evidence R.G.
attempted suicide or purposely harmed himself. So, we cannot conclude that Dr.
Fagan's five-word notation in his certificate constitutes evidence of a recent overt act
or continuing pattern of behavior that tends to confirm the likelihood of serious harm
to R.G. or a substantial deterioration of R.G.'s ability to function independently.
In re R.G., No. 06-05-00147-CV, 2006 Tex App. LEXIS 851, at *9-10 (Tex. App.--Texarkana
Feb. 2, 2006, no pet.) (mem. op.).
| {
"pile_set_name": "FreeLaw"
} |
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
PEGGY S. MCCREREY,
Plaintiff-Appellant,
v.
RAY ALLEN, JR.; JACK KOTVAS, in his
individual capacity,
Defendants-Appellees, No. 96-1880
and
COMMONWEALTH OF VIRGINIA,
Department of Professional and
Occupational Regulation,
Defendant.
Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
Robert E. Payne, District Judge.
(CA-95-497-3)
Argued: March 6, 1997
Decided: July 8, 1997
Before RUSSELL, HALL, and NIEMEYER,
Circuit Judges.
_________________________________________________________________
Affirmed by published opinion. Judge Hall wrote the opinion, in
which Judge Russell and Judge Niemeyer joined.
_________________________________________________________________
COUNSEL
ARGUED: Rodney Alan Smolla, Marshall-Wythe School of Law,
COLLEGE OF WILLIAM & MARY, Williamsburg, Virginia, for
Appellant. Guy Winston Horsley, Jr., Senior Assistant Attorney Gen-
eral, OFFICE OF THE ATTORNEY GENERAL, Richmond, Vir-
ginia, for Appellees. ON BRIEF: Gerald T. Zerkin, Melanie A.
Hopper, Barbara J. Hughes, GERALD T. ZERKIN & ASSOCIATES,
Richmond, Virginia, for Appellant. James S. Gilmore, III, Attorney
General of Virginia, Catherine C. Hammond, Deputy Attorney Gen-
eral, Neil A.G. McPhie, Senior Assistant Attorney General, OFFICE
OF THE ATTORNEY GENERAL, Richmond, Virginia, for Appel-
lees.
_________________________________________________________________
OPINION
HALL, Circuit Judge:
In this civil rights action against her former supervisor and the
per-
son hired to fill her position at a state agency, Peggy S. McCrerey
claimed that the decisions to fire and replace her were politically
motivated and that her First Amendment rights were thereby
violated.
The district court granted summary judgment to the defendants, and
we now affirm.
The Virginia Department of Professional and Occupational Regula-
tion (DPOR) oversees eighteen regulatory boards, the members of
which are appointed by the governor. DPOR sets regulatory policy,
administers regulations, provides staff support for the various
boards,
and serves as a liaison between the boards and the governor.
McCrerey had been DPOR's Administrator for Regulatory Programs
for two and a half years when she was fired in July 1994 by Ray
Allen, who had recently been appointed director of DPOR. A new
position of Chief Deputy Director was then created and posted, but
McCrerey was not one of the two people interviewed for the
position.
Instead, the job went to Jack Kotvas, who had been active in the
cam-
paign of the then recently elected Republican governor. McCrerey is
not active in any political party.
McCrerey sued, claiming that her termination and Kotvas's hiring
were politically motivated. In ruling on the defendants' motion for
summary judgment, the district court assumed the claimed political
2
motive behind both of the job decisions. However, the court also
found that political affiliation was an "appropriate requirement"
for
the jobs in question and, therefore, that the patronage employment
decisions at issue were not unlawful under the Elrod-Branti
doctrine.1
McCrerey v. Allen, 925 F.Supp. 1123 (E.D. Va. 1996). McCrerey
appealed.2
Notwithstanding Allen's and Kotvas's arguments, both below and
on appeal, that the disputed personnel decisions were based on
merit,
we agree with the district court that it must be assumed for
summary
judgment purposes that McCrerey's lack of Republican Party affilia-
tion was a significant factor in both employment decisions. See id.
at
1135-36. In accordance with Branti, 445 U.S. at 518, the district
court
shifted its focus to whether the State had met its burden of demon-
strating that political affiliation was an "appropriate requirement
for
the effective performance" of the positions at issue and decided
that
the burden had been met. 925 F.Supp. at 1136.
Except for some isolated statements in the "Statement of Facts"
section of her opening brief, McCrerey has made no effort to
explain
why political affiliation might not be an "appropriate requirement"
for
either position, and she does not argue on appeal that the district
court
erred in finding that the two positions in question"involve[d]
issues
on which there is room for political disagreement on goals and
their
implementation." Id. Her only argument is that the State cannot on
the
one hand declare through its legislature that political
considerations
should not enter into personnel decisions about a given job, and
then,
on the other hand, violate that same law and be heard to argue
that,
as a matter of fact, political affiliation is indeed an
"appropriate
requirement" for that same job.
The district court considered the state law --"Although neither
state policy nor state law defining a position as requiring--or not
_________________________________________________________________
1 Elrod v. Burns, 427 U.S. 347 (1976); Branti v. Finkel, 445 U.S.
507
(1980).
2 The district court alternatively ruled that Allen and Kotvas were
enti-
tled to qualified immunity. In light of our decision to affirm on
the
Elrod-Branti basis of the district court's decision, we do not
reach immu-
nity issue.
3
requiring--partisan political affiliation controls the Elrod-Branti
anal-
ysis, it is a factor to consider in assessing whether a position is
within
the protective ambit of the doctrine" (925 F.Supp. at 1137
(citations
omitted)) -- but ruled that "the factors which the federal
constitu-
tional analysis must take into account override the countervailing
influence of the state law and policy statements on which McCrerey
relies." Id. at 1139. However, McCrerey wants more than deference
or a presumption accorded the state anti-patronage law; she
contends
that the agency's violation of state law in her case effectively
pre-
cludes a judgment in the State's favor.
McCrerey explains that she does not mean to assert that "state law
is legally determinative, but that where state law unambiguously
renounces any relevant state interest, it leaves the State with an
insur-
mountable evidentiary hurdle." Appellant's brief at 24 n.5
(emphasis
in original). This evidentiary slant was apparently not articulated
as
such below, although the district court culled an analogous
contention
from McCrerey's opposition to the summary judgment motion: "Al-
though not articulated in this form, the result sought by McCrerey
perhaps is that the defendants are estopped from claiming the
protec-
tion of the Elrod-Branti doctrine because of the provision of state
law
and the policies cited earlier . . . ." 925 F.Supp. at 1138 n. 8.
However
the argument is characterized, its core is the same-- when the
State
has specifically determined that political affiliation may not be
con-
sidered with regard to a given job or class of jobs, then state law
does
indeed effectively control the First Amendment issue.3 We agree
with
the district court that state law cannot control the analysis
because
"the content and scope of federal constitutional rights are matters
of
federal constitutional law." Id. at n. 7.
_________________________________________________________________
3 "In making a patronage-based decision against McCrerey in open
vio-
lation of Virginia law, the Defendant/Appellees forfeited whatever
claim
to the Elrod-Branti exception they might otherwise have made"
(appel-
lant's brief at 20); "[The State] is foreclosed by its own binding
state pol-
icies from meeting its evidentiary burden of demonstrating a
compelling,
countervailing state interest to offset McCrerey's First Amendment
right" (appellant's brief at 22) (emphasis in original); "The State
simply
can not meet its burden to establish an interest that outweighs
McCrerey's First Amendment rights when state law specifically
renounces any such interest" (appellant's brief at 24).
4
The role of state law in the Elrod-Branti analysis has not been
explained with a great degree of precision. Compare Stott v.
Haworth,
916 F.2d 134, 142 (4th Cir. 1990) (noting that a state law making
cer-
tain positions exempt from civil service protection"create[d] a
pre-
sumption at law that discharge or demotion was proper" (citing
Savage v. Gorski, 850 F.2d 64, 69 (2d Cir. 1988)), with Akers v.
Caperton, 998 F.2d 220, 225 n.7 (4th Cir. 1993) (noting, in a case
involving a state statute that specifically provided that political
affilia-
tion was an important requirement for the position of highway
super-
intendent, that "legislative findings are given deference"). State
lawmakers, who are quite capable of enacting patronage-influenced
employment statutes, cannot supplant the Elrod-Branti doctrine. We
find no basis for establishing a per se or"absolute deference" rule
when the disputed employment decision conflicts with the state's
leg-
islative determination. See Rouse v. Nielson, 851 F.Supp. 717,
723-24
(D.S.C. 1994) (rejecting argument that anti-patronage statute be
given
"absolute deference").
The district court correctly noted, and we now emphasize, that
whether a patronage-based dismissal violates the First Amendment is
ultimately a question of federal law. We reject McCrerey's
invitation
to establish a different rule where anti-patronage statutes are
involved.
AFFIRMED
5
| {
"pile_set_name": "FreeLaw"
} |
Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-20-00022-CR
IN RE John KYLE
Original Mandamus Proceeding 1
PER CURIAM
Sitting: Rebeca C. Martinez, Justice
Luz Elena D. Chapa, Justice
Beth Watkins, Justice
Delivered and Filed: January 29, 2020
PETITION FOR WRIT OF MANDAMUS DENIED
On January 14, 2020, relator filed a petition for writ of mandamus. After considering the
petition and the record, this court concludes relator is not entitled to the relief sought. Accordingly,
the petition for writ of mandamus is denied. See TEX. R. APP. P. 52.8(a).
PER CURIAM
Do not publish
1
This proceeding arises out of Cause No. 2005CR3212, styled The State of Texas v. John Kyle, pending in the 399th
Judicial District Court, Bexar County, Texas, the Honorable Mary Roman presiding.
| {
"pile_set_name": "FreeLaw"
} |
925 F.2d 1479
Unpublished DispositionNOTICE: Federal Circuit Local Rule 47.8(b) states that opinions and orders which are designated as not citable as precedent shall not be employed or cited as precedent. This does not preclude assertion of issues of claim preclusion, issue preclusion, judicial estoppel, law of the case or the like based on a decision of the Court rendered in a nonprecedential opinion or order.Rosalinda S. SALARZON, Petitioner,v.OFFICE OF PERSONNEL MANAGEMENT, Respondent.
No. 90-3411.
United States Court of Appeals, Federal Circuit.
Jan. 18, 1991.
Before RICH, Circuit Judge, FRIEDMAN, Senior Circuit Judge, and RADER, Circuit Judge.
DECISION
PER CURIAM.
1
Petitioner appeals from the April 13, 1990 decision of the Merit Systems Protection Board (Board), Docket No. SE08318910606, which reversed the October 20, 1989 Initial Decision of the Administrative Judge (AJ). We affirm.
OPINION
2
Petitioner, an unmarried adult child of a deceased former Federal employee who retired under the Civil Service Retirement Act, seeks survivor annuity benefits pursuant to 5 USC 8341(a)(4)(B), (e)(2). To qualify for these benefits, petitioner must be "incapable of self-support because of mental or physical disability incurred before age 18...." Id. at (a)(4)(B).
3
In her Initial Decision, the AJ reversed respondent's denial of benefits. Although the AJ found that petitioner's physical disability did not prevent her from performing non-strenuous work, i.e., work requiring clerical or telephone skills, she concluded that petitioner qualified for benefits under 5 USC 8341(a)(4)(B). The AJ found credible petitioner's testimony that she was unable to obtain any employment within her physical capability, and that she could not use the available public transportation in the Philippines--jeepneys and buses--to get to work. The AJ surmised that petitioner lacked the financial means to use cars or taxicabs on a regular basis. For these reasons, the AJ concluded, petitioner is "essentially unemployable within her commuting area in the Philippines."
4
Granting respondent's petition for review of the Initial Decision, the Board reversed the AJ. Petitioner's "limited mobility does not establish that she is incapable of self-support," the Board explained. Additionally, the Board found no basis in the record to support the AJ's conclusion that petitioner's financial condition precluded her from using cars or taxicabs to get to work.
5
Although we sympathize with petitioner's plight, our standard of review is limited in scope. We may not overturn the Board's decision unless it was arbitrary, capricious, contrary to the law, an abuse of discretion, or unsupported by substantial evidence. 5 USC 7703(c). The decision turned on the Board's interpretation of the phrase "incapable of self-support." An agency's interpretation of the statute it is charged with administering is entitled to deference. Davis v. Office of Personnel Management, 918 F.2d 944, 946 (Fed.Cir.1990). In view of the unchallenged factual finding that petitioner is physically capable of performing non-strenuous work, we cannot say that the Board's determination that petitioner was not "incapable of self-support" was erroneous or unreasonable. We accordingly affirm.
| {
"pile_set_name": "FreeLaw"
} |
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 10, 2007
No. 06-31205 Charles R. Fulbruge III
Clerk
KELLY ZEIGLER
Plaintiff - Appellant
v.
BP AMERICA PRODUCTION COMPANY
Defendant - Appellee
Appeal from the United States District Court
for the Eastern District of Louisiana
2:05-CV-4138
Before JOLLY, DAVIS, and WIENER, Circuit Judges.
PER CURIAM:*
AFFIRMED. See 5TH CIR. R. 47.6.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
| {
"pile_set_name": "FreeLaw"
} |
520 F.Supp. 173 (1981)
Berney L. STRAUSS, Plaintiff,
v.
ALABAMA STATE BAR; Edward P. Turner, Jr.; P. Richard Hartley; Harry W. Gamble, Jr.; Charles R. Adair; Walter P. Crownover; H. Wayne Love; William D. Scruggs, Jr.; Warren B. Lightfoot; A. Stewart O'Bannon, Jr.; Joe C. Cassady; Ben H. Harris, Jr.; Joel P. Robinson, Jr.; Albert W. Copeland; Ludger D. Martin; Richard S. Manley; Jere C. Segrest; Broox G. Garrett; W. O. Kirk, Jr.; Nelson Vinson; Bob Faulk; Louis B. Lusk; J. Don Foster; T. Reuben Bell; John David Knight; Edwin C. Page, Jr.; Robert M. Harper; John F. Proctor; William Bruce Sherrill; Harold Albritton; Oliver P. Head; J. Gorman Houston, Jr.; Gary C. Huckaby; Gorman R. Jones, Jr.; William B. Matthews; A. Philip Reich, III; Charles E. Robinson; Robert Straub; H. Neil Taylor, Sr.; and Ted Taylor, in their official capacity as members of the Board of Commissioners of the Alabama State Bar; E. T. Brown, Jr., President of the Alabama State Bar; Harold V. Hughston, President-Elect of the Alabama State Bar; Jon H. Moores, Vice-President of the Alabama State Bar; and Reginald T. Hamner, Secretary of the Alabama State Bar, Defendants.
Civ. A. No. CV 81-G-1041-S.
United States District Court, N. D. Alabama, S. D.
August 17, 1981.
*174 Gould H. K. Blair, Birmingham, Ala., for plaintiff.
William H. Morrow, Jr., Montgomery, Ala., for defendants.
MEMORANDUM OPINION
GUIN, District Judge.
This cause came before the court upon the verified complaint filed by the plaintiff in which he sought a preliminary injunction requiring the Alabama State Bar Association to allow him to take the July 1981 bar examination. He further requested a declaration that the residence requirement for taking the bar examination is unconstitutional, and a permanent injunction preventing the defendants from enforcing that provision. By order of this court entered July 16, 1981, a preliminary injunction issued, ordering the Alabama State Bar to allow the plaintiff to take the July 1981 examination.
At the preliminary injunction hearing, counsel for defendants admitted that the facts of the case are as set forth in the plaintiff's affidavit, that there was no need for further evidentiary hearing, and that the question to be decided was purely a question of law. The plaintiff subsequently filed a motion for summary judgment and it is upon that motion that the court now acts.
The uncontroverted facts of this case are relatively simple. Mr. Strauss, a native of Mobile, Alabama, attended Tulane Law School. There he studied the commonlaw curriculum with a view toward returning to Mobile to practice law, and, during the summers, clerked for Mobile firms. His senior year, Mr. Strauss applied and was certified to take the Alabama bar exam by the Committee on Character and Fitness. Mr. Strauss, however, accepted employment with the firm of Phelps, Dunbar, Marks, Claverie & Sims in New Orleans, and therefore withdrew his application for the Alabama bar examination. Subsequently, Mr. Strauss was admitted to the bar of the Supreme Court of Louisiana and has practiced law with the Phelps firm for the past three years.
Desiring to practice law in his home state, Mr. Strauss again made application to take the Alabama bar examination administered July 27 through 29, 1981. In doing so, plaintiff was required to pay $310.00 for the privilege of sitting for the bar inasmuch as he was an out-of-state resident. In-state residents had to pay only $135.00 for the same privilege. Presumably, one of the reasons that the plaintiff had to pay more than twice as much as an Alabama resident for the same privilege is that out-of-state residents must fill out an additional application to the National Conference of Bar Examiners, a nationwide investigatory service which examines each applicant's qualifications *175 and moral character. The Committee on Character and Fitness notified the plaintiff on or about July 2 that his application had been rejected because, as Mr. Strauss readily admits, he did not meet the residence requirement. As stated in Mr. Strauss's affidavit, to meet that residence requirement would have necessitated quitting his job in New Orleans, moving to Alabama for at least three weeks prior to the examination, and, since the results of the July examination would not be known for about four months, during which time he would be unable to practice law, would result in substantial loss of income.
In plaintiff's verified complaint, he alleges that he "has been damnified in the deprivation of his liberty interest without due process of law in manner aforesaid and has, moreover, been denied a privilege otherwise accorded a citizen of the State of Alabama by reason of his Louisiana residence." The plaintiff's claim arises under the privileges and immunities clause of Article IV, Section 2 of the United States Constitution and the fourteenth amendment thereto.
The residence requirement under attack constitutes a portion of Rule IVA of the Rules Governing Admission to the Alabama State Bar,[1] issued January 1981, and reads as follows:
RULE IV
WHO ENTITLED TO ADMISSION BY EXAMINATION
A. Prelegal Requirements.
Any citizen of the United States or resident alien who has filed a declaration of intent to become a United States citizen, and who is above the age of twenty-one years, having complied with the requirements of Rule I hereof, and whose character and fitness have been approved by the Committee on Character and Fitness and who is, at the date of filing of the application, a bona fide resident of the State of Alabama and is in fact a resident of the State of Alabama at the time of certification to sit for the bar examination, is entitled to be examined for admission to the Bar of Alabama, at any examination held as herein prescribed, ....
(Emphasis added.) Since certification to applicants usually issues three weeks prior to commencement of the examination, the Committee on Character and Fitness established, as an administrative interpretation of Rule IV A, the requirement that an applicant actually reside in Alabama for three weeks prior to the examination. The plaintiff attacks both the residence requirement and the administrative interpretation. Having considered the rule, the arguments and submissions of counsel and applicable law, this court concludes that, for the reasons stated herein, the residence requirement violates the privileges and immunities clause of the United States Constitution and that the defendants should be enjoined from enforcing that requirement.
In support of the residence requirement, the defendants cite numerous cases from the early 1970's in which courts upheld residence requirements of as long as six months.[2] These cases predate those relied upon by the plaintiff and were decided before the Supreme Court decisions in Hicklin v. Orbeck, 437 U.S. 518, 98 S.Ct. 2482, 57 L.Ed.2d 397 (1978), and Baldwin v. Montana Fish & Game Commission, 436 U.S. 371, 98 S.Ct. 1852, 56 L.Ed.2d 354 (1978), which revitalized the privileges and immunities clause.[3] The cases relied upon by plaintiff, *176 on the other hand, decided after the Hicklin and Baldwin cases and relying upon them, present more persuasive authority and support a conclusion that the Alabama residency requirement does not pass constitutional muster.
For example, in Gordon v. Committee on Character and Fitness, 48 N.Y.2d 266, 422 N.Y.S.2d 641, 397 N.E.2d 1309 (1979), a non-resident of New York successfully challenged the New York six-month residency requirement for applicants to the bar. In a well-reasoned opinion, the New York Court of Appeals relied on the recent Hicklin decision as well as the Supreme Court decisions in Bates v. State Bar of Arizona, 433 U.S. 350, 97 S.Ct. 2691, 53 L.Ed.2d 810 (1977) (allowing advertising for attorneys) and in Goldfarb v. Virginia State Bar, 421 U.S. 773, 95 S.Ct. 2004, 44 L.Ed.2d 572 (1975) (allowing published legal fee schedules), in holding that the residency requirement in question violated the privileges and immunities clause. Based on those and other Supreme Court cases, the New York court concluded that "[i]t is now beyond dispute that the practice of law, despite its historical antecedents as a learned profession somehow above that of the common trades, is but a species of those commercial activities within the ambit of the [privileges and immunities] clause." 422 N.Y.S.2d at 644, 397 N.E.2d at 1312.
In reaching its decision, the Gordon court noted that the residence requirement worked an invidious discrimination against nonresidents inasmuch as an attorney admitted to practice in another state would have to move to New York and give up an established practice and residence for several months in order to fulfill the New York requirement. The residence rule also precluded one who desired to concentrate in a particular area of expertise from engaging in a multistate practice. 422 N.Y.S.2d at 644, 397 N.E.2d at 1312.
The New York court enunciated a test consisting of two distinct hurdles which the discriminatory restrictions must surmount in order to stand. First, the governmental interest asserted to justify the discrimination must undergo careful examination to determine whether such interest is substantial, "that is, whether `non-citizens constitute a peculiar source of the evil at which the statute is aimed.'" 422 N.Y.S.2d at 645, 397 N.E.2d at 1313, quoting Toomer v. Witsell, 334 U.S. 385, 398, 68 S.Ct. 1156, 1163, 92 L.Ed. 1460 (1948). If nonresidents do in fact constitute a problem which the state legitimately may address, the question then becomes "whether the means adopted to achieve that goal are narrowly drawn and are the least restrictive alternatives available (Hicklin v. Orbeck, 437 U.S. 518, 528, 98 S.Ct. 2482 [2488], 57 L.Ed.2d 397, supra)." 422 N.Y.S.2d at 645, 397 N.E.2d at 1313.
Although a state has a constitutionally permissible interest in determining that those admitted to its bar possess both requisite knowledge and character, the Gordon court concluded that, since the applicant had not been excluded due to a challenge to his good character, the residence requirement "serves no purpose other than to deny persons the right to pursue their professional career objectives because of parochial interests." 422 N.Y.S.2d at 645, 397 N.E.2d at 1313. The court also noted that the state was "at a complete loss to justify the blanket discrimination against nonresidents." 422 N.Y.S.2d at 645, 397 N.E.2d at 1313. After examining several reasons frequently asserted in support of residency requirements (such as the necessity to observe and evaluate an applicant's character, the interest of the state in controlling the attorneys who appear in its courts, the interest of the state in ensuring that the members of its bar are well-acquainted with local law and customs), the court concluded that less restrictive alternatives exist by which the state could accomplish its objectives without precluding nonresidents from practicing. 422 N.Y.S.2d at 645-46, 397 N.E.2d at 1313-14.
*177 Another case which merits detailed mention is Sheley v. Alaska Bar Association, 620 P.2d 640 (Alaska 1980), which involved facts very similar to the present case. In that case the Alaska Supreme Court ruled that the Alaska Bar Association requirement that an applicant be domiciled in Alaska at least thirty days prior to the bar examination violated the plaintiff's rights under the privileges and immunities clause of the United States Constitution.[4] The plaintiff, Ms. Sheley, was working as a law clerk for a federal district judge in Texas and planning to move to Alaska in June of 1980 to practice law, applied to take the February 1980 bar examination. She notified the Alaska Bar Association that she would be unable to meet the thirty-day residency requirement because she could not move to Alaska until after her clerkship, and that it would be financially impossible for her to take the July examination, as to do so would in effect prevent her from practicing law and earning a living for at least four months. The Board of Governors denied her application because she could not meet the residency requirement. 620 P.2d at 641.
The Alaska court recognized that the "practice of law by qualified persons is a `fundamental right' triggering scrutiny under the privileges and immunities clause." 620 P.2d at 643.[5] Since the practice of law qualifies as a "fundamental right," the residency requirement, which clearly discriminated against nonresidents, could only be upheld if the state could show valid independent reasons to justify disparate treatment and that the degree of discrimination bears a close relationship to those reasons the test first developed in Toomer v. Witsell, 334 U.S. 385, 68 S.Ct. 1156, 92 L.Ed. 1460 (1948), and recently confirmed in Hicklin v. Orbeck, 437 U.S. 518, 98 S.Ct. 2482, 57 L.Ed.2d 397 (1978).
The Alaska Bar Association contended that a substantial reason existed to support the rule in that the rule afforded an opportunity to investigate an applicant's moral character and qualifications. The existence of a legitimate state interest on its own is insufficient; there must be a "substantial relationship" between the means chosen and the legitimate objectives to be achieved. The Sheley court concluded that the discrimination worked by the rule against nonresidents did not bear a substantial relationship to the end sought by the bar association since less restrictive means exist that would achieve the legitimate objectives. 620 P.2d at 645. Furthermore, the short residence period would be insufficient for the assessment of an applicant's character because information concerning fitness and character would be found outside of Alaska. One less restrictive means noted by the Alaska court involves the nationwide investigatory service of the National Conference of Bar Examiners. 620 P.2d at 645, citing Keenan v. Board of Law Examiners, 317 F.Supp. 1350, 1360 (E.D.N. C.1970).
In summation, the Sheley court concluded that, although the efforts of the bar association to insure that bar applicants be morally qualified to practice law was commendable, the association could not abridge applicants' constitutional rights in pursuit of those goals. The court thus concluded that *178 "[w]e believe that the bar residency requirement is the sort of economic protectionism that the privileges and immunities clause of the United States Constitution was designed to prevent." 620 P.2d at 646.
Having reviewed these, and other, cases, this court concludes that the case before it falls in line with the rationale and conclusions of the Gordon and Sheley cases. A rule that denies an applicant the right to take the Alabama bar examination for no reason other than that he does not reside in Alabama fosters economic protectionism and parochial interests in violation of the privileges and immunities clause of the United States Constitution and thus cannot stand. It is not just the administrative interpretation implementing a three-week residence requirement that this court deems obnoxious; the requirement of Rule IV itself that one certified to take the examination must be a bona fide resident of Alabama without respect to the time period for such residence violates the privileges and immunities clause. See Hicklin v. Orbeck, 437 U.S. 518, 526-28, 98 S.Ct. 2482, 2486-88, 57 L.Ed.2d 397, 403-06 (1978).
The Alabama State Bar Association has not attempted to justify the residence requirement by asserting that it fosters some compelling state interest. Instead, the Bar merely contends in its brief that the Alabama residency requirement "is one of the most liberal of any state in the United States." Perhaps the Alabama rule may be classified as "liberal;" that does not prevent it from violating the constitutional rights of nonresident applicants. The Supreme Court indicated such to be true in Hicklin v. Orbeck, 437 U.S. 518, 98 S.Ct. 2482, 57 L.Ed.2d 397 (1978), when it declared unconstitutional an Alaska statute which favored the hiring of only Alaska residents for work in oil fields in which the state had an interest. The Alaska Supreme Court declared the one-year durational residency requirement unconstitutional, but held that the act's general preference for Alaska residents was constitutionally permissible. After examining the privileges and immunities clause in detail, the Supreme Court concluded that the residence requirement even without a durational time period did not meet constitutional muster. Even assuming that Alaska had a legitimate interest in trying to alleviate its unemployment problem, there was no showing that nonresidents presented "a peculiar source of the evil" the so-called "Alaska Hire" statute was enacted to remedy, and therefore the discrimination against nonresidents could not withstand scrutiny under the privileges and immunities clause. 437 U.S. at 526, 98 S.Ct. at 2487, 57 L.Ed.2d at 405, citing Toomer v. Witsell, 334 U.S. 385, 398, 68 S.Ct. 1156, 1163, 92 L.Ed. 1460 (1948).
Likewise, there has been no attempt made to show that nonresidents pose a "peculiar source of evil" to the ideal of maintaining a bar of qualified attorneys. Further, the requirement that candidates for the bar be residents of Alabama does little to ensure that applicants are qualified since the bar association does not utilize the period of residency to observe and evaluate candidates. Additionally, the Alabama State Bar Association employs the nationwide investigatory services of the National Conference of Bar Examiners to obtain information on the character and fitness of nonresident applicants. The use of this service has been often suggested by courts as a less restrictive alternative for determining the fitness of bar applicants.[6] Presumably, the additional expense of the use of this service forms the basis of the extra fee which nonresidents must pay for the privilege of sitting for the Alabama bar examination. The information supplied by the National Conference of Bar Examiners provides a much stronger basis for evaluating a nonresident applicant's qualifications to practice law than can be obtained by requiring *179 an out-of-state resident to reside in Alabama for any period of time.
The invidious discrimination against nonresidents worked by this rule bears no relationship to the legitimate state interest of ensuring the competency and rectitude of members of its bar, and thus fails to meet the test for scrutiny under the privileges and immunities clause. See, Toomer v. Witsell, 334 U.S. 385, 398-99, 68 S.Ct. 1156, 1163, 92 L.Ed. 1460 (1948); Mullaney v. Anderson, 342 U.S. 415, 72 S.Ct. 428, 96 L.Ed. 458 (1952); Hicklin v. Orbeck, 437 U.S. 518, 526, 98 S.Ct. 2482, 2487, 57 L.Ed.2d 397, 405 (1978). Further, less restrictive and more effective means exists for ensuring the quality of applicants to the bar, such as utilization of the services of the National Conference of Bar Examiners, which would not preclude a nonresident from practicing his chosen profession in the state of Alabama merely because of his place of residence. The court finds that the residency requirement constitutes a protectionistic trade barrier for the economic protection of local interests. The only compelling state interest in a requirement of mere residency appears to be the creation of an oligopoly for the benefit of its residents. Such action by one state falls precisely within the category of state action which the framers of our Constitution sought to eradicate with the privileges and immunities clause. The purposes of the clause have been variously stated as to establish a "norm of comity," Austin v. New Hampshire, 420 U.S. 656, 660, 95 S.Ct. 1191, 1194, 43 L.Ed.2d 530 (1975), to prevent "a state from discriminating against citizens of other states in favor of its own," Hague v. CIO, 307 U.S. 496, 511, 59 S.Ct. 954, 962, 83 L.Ed. 1423 (1939), to foster nationalism and assure equality of citizens within any state and thus "to constitute the citizens of the United States one people," Paul v. Virginia, 75 U.S. (8 Wall.) 168, 180, 19 L.Ed. 357 (1869), cited in Baldwin v. Montana Fish and Game Commission, 436 U.S. 371, 380-81, 98 S.Ct. 1852, 1858-59, 56 L.Ed.2d 354, 363 (1978). In short, the essence of the clause "prevents a State from discriminating against nonresidents merely to further its own parochial interests or those of its residents," Gordon v. Committee on Character and Fitness, 422 N.Y.S.2d 641, 643, 397 N.E.2d 1309, 1311 (1979), citing Hicklin v. Orbeck, 437 U.S. 518, 98 S.Ct. 2482, 57 L.Ed.2d 397 (1978).
Whatever may be the ultimate reach of the expanded and reinvigorated privileges and immunities clause, it is well settled that a state may not premise one's right to practice his chosen occupation within its borders solely on residence. This clause thus precludes a state from imposing discriminatory burdens on nonresidents, whether by means of artificial trade barriers in the form of unequal licensing fees, as in Toomer v. Witsell, 334 U.S. 385, 68 S.Ct. 1156, 92 L.Ed. 1460 (1948), or employment preferences granted only to residents, as in Hicklin v. Orbeck, 437 U.S. 518, 98 S.Ct. 2482, 57 L.Ed.2d 397 (1978).
Therefore, the court finds that the requirement that all certified candidates for admission to the Alabama State Bar Association be bona fide residents of the state egregiously discriminates against nonresidents and thwarts the purposes of the privileges and immunities clause. Accordingly, this court concludes that the residence requirement of the Alabama State Bar Association is unconstitutional, and that the defendants should be permanently enjoined from enforcing that provision of its Rules Governing Admission to the Alabama State Bar.
NOTES
[1] The Alabama State Bar Association is an integrated bar. The Board of Commissioners, pursuant to statutory authority, promulgated these Rules which were approved by the Supreme Court of Alabama, and have the force and effect of law. See, Alabama Code, 1975, § 34-3-43.
[2] E. g., Kline v. Rankin, 352 F.Supp. 292 (N.D. Miss.1972); Tang v. Appellate Division of New York Supreme Court, 373 F.Supp. 800 (D.C.N. Y.1972), aff'd 487 F.2d 138 (2d Cir. 1973), cert. den. 416 U.S. 906, 94 S.Ct. 1611, 40 L.Ed.2d 111 (1974); Suffling v. Bondurant, 339 F.Supp. 257 (D.C.N.M.1972), aff'd Rose v. Bondurant, 409 U.S. 1020, 93 S.Ct. 460, 34 L.Ed.2d 312 (1972).
[3] These two Supreme Court decisions inspired a Harvard Law Review article which prophesied that the privileges and immunities clause provided "a promising basis for future attacks on state residency requirements." Note, 92 Harv.L.Rev. 1461, 1464 (1979).
[4] The plaintiff also contended that the restriction violated the equal protection clause. Since the court concluded that the residency rule violated the privileges and immunities clause, it did not determine the equal protection challenge. 620 P.2d at 641, n. 4.
[5] The court observed that the United States Supreme Court in Baldwin v. Montana Fish and Game Commission, quoted with approval the list of fundamental rights which had been compiled in 1823 in Corfield v. Coryell, the first major case decided under the privileges and immunities clause:
[Fundamental rights include the] right of a citizen of one state to pass through, or to reside in any other state for purposes of trade, agriculture, professional pursuits or otherwise; to claim the benefit of the writ of habeas corpus, to institute and maintain actions of any kind in the courts of the state; to take, hold and dispose of property, either real or personal[.]
620 P.2d at 643, quoting Baldwin v. Montana Fish and Game Commission, 436 U.S. 371, 384, 98 S.Ct. 1852, 1860, 56 L.Ed.2d 354, 365 (1978), quoting Corfield v. Coryell, 6 Fed.Cas.No. 3,230 pp. 546, 552 (C.C.E.D.Pa.1823) (emphasis added in Sheley case).
[6] E. g., Keenan v. Board of Law Examiners, 317 F.Supp. 1350 (E.D.N.C.1970); Sheley v. Alaska Bar Association, 620 P.2d 640, 645 (Alaska 1980).
| {
"pile_set_name": "FreeLaw"
} |
719 S.E.2d 254 (2011)
STATE
v.
THOMAS.
No. COA11-573.
Court of Appeals of North Carolina.
Filed November 15, 2011.
Case Reported Without Published Opinion No Error.
| {
"pile_set_name": "FreeLaw"
} |
346 F.3d 1190
KELTON ARMS CONDOMINIUM OWNERS ASSOCIATION, INC., Plaintiff-Appellee,v.HOMESTEAD INSURANCE COMPANY, Defendant-Appellant.
No. 02-55724.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted May 8, 2003.
Filed October 14, 2003.
Howard Wollitz, Allan J. Favish, Charlston, Revich & Chamberlin, L.L.P., Los Angeles, CA, for the defendant-appellant.
Matthew S. Shorr, Hunt, Ortmann, Blasco, Palffy & Rossell, Inc., Pasadena, CA, for the plaintiff-appellee.
Appeal from the United States District Court for the Central District of California; Terry J. Hatter, Jr., District Judge, Presiding. D.C. No. CV-02-02587-TJH.
Before B. FLETCHER, SILVERMAN, Circuit Judges, and MARTONE, District Judge.*
MARTONE, District Judge.
We are asked to decide whether the federal removal statute, 28 U.S.C. § 1447(c), allows the district court to remand a case sua sponte for a non-jurisdictional defect in procedure. We hold that it does not.
I.
Kelton Arms Condominium Association, Inc. (Kelton), filed an action on December 28, 2001, in the Superior Court of California against Homestead Insurance (Homestead), alleging breach of contract and bad faith. Kelton served its complaint on Homestead on March 8, 2002. Homestead removed the case on March 28th. Homestead did not identify the service date in the removal papers.
The district court remanded the case sua sponte on April 4th, stating only that the case had been "improperly removed." Homestead filed a motion to reconsider asking the district court to state the basis of its order. It suspected that the district court might have remanded based upon abstention. Homestead later supplemented its motion, fearing that the district court might have remanded because it erroneously believed that removal was untimely under 28 U.S.C. § 1446(b). Homestead submitted a declaration stating that service had been made on March 8th, and therefore removal was timely under section 1446(b). The motion to reconsider was denied without comment.
II.
We first address our jurisdiction to review the remand order. Other than one exception not applicable here, 28 U.S.C. § 1447(d) states that a remand order "is not reviewable on appeal or otherwise." Despite this broad prohibition, the United States Supreme Court has held that section 1447(d) must be read together with section 1447(c). Thermtron Prods., Inc. v. Hermansdorfer, 423 U.S. 336, 345-46, 96 S.Ct. 584, 46 L.Ed.2d 542 (1976), abrogated on other grounds in Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 116 S.Ct. 1712, 135 L.Ed.2d 1 (1996). Section 1447(d) precludes review only of remands made pursuant to section 1447(c). Id. at 346, 96 S.Ct. 584.
Thus, if the district court lacked authority to remand under section 1447(c), section 1447(d) would not preclude review. If, on the other hand, the district court had the power to remand sua sponte under section 1447(c), section 1447(d) would apply, and we would have no jurisdiction to review even if the remand was erroneous.
Thus, the question of jurisdiction is tied to the merits. This is one of those rare cases in which we must decide the merits to decide jurisdiction. We, of course, have jurisdiction to decide jurisdiction.
III.
We turn to the issue of whether the district court had the authority to remand a case sua sponte for a non-jurisdictional procedural defect under section 1447(c). The full text of section 1447(c) provides:
A motion to remand the case on the basis of any defect other than lack of subject matter jurisdiction must be made within 30 days after the filing of the notice of removal under section 1446(a). If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded. An order remanding the case may require payment of just costs and any actual expenses, including attorney fees, incurred as a result of the removal. A certified copy of the order of remand shall be mailed by the clerk to the clerk of the State court. The State court may thereupon proceed with such case.
In Maniar v. FDIC, 979 F.2d 782, 786 (9th Cir.1992) we held that the thirty day limit applied to sua sponte remands, but we specifically "assum[ed] without deciding that a district court may remand sua sponte for procedural defects in a removal." Id. We did not decide the question of whether the district courts may remand sua sponte because we did not have to — the court remanded more than thirty days after removal. Since then, five other circuits have addressed the question. Each has held that the district courts have no authority to remand a case sua sponte for procedural defects. Whole Health Chiropractic & Wellness, Inc. v. Humana Med. Plan, Inc., 254 F.3d 1317 (11th Cir.2001); In re FMC Corp. Packaging Sys. Div., 208 F.3d 445 (3d Cir.2000); Page v. City of Southfield, 45 F.3d 128 (6th Cir.1995); In re Cont'l. Cas. Co., 29 F.3d 292 (7th Cir.1994); In re Allstate Ins., 8 F.3d 219 (5th Cir.1993). We recognize that procedural rules are best applied uniformly, and we decline to create a circuit split unless there is a compelling reason to do so. Maniar, 979 F.2d at 785. Here, there is no reason to do so that is not outweighed by the sound considerations noted by the other circuits.
The first sentence of section 1447(c) "consigns procedural formalities to the care of the parties." In re Allstate, 8 F.3d at 223. The second sentence "assigns to the court concern for its jurisdictional prerequisites." Id.; see also Page, 45 F.3d at 133. This division makes sense. Subject matter jurisdiction may not be waived, and, indeed, we have held that the district court must remand if it lacks jurisdiction. See Sparta Surgical Corp. v. Nat'l Ass'n. Sec. Dealers, Inc., 159 F.3d 1209, 1211 (9th Cir.1998).
In contrast, procedural requirements exist primarily for the protection of the parties. Like personal jurisdiction, they can be waived. Whole Health, 254 F.3d at 1321; Page, 45 F.3d at 134; Cont'l. Cas., 29 F.3d at 294. A plaintiff may wish to remain in federal court even though he or she originally filed in state court. For example, a plaintiff might do this simply to expedite the litigation.
Our holding also decreases the likelihood of unreviewable error. This case illustrates the problem. The district court gave no specific reason for its decision and remanded the case without notice to the parties. Because Homestead failed to identify the date of service in its removal papers, the district court likely assumed that removal was untimely and therefore procedurally defective. See Maniar, 979 F.2d at 785 (untimely removal is a procedural defect). Yet not even Kelton argues that Homestead's removal was actually untimely.
IV.
Recognizing that every other circuit has concluded that the district court has no such authority, and that there are good and sufficient reasons to reach this conclusion, we hold that the district court cannot remand sua sponte for defects in removal procedure. We further hold that because the district court lacked authority to remand sua sponte under section 1447(c), section 1447(d) interposes no jurisdictional barrier to review. The district court's remand order is VACATED and the case is REMANDED to the district court for further proceedings consistent with this opinion.
VACATED and REMANDED.
Notes:
*
The Honorable Frederick J. Martone, United States District Judge for the District of Arizona, sitting by designation
| {
"pile_set_name": "FreeLaw"
} |
624 F.2d 1093
Carmichaelv.South Carolina State Personnel Department
79-1018
UNITED STATES COURT OF APPEALS Fourth Circuit
6/16/80
1
D.S.C.
AFFIRMED
| {
"pile_set_name": "FreeLaw"
} |
578 F.Supp. 212 (1984)
FIRST WESTERN GOVERNMENT SECURITIES, INC., et al., Plaintiffs,
v.
UNITED STATES of America, et al., Defendants.
Civ. A. No. 83-JM-548.
United States District Court, D. Colorado.
January 10, 1984.
*213 Stanley L. Drexler, Drexler, Wald & Abramovitz, P.C., Denver, Colo., Richard Sideman, Sideman & Bancroft, San Francisco, Cal., for plaintiffs.
*214 Michael J. Kearns, Trial Atty., Tax Div., U.S. Dept. of Justice, Washington, D.C., Janis E. Chapman and Nancy E. Rice, Asst. U.S. Attys., Denver, Colo., for defendants.
ORDER
JOHN P. MOORE, District Judge.
THIS MATTER is before me on motions to dismiss filed by two separate groups of defendants in this action. Jurisdiction in this cause is founded upon 26 U.S.C. §§ 7217 and 7431.[1]
The complaint seeks relief against the United States and 14 of its employees in the Internal Revenue Service (Service) of the United States Department of Treasury. The complaint alleges that a Revenue Agent's Report ("RAR") prepared by defendant Cottingim concerning plaintiffs' business operations and practices contained confidential "return information" of the plaintiffs as that term is defined in 26 U.S.C. § 6103(b)(2)(A). The RAR was caused to be disseminated by some of the defendants to investors of First Western. Plaintiffs allege that disclosure of this information was not made for the purpose of obtaining information with respect to the correct determination of tax liability or for the purpose of explaining to investors why their First Western write-offs were disallowed, but was made as a result of gross negligence, or willfully and maliciously with the intent of damaging plaintiffs' business and business reputation.
Defendants Armstrong, Roginski, Davis, Metcalf, and Carpenter were dismissed from this action by a stipulation entered between the parties on July 13, 1983. Of the remaining defendants, defendants Merlo, Beck, Cottingim, Geisler, and De La Pena have filed a motion to dismiss the complaint on the grounds that they are not subject to the personal jurisdiction of this court. Defendants United States, Lobsinger, Graham, Cofone, and Conley have filed a motion to dismiss on the grounds that no cause of action has been stated upon which relief can be granted. Because the latter motion is accompanied by, and relies upon, matters outside the complaint, it will be treated as a motion for summary judgment under Rule 12(c) of the Federal Rules of Civil Procedure.
I. Motion to Dismiss
Plaintiffs assert that this action is properly before the court pursuant to 28 U.S.C. § 1391(e), which provides:
A civil action in which a defendant is an officer or employee of the United States or any agency thereof acting in his official capacity or under color of legal authority, or an agency of the United States, or the United States, may, except as otherwise provided by law, be brought in any judicial district in which (1) a defendant in the action resides, or (2) the cause of action arose, or (3) any real property involved in the action ....
The summons and complaint in such an action shall be served as provided by the Federal Rules of Civil Procedure except that the delivery of the summons and complaint to the officer or agency as required by the rules may be made by certified mail beyond the territorial limits of the district in which this action is brought.
Under the terms of this statute, the instant action is properly in Colorado because some of the named defendants reside in this district. However, defendants challenge the very applicability of § 1391(e) to these facts in their motion to dismiss.
Recently, the United States Supreme Court held this section inapplicable to a suit for money damages brought against a federal official in his individual capacity. Stafford v. Briggs, 444 U.S. 527, 537, 100 S.Ct. 774, 781, 63 L.Ed.2d 1 (1980). *215 The Court's holding was based on an extensive review of the legislative history of the section and on the policy of not wanting to place federal officers, solely by reason of their government service, in a different posture in personal damages suits from that of all other persons. Plaintiffs direct the court to a footnote in Stafford where the Court notes in passing that § 1391(e) does apply to actions which are nominally against an individual officer but are in reality against the government. The identity of the named parties defendant is not controlling in deciding whether an action is against the government. The dispositive issue is whether the judgment is ultimately payable by the government or by the individual. Stafford v. Briggs, 444 U.S. 542, n. 10, 100 S.Ct. 784, n. 10.
Thus, the question of whether the extraterritorial service of process and nationwide venue provisions of 28 U.S.C. § 1391 are applicable here turns on a determination of whether this complaint is brought against the defendants in their individual capacities or in their official capacities. The plaintiffs seek to support their position that the defendants are being sued in their official capacities by directing me to 26 U.S.C. § 7423(2), which authorizes the Secretary to repay all damages and costs recovered against any officer or employee of the United States in any suit brought against him in the due performance of his duties under title 26. Plaintiffs read this section as effectively insulating defendants from any personal liability for a damage award in this action and thus conclude that because the United States will pay any judgment awarded, the application of the service of process and venue provisions of 28 U.S.C. § 1391 is appropriate.
I disagree. Initially, it must be noted that the language of 26 U.S.C. § 7423(2) is permissive, not mandatory. Lutz v. United States, 82-1 U.S.T.C. ¶ 9274 (S.D.Tex.1982). Accordingly, it cannot be established definitively that the individual defendants would not ultimately be liable for any resulting judgment. More importantly, Stafford v. Briggs, read as a whole, makes clear that the intended scope of § 1391(e) is limited to mandamus type actions. Id. 100 S.Ct. at 782. Here, the plaintiffs have named the individuals as defendants; and their complaint seeks damages from the individuals, thus making the action one against the defendants personally and not in the nature of mandamus. To accept plaintiffs' line of reasoning would render this distinction set out in Stafford meaningless. It seems to me that a careful reading of Stafford leads to the conclusion that this is precisely the kind of action in which the scope of § 1391 was intended to be limited in order to relieve federal employees from having to defend in distant forums solely because of their status as federal employees.
Because 28 U.S.C. § 1391(e) is inapplicable to the case at bar, jurisdiction can be asserted over these out-of-state defendants only if they are subject to jurisdiction under the Colorado long-arm statute, Colo. Rev.Stat. § 13-1-124(1) (1973). That statute provides that personal jurisdiction can be asserted over nonresident defendants who transact business in Colorado or who have committed a tortious act in the state. The defendants have submitted affidavits that establish that they are all residents of states other than Colorado and that they have at no time participated in any work assignments in Colorado or traveled to Colorado in connection with any work assignments. On the basis of these uncontroverted affidavits, it cannot be argued that defendants have transacted business in Colorado as that phrase has been defined by case law interpreting the long-arm statute. See People ex rel. Jeffers v. Gibson, 181 Colo. 4, 508 P.2d 374 (1973); Safari Outfitters, Inc. v. Superior Court, 167 Colo. 456, 448 P.2d 783 (1968).
It is clear from a reading of the complaint that the only tortious act which could serve as a basis for long-arm jurisdiction in Colorado is the disclosure of the RAR. Disclosure of the RAR by defendants to other agents in the Service is authorized by 26 U.S.C. § 6103(h)(1), and it is not alleged that any of the out-of-state defendants *216 disclosed the RAR to customers of First Western in Colorado. Accordingly, long-arm jurisdiction cannot be exercised over defendants on that basis. Because the defendants have not committed tortious acts within Colorado nor have "minimum contacts" with the state, jurisdiction over them cannot be exercised by this court under the Colorado long-arm statute. Premier Corp. v. Newsom, 620 F.2d 219 (10th Cir.1980).
II. Motion for Summary Judgment
The remaining defendants, the United States and Colorado residents Lobsinger, Graham, Cofone, and Conley, cite four grounds in support of their argument that the allegations of the complaint do not as a matter of law state a cause of action. These grounds are (1) that no disclosures of tax return information of the plaintiffs have been made; (2) that the return information in the RAR was return information of plaintiffs' customers which may be disclosed to the customers pursuant to § 6103(e) and § 6103(h)(4)(A); (3) that even if the information in the RAR was "return information" of plaintiffs, it could still be disclosed to the First Western investors under § 6103(h)(4)(C); and (4) that each of the defendants acted at all times with the good faith belief that the disclosure of the RAR was proper.
Because it is impossible to address these contentions in a factual vacuum, it is necessary to briefly supplement the factual background of this action. Plaintiff, First Western Securities, Inc., is allegedly a dealer and broker in government securities. Samuels, Kramer and Co. is an investment advisor which provides investment services to First Western. Plaintiff Sidney Samuels is the president of both First Western and Samuels, Kramer and Co. Following an in-house investigation in 1981 and early 1982, the defendants notified customers of First Western by means of a formal report of the Service, called a "30-day letter," that losses claimed by the customers on their income tax returns as a consequence of certain transactions with First Western would be disallowed in full. Accompanying each letter was the RAR which set forth grounds claimed by the Service for disallowing the losses. The RAR included a statement describing testimony given by Sidney Samuels, during the course of which he repeatedly invoked the fifth amendment in response to questions concerning the nature of his practices and operations. The testimony was elicited to enforce IRS summonses in connection with audits of First Western investors. Plaintiffs have not alleged that the defendants disclosed the RAR or the information contained therein to any persons except First Western investors or their representatives.
Section 7431(a)(1) of the Internal Revenue Code, 26 U.S.C. § 7431(a)(1) provides:
If any officer or employee of the United States knowingly, or by reason of negligence, discloses any return or return information with respect to a taxpayer in violation of any provision of section 6103, such taxpayer may bring a civil action for damages against the United States in a district court of the United States.
Thus, the issue is whether these defendants disclosed return information of the plaintiffs in the RAR that violated § 6103. Section 6103 in general specifies that tax returns and information collected with regard to establishing the existence or amount of a tax liability shall be confidential. The section goes on to provide exceptions under which information may be released to various types of interested parties, including the taxpayer himself. Return information is defined in 26 U.S.C. § 6103(b)(2)(A).[2]
*217 The parties argued at length concerning whether the information used in preparation of the RAR contained return information of the plaintiffs or was information gathered and generated solely from audits of First Western investors. It is my conclusion after reviewing the affidavits submitted and the RAR itself that the great bulk, if not all, of the information disclosed in the RAR was gained through audits of the investors themselves. Accordingly, the disclosure of that information to the investors was clearly allowable pursuant to 26 U.S.C. § 6103(e). However, even assuming for purposes of this motion that the mention of Mr. Samuel's decision to invoke the fifth amendment privilege during related proceedings can be considered return information of the plaintiffs, I still find that the disclosure of the information contained in the RAR was authorized.
A return or return information may be disclosed in a Federal or State judicial or administrative proceeding pertaining to tax administration, but only
....
(C) if such return or return information directly relates to a transactional relationship between a person who is a party to the proceeding and the taxpayer which directly affects the resolution of an issue in the proceeding ....
26 U.S.C. § 6103(h)(4). There is little doubt that an audit, with its numerous procedural steps and protections and its appeal process, constitutes an administrative proceeding relating to tax administration.[3] It is also undisputed that the investors to whom the RAR was disclosed were themselves parties to the audit.
Plaintiffs respond, however, that the provisions of § 6103(h)(4) apply only when the disclosure is made to government officials for their use in a trial and do not apply so as to authorize disclosure of the information to a taxpayer. They rely on Chamberlain v. Kurtz, 589 F.2d 827 (5th Cir.1979), cert. denied, 444 U.S. 842, 100 S.Ct. 82, 62 L.Ed.2d 54, in support of this argument. Chamberlain held § 6103(h)(4) inapplicable where a taxpayer who brought a Freedom of Information Act suit against the IRS sought to compel production of records contained in a criminal file where the Secretary had withheld those documents from disclosure on the grounds that the disclosure would seriously impair federal tax administration. Given the factual differences between Chamberlain and the case at bar, the former offers little support for plaintiffs' position. On its face, § 6103(h)(4)(C) provides that disclosure can be made to a party to an administrative proceeding if the return information relates to a transactional relationship between the party and the taxpayer. The disclosure of information relevant to the audit is consistent with the mandate found in 26 C.F.R. § 601.105(c)(2)(ii). That regulation provides that a revenue agent should "prepare a complete examination report [RAR] fully explaining all proposed adjustments" to be provided to the taxpayer with his "30-day letter."
Here, it is clear that to the extent the information in the RAR contained confidential return information of plaintiffs, the use of that information was authorized under § 6103(h)(4)(C) because the information was used in the course of an administrative tax proceeding and clearly relates to a transactional relationship between the investors to whom the RAR was disclosed and the taxpayer, which directly affects the resolution of the proceeding. The fact that the promoter of a tax shelter refused to provide testimony substantiating the investment transactions claimed by the investors is directly related to the question of whether there are adequate grounds to allow *218 the claimed deductions. The statute does not require that the disclosure be "necessary" to the resolution of the proceeding as plaintiffs urge, only that the disclosure affect the resolution of the issues in the proceeding.
Accordingly, it is
ORDERED:
1. The motion of defendants Merlo, Beck, Cottingim, Geisler, and De La Pena to dismiss the complaint for lack of personal jurisdiction is granted.
2. The motion of defendants United States, Lobsinger, Graham, Cofone, and Conley for summary judgment is granted. Judgment shall enter for the defendants and against plaintiffs on all claims raised in the complaint. Defendants shall have their costs upon the filing of a bill of costs within 10 days of the entry of this order.
NOTES
[1] Prior to the enactment of the Tax Equity and Fiscal Responsibility Act of 1982 (TEFRA), P.L. 97-248, an action for unauthorized disclosure of tax return information had to be brought personally against the employee making the disclosure under 26 U.S.C. § 7217. TEFRA repealed § 7217 and adopted a new § 7431, which authorizes an action against the United States as a result of disclosures made by employees of the United States. Section 7431 applies to disclosures made after September 3, 1982.
[2] "Return information" is defined at 26 U.S.C. § 6103(b)(2)(A) as:
a taxpayer's identity, the nature, source, or amount of his income, payments, receipts, deductions, exemptions, credits, assets, liabilities, net worth, tax liability, tax withheld, deficiencies, overassessments, or tax payments, whether the taxpayer's return was, is being, or will be examined or subject to other investigation or processing, or any other data, received by, recorded by, prepared by, furnished to, or collected by the Secretary with respect to a return or with respect to the determination of the existence, or possible existence, of liability (or the amount thereof) of any person under this title for any tax, penalty, interest, fine, forfeiture, or other imposition, or offense ....
[3] The steps available in the audit and appeal process are set forth in 26 C.F.R. §§ 601.105 and 601.106.
| {
"pile_set_name": "FreeLaw"
} |
07/24/2018
IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
February 20, 2018 Session1
DELORES CONLEY v. TENNESSEE FARMERS INSURANCE COMPANY
Appeal from the Circuit Court for Shelby County
No. CT-003609-15 Robert Samual Weiss, Judge
___________________________________
No. W2017-00803-COA-R3-CV
___________________________________
This appeal involves a dispute between an insurance company and one of its insureds.
Following a fire to her home, the insured brought suit requesting that the insurance
company be required to pay a claim for personal property damage. The insurance
company defended on the ground that the insurance policy was void because a
misrepresentation by the insured on her application for insurance increased the “risk of
loss.” See Tenn. Code Ann. § 56-7-103. The trial court agreed with the insurance
company and granted summary judgment in its favor. For the reasons stated herein, we
affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed and
Remanded
ARNOLD B. GOLDIN, J., delivered the opinion of the court, in which J. STEVEN STAFFORD,
P.J., W.S., and BRANDON O. GIBSON, J., joined.
Al H. Thomas and Aaron L. Thomas, Memphis, Tennessee, for the appellant, Delores
Conley.
Andrew H. Owens, Memphis, Tennessee, for the appellee, Tennessee Farmers Insurance
Company.
OPINION
BACKGROUND AND PROCEDURAL HISTORY
On May 21, 2013, a fire occurred at the Memphis residence of Appellant Delores
Conley (“Ms. Conley”), resulting in damage to both the home and personal property on
the premises. At the time of the fire, Ms. Conley was shown as an insured under a
1
Oral argument in this case was conducted at Union University, Jackson, Tennessee.
property insurance policy issued by Tennessee Farmers Insurance Company (“Tennessee
Farmers”). She filed a claim requesting that her real and personal property damage be
covered under the policy, but total relief from Tennessee Farmers was not forthcoming.
Although Tennessee Farmers paid for damages to Ms. Conley’s home, the personal
property claim eventually became a point of contention.
Eventually, in a letter sent to Ms. Conley in April 2015, Tennessee Farmers denied
Ms. Conley’s claim, citing a material misrepresentation made in her 2010 application for
insurance. The letter stated that the misrepresentation increased the risk of loss as
contemplated under Tennessee Code Annotated section 56-7-103 and therefore rendered
her policy void. Specifically at issue was Ms. Conley’s response to the question of
whether she “Ever had any property in foreclosure?” Although Ms. Conley’s answer to
this question on her insurance application was “No,” the facts reveal otherwise.
Previously, on September 27, 2005, Ms. Conley had taken title to property in
Mississippi under a warranty deed naming her and her then-husband as grantees. A few
years later, following a separation from her husband, a foreclosure occurred in relation to
the Mississippi property. Specifically, on November 4, 2008, a substitute trustee
executed a deed transferring the property to US Bank National Association as Trustee
HEAT 2006-1. In 2010, following a divorce from her husband, Ms. Conley purchased
the Memphis residence covered under the insurance policy at issue herein.
The present litigation ensued in August 2015, when Ms. Conley filed a complaint
in the Circuit Court of Tennessee for the Thirtieth Judicial District at Memphis. The
complaint averred that, while Tennessee Farmers had paid for damage to Ms. Conley’s
house, it had not paid for all personal property damage sustained as a result of the May
2013 fire. According to the complaint, Tennessee Farmers was obligated to honor Ms.
Conley’s policy and was liable to pay for her insurance claim. On August 29, 2016, Ms.
Conley filed an amended complaint. In addition to seeking recovery for her insurance
claim,2 Ms. Conley asserted claims for “extortion” and “racial discrimination.”
Regarding the latter matter, Ms. Conley alleged that Tennessee Farmers had committed
“an act of racial discrimination in violation of the United States and Tennessee
constitutions.”
In defending the lawsuit brought against it, Tennessee Farmers argued that Ms.
Conley’s insurance policy was void. Detailing its position in its answer to Ms. Conley’s
amended complaint, Tennessee Farmers stated as follows:
2
Ms. Conley prayed that, in addition to requiring Tennessee Farmers to honor her policy, the
court should find Tennessee Farmers liable pursuant to Tennessee Code Annotated section 56-7-105.
That statute provides for a 25% penalty where a refusal to pay a claim is not made in good faith.
Leverette v. Tenn. Farmers Mut. Ins. Co., No. M2011-00264-COA-R3-CV, 2013 WL 817230, at *17
(Tenn. Ct. App. Mar. 4, 2013) (citations omitted).
-2-
For affirmative defense, defendant asserts that the plaintiff made
misrepresentation on her application for insurance. The misrepresentation
is as follows:
10. “Ever had any property in foreclosure?” Your answer was
“No.”
In actuality, the plaintiff owned property located at 4121 Three Hawks
Drive, Olive Branch Mississippi foreclosed on at the end of 2008 with the
property being transferred from the plaintiff by substitute trust deed
recorded on November 5, 2008.
....
This misrepresentation on the application increased the risk of loss
as contemplated in TCA 56-7-103 and Tennessee case law construing same
and therefor[e] the insurance policy is void.
With the above argument at the forefront of its defense, Tennessee Farmers filed a
motion for summary judgment on December 6, 2016. An order granting its motion was
entered on March 22, 2017. Therein, the trial court held that Ms. Conley’s
misrepresentation on her insurance application “increased the risk of loss.” Whereas Ms.
Conley’s asserted racial discrimination claim was dismissed in connection with the entry
of the March 22 order, her extortion claim was formally dismissed pursuant to a later
entered order.3 This appeal follows the dismissal of Ms. Conley’s claims for relief.
ISSUES PRESENTED
Ms. Conley raises several issues for our review on appeal. Condensed and
restated, these issues are as follows:
(1) Whether the Circuit Court erred when it ruled that the 2008 foreclosure on the
Mississippi property (that Plaintiff did not disclose on her 2010 insurance
application) increased Defendant’s risk of loss in writing the insurance policy
within the meaning of Tennessee Code Annotated section 56-7-103.
(2) Whether the Circuit Court erred when it ruled that Plaintiff’s “No” answer to the
question “Ever had any property in foreclosure?” on the 2010 insurance
application was factually incorrect.
3
In dismissing the asserted extortion claim, the trial court noted that “Tennessee has yet to
recognize a civil claim of extortion.”
-3-
(3) Whether the Circuit Court erred when it ruled that Defendant’s contract of
insurance with Plaintiff gave Defendant the right to void the policy for an innocent
misrepresentation.
(4) Whether the Circuit Court erred when it ruled that an attorney’s memo advising
Defendant about the permissibility of voiding Plaintiff’s policy was protected from
discovery by the attorney-client privilege.
(5) Whether the Circuit Court erred by dismissing Plaintiff’s racial discrimination
claim.
(6) Whether the Circuit Court erred by dismissing Plaintiff’s extortion claim.
(7) Whether the Circuit Court erred when it ruled that, although Plaintiff’s policy was
voided for an impermissible reason, Defendant can shield itself from liability by
subsequently citing a different and permissible reason to void the policy.
STANDARD OF REVIEW
Summary judgment is appropriate when there is no genuine issue as to any
material fact and the moving party is entitled to judgment as a matter of law. Robinson v.
Baptist Mem’l Hosp., 464 S.W.3d 599, 606 (Tenn. Ct. App. 2014) (citations omitted).
“The resolution of a motion for summary judgment is a matter of law, which we review
de novo with no presumption of correctness.” Id. at 607 (citing Martin v. Norfolk S. Ry.
Co., 271 S.W.3d 76, 84 (Tenn. 2008)).
DISCUSSION
Tennessee Farmers’ Right to Void the Policy
Because the first three issues presented for our review all concern the right of
Tennessee Farmers to void Ms. Conley’s policy, we deal with them together here. We
begin by addressing Ms. Conley’s alleged lack of knowledge pertaining to the
Mississippi property that was the subject of foreclosure in 2008. According to Ms.
Conley, at the time of her application for insurance in 2010, she did not know that she
had previously owned an interest in the Mississippi property or that the property had gone
into foreclosure. Even assuming this is true, we must reject Ms. Conley’s suggestion that
Tennessee Farmers could not, as a matter of contract, void the policy for an “innocent”
misrepresentation. In relevant part, the insurance policy at issue specifically provided
that the policy would be “automatically void” if an insured “misrepresents any material
fact or circumstance” relating to the policy. The policy also provided that the policy
-4-
would be void if an insured made a false statement relating to the policy or a loss.4 As
observed by Tennessee Farmers in its appellate brief, the insurance policy did not state
that the underlying misrepresentation must be intentional, as opposed to innocent.
Inasmuch as no such distinction was made, we disagree with Ms. Conley that an innocent
misrepresentation could not serve as a predicate act for voiding the policy. Although
often accompanied by an intent to deceive, a misrepresentation simply involves the “act
of making a false or misleading assertion about something.” Black’s Law Dictionary
1022 (8th ed. 2004).
Nor is there any absolute legal barrier preventing an insurer from voiding a policy
based on an “innocent” misrepresentation. Notwithstanding Ms. Conley’s argument that
there was no contractual right to void her policy in the case at bar, she concedes that an
innocent misrepresentation could serve as the basis to void a policy pursuant to
Tennessee Code Annotated section 56-7-103. The text of that statute, which is pivotal to
the resolution of this appeal, reads as follows:
No written or oral misrepresentation or warranty made in the negotiations
of a contract or policy of insurance, or in the application for contract or
policy of insurance, by the insured or in the insured’s behalf, shall be
deemed material or defeat or void the policy or prevent its attaching, unless
the misrepresentation or warranty is made with actual intent to deceive, or
unless the matter represented increases the risk of loss.
Tenn. Code Ann. § 56-7-103.
As we have noted previously, the language of the statute is clearly disjunctive.
State Farm Gen. Ins. Co. v. Wood, 1 S.W.3d 658, 661 (Tenn. Ct. App. 1999). “[T]he
insurer may show either 1) that the misrepresentation was made with the intent to
deceive, or 2) that the matter represented increased the risk of loss.” Id. (citations
omitted). In this appeal, we are only concerned with the second part of the statute; at oral
argument, counsel for Tennessee Farmers conceded that his client’s motion for summary
judgment was not predicated on the existence of an intentional misrepresentation. Our
inquiry is therefore limited to whether Ms. Conley misrepresented a matter on her
application for insurance, and if so, whether the matter represented increased the risk of
loss for Tennessee Farmers.
Although Ms. Conley contests the matter on appeal, the record reveals no genuine
issue as to whether her insurance application misrepresented the fact that she previously
had a property in foreclosure. As noted earlier, the undisputed facts reveal that (a) she
4
We would further note that the application for insurance signed by Ms. Conley recited as
follows: “I . . . understand that any misrepresentations or failure to complete all questions truthfully and
fully will void this insurance.” (emphasis added).
-5-
had owned Mississippi property with her former husband and (b) that the Mississippi
property was transferred to US Bank National Association in 2008 as the result of a
foreclosure. Even Ms. Conley seems to relent to the impact that these facts have on the
truth/falsity of her insurance application answer. Indeed, notwithstanding multiple
arguments as to why the answer on her insurance application was not factually incorrect,
we observe the following passage from her brief’s “Statement of the Case”: “In this case,
the alleged misrepresentation was Ms. Conley’s ‘no’ answer in 2010 to the insurance
application’s question ‘Ever had any property in foreclosure?’. There is a technical
problem with her answer because a house was foreclosed on in 2008 that Ms. Conley did
own a partial interest in[.]” (emphasis added) This was more than a “technical problem.”
The answer was factually incorrect. The contention that her insurance application did not
contain a false assertion is simply without merit, and we reject her various arguments to
the contrary.
Returning to the statute mentioned above, however, it should be evident that
insurers are not given carte blanche to void a policy upon the establishment of a
misrepresentation. Assuming it is not accompanied by an actual intent to deceive, the
matter represented must increase the risk of loss. See Tenn. Code Ann. § 56-7-103. In
this appeal, this “risk of loss” question is the primary issue before us. Did the matter
represented on Ms. Conley’s insurance application increase the risk of loss for Tennessee
Farmers?
Whether a misrepresentation increases the risk of loss within the meaning of the
statute is a question of law. Sine v. Tenn. Farmers Mut. Ins. Co., 861 S.W.2d 838, 839
(Tenn. Ct. App. 1993) (citation omitted). Accordingly, a trial court’s determination on
the risk of loss issue is not entitled to a presumption of correctness on appeal. Smith v.
Tenn. Farmers Life Reassurance Co., 210 S.W.3d 584, 589 (Tenn. Ct. App. 2006). It is
well-settled law that a misrepresentation is deemed to increase the risk of loss “when it is
of such importance that it ‘naturally and reasonably influences the judgment of the
insuror in making the contract.’” Sine, 861 S.W.2d at 839 (quoting Seaton v. Nat’l
Grange Mut. Ins. Co., 732 S.W.2d 288, 288-89 (Tenn. Ct. App. 1987)). In explaining the
relevant considerations surrounding this inquiry, we have previously noted as follows:
Tenn. Code Ann. § 56-7-103 authorizes an insurance company to
deny a claim if the insured obtains the policy after misrepresenting a matter
that increased the company’s risk of loss. A misrepresentation in an
application for insurance increases the insurance company’s risk of loss if it
naturally and reasonably influences the judgment of the insurer in making
the contract. It need not involve a hazard that actually produced the loss in
question.
The courts may use the questions an insurance company asks on its
application to determine the types of conditions or circumstances that the
-6-
insurance company considers relevant to its risk of loss. Additionally, the
courts frequently rely on the testimony of insurance company
representatives to establish how truthful answers by the proposed insured
would have affected the amount of the premium or the company’s decision
to issue the policy. A finding that the insurer would not have issued the
policy had the truth been disclosed is unnecessary; a showing that the
insurer was denied information that it, in good faith, sought and deemed
necessary to an honest appraisal of insurability is sufficient to establish the
grounds for an increased risk of loss.
Smith, 210 S.W.3d at 590 (emphasis added) (internal citations omitted).
A helpful illustration of these principles is found in this Court’s decision in
Tennessee Farmers Mutual Insurance Co. v. Farrar, 337 S.W.3d 829 (Tenn. Ct. App.
2009). In Farrar, the insured’s house was damaged by a fire. Id. at 832. Although a
claim was filed with the insurer, coverage was denied based upon a misrepresentation on
the insured’s insurance application. Id. at 831-32. The application for homeowners’
insurance had specifically asked the insured whether any other party had an ownership
interest in the property, and the insured had answered this question in the negative. Id. at
832. However, as it turns out, another individual, one Gary Vollheim, had a life estate in
the property at the time the insurance application was signed. Id. In concluding that this
misrepresentation increased the insurer’s risk of loss under Tennessee Code Annotated
section 56-7-103, this Court noted as follows:
The [insurance company’s] witnesses clearly demonstrated that had Gary
Vollheim’s life estate been known, he would have been required to
complete a form entitled “Additional Named Insured Application for
Insurance” and the form would have been submitted to the [insurance
company’s] home office for evaluation. Mr. Vollheim is dead and we
cannot speculate as to what additional information the Company might
have obtained had he filled out the form. The point, however, is not what
he might have answered; the point is that because the life estate was not
disclosed, the [insurance company] never had an opportunity to ask him
questions so it might evaluate the risk associated with the dual ownership
interests of the Claimant and Mr. Vollheim.
Id. at 836.
What remains important is whether the insurer was denied information that it
sought in good faith and deemed necessary to an honest appraisal of insurability. Smith,
210 S.W.3d at 590. Again, if it was denied such information, an increased risk of loss
within the meaning of Tennessee Code Annotated section 56-7-103 has been established.
Id. (citations omitted).
-7-
Here, evidence submitted at summary judgment indicated that Tennessee Farmers
asks about past foreclosures in order to seek information about an applicant’s financial
stability. Ms. Conley did not dispute that this is the purpose of Tennessee Farmers’
question concerning prior foreclosures, nor did she dispute that the question is asked with
the expectation for a truthful answer in order that more questions can be asked if needed.
Moreover, Ms. Conley did not disagree with Tennessee Farmers’ contention that the
information concerning prior foreclosures is sought in good faith.
Like Ms. Conley, we also agree that Tennessee Farmers seeks the information
about prior foreclosures in good faith. Gauging an applicant’s history of past
foreclosures can assist the insurer in determining if it should inquire further as to whether
that party will be financially capable of making premium payments or maintaining the
property. It thus seems apparent to us that not accurately answering Tennessee Farmers’
question concerning prior foreclosures increased the risk of loss because Tennessee
Farmers was “denied information that it, in good faith, sought and deemed necessary to
an honest appraisal of insurability.” Id. (citations omitted). Indeed, we are of the opinion
that the knowledge that Ms. Conley previously had property in foreclosure would
“naturally and reasonably” affect the judgment of Tennessee Farmers. See Sine, 861
S.W.2d at 839 (quoting Seaton, 732 S.W.2d at 288-89) (“A misrepresentation increases
the risk of loss when it is of such importance that it ‘naturally and reasonably influences
the judgment of the insuror in making the contract.’”). As we have noted, there is no
dispute that the question regarding prior foreclosures is asked with the expectation for a
truthful answer and that further questions can be asked if needed. Had Tennessee
Farmers been informed of the prior foreclosure, it would have been able to ask questions
to explore and assess the risks associated therewith.
According to Ms. Conley, there was no increased risk of loss to Tennessee
Farmers because she was not on the loan associated with the Mississippi property that
went into foreclosure. By referencing this fact and by citing to Johnson v. State Farm
Life Insurance Co., 633 S.W.2d 484 (Tenn. Ct. App. 1981), Ms. Conley argues that an
insurer’s good faith practice to seek information will create a rebuttable presumption that
nondisclosure of that information increased the risk of loss. According to Ms. Conley,
she rebutted that presumption by presenting proof of her status as a non-borrower on the
Mississippi property. In her view, “her undisclosed foreclosure did not – and could not –
increase Defendant’s risk in any manner.”
As Tennessee Farmers has observed in its appellate brief, Johnson does not
contain any discussion of the rebuttable presumption test envisioned by Ms. Conley.
Moreover, the cases interpreting Tennessee Code Annotated section 56-7-103 clearly
indicate that a risk of loss is sufficiently established when the insurer is denied
information that it in good faith wanted to obtain for an honest appraisal. See id. at 488
(“It is only necessary to determine that the misrepresentation was sufficient to deny the
insurer information which they, in good faith, sought to discover, and which they must
-8-
have deemed necessary to an honest appraisal of insurability.”). Here, Ms. Conley did
not question that Tennessee Farmers sought information about prior foreclosures in good
faith, and although she may have not been responsible for the loan associated with the
Mississippi property, the fact remains that Tennessee Farmers was never given the
opportunity to ask questions to evaluate the risks associated with a disclosed foreclosure.
See Farrar, 337 S.W.3d at 836 (“The point, however, is not what he might have
answered; the point is that because the life estate was not disclosed, the Company never
had an opportunity to ask him questions so it might evaluate the risk associated with the
dual ownership interests of the Claimant and Mr. Vollheim.”). By not disclosing the
event of foreclosure, Ms. Conley did not afford Tennessee Farmers even a minimum
opportunity to investigate the circumstances attendant to her ownership of the Mississippi
property and those surrounding the property’s foreclosure. Had the fact of a prior
foreclosure been disclosed, Tennessee Farmers would have been able to explore the risks
that are implicated by foreclosures, and it would have been able to assess the actions Ms.
Conley had taken, or failed to take, to allow the Mississippi property to go into
foreclosure.5
Through the misrepresentation on her application, however, Ms. Conley increased
the risk of loss within the meaning of Tennessee Code Annotated section 56-7-103.
Knowledge that she previously had property in foreclosure would “naturally and
reasonably” affect the judgment of the insurer, because as we have noted, “[i]t is only
necessary to determine that the misrepresentation was sufficient to deny the insurer
information which they, in good faith, sought to discover, and which they must have
deemed necessary to an honest appraisal of insurability.” Johnson, 633 S.W.2d at 488.
Here, Ms. Conley does not dispute that Tennessee Farmers sought the information
concerning prior foreclosures in good faith. In view of the above discussion, we
accordingly affirm the trial court’s judgment on this issue and turn our attention to the
remaining matters raised on appeal.
Remaining Issues
Attorney’s Memorandum
During the trial court proceedings, Ms. Conley sought to discover a document
prepared by Tennessee Farmers’ attorney. Although she moved to compel production of
this document, she was met with resistance. In support of its opposition to Ms. Conley’s
5
Tennessee Farmers’ inquiry into a disclosed foreclosure could have, among other things, cast
light onto concerns related to Ms. Conley’s financial condition. Although Ms. Conley places much
emphasis in this appeal that she had no responsibility for the loan on the Mississippi property, it should be
noted that in her deposition testimony, she stated that she understood that she could not be on the
mortgage loan for the Mississippi property because of poor credit. This is something that Tennessee
Farmers could have uncovered and considered in exploring the risks associated with a disclosed
foreclosure.
-9-
motion to compel, Tennessee Farmers maintained that the sought-after document was
protected by the attorney-client privilege and the work-product doctrine. The trial court
eventually denied Ms. Conley’s motion to compel.
On appeal, Ms. Conley asserts that the trial court’s ruling on this issue was in
error. Her brief includes some argument as to why the requested attorney memorandum
should not be legally protected by the attorney-client privilege, and to a lesser degree, by
the work-product doctrine, but there does not appear to be a clearly developed argument
as to why the requested document itself is relevant to any of Ms. Conley’s claims. As
such, even assuming that we agreed that the attorney-client privilege or work-product
doctrine otherwise did not apply,6 it is unclear on what basis there is reversible error in
excluding discovery access to the document. In her brief, Ms. Conley simply
conclusorily asserts that she “demonstrated through [her motions to compel production]
why the attorney’s memorandum was necessary,” but again, there is no clearly developed
explanation as to this point on appeal, at least insofar as we are able to discern.7 “It is not
the role of the courts, trial or appellate, to research or construct a litigant’s case or
arguments for him or her, and where a party fails to develop an argument in support of
his or her contention or merely constructs a skeletal argument, the issue is waived.”
Sneed v. Bd. of Prof’l Responsibility, 301 S.W.3d 603, 615 (Tenn. 2010).
6
We observe that the trial court’s order denying Ms. Conley’s motion to compel does not
specifically cite the attorney-client privilege or the work-product doctrine as a basis for its denial. Thus,
Ms. Conley’s stated issue—whether the trial court erred when it ruled that the document was protected
from discovery by the attorney-client privilege—technically seeks redress from a specific ruling not
found in the order she challenges.
7
We would further note that in places where a kernel of an argument appears to be included
concerning the need for the document, there are no citations to the record to substantiate the contentions
made. For example, in arguing that it would be “unfair” to allow Tennessee Farmers to “shield” the
document, Ms. Conley’s brief states that Tennessee Farmers justified and defended its denial letter by
invoking the attorney’s document. No citations to the record are offered in support of this proposition.
There is a similar failure to cite to the record concerning other asserted facts offered in support of Ms.
Conley’s argument about the inapplicability of the attorney-client privilege. For instance, in claiming that
no privilege exists, Ms. Conley’s brief references testimony of a “Mr. Caldwell.” The brief itself provides
no clarification about the identity of Mr. Caldwell, and there is no accompanying record reference
specifically signaling where this testimony may be found. Similarly, in claiming that the attorney-client
privilege was waived, Ms. Conley relies on “Defendant’s testimony.” No record references are given
concerning where such “Defendant’s testimony” supporting a finding of waiver can be found. The failure
to provide appropriate record references on these matters also supports a finding of waiver on appeal. See
Clayton v. Herron, No. M2014-01497-COA-R3-CV, 2015 WL 757240, at *3 (Tenn. Ct. App. Feb. 20,
2015) (citations omitted) (noting that the failure to make appropriate references to the record and to cite
relevant authority in the argument section of a brief as required by Rule 27(a)(7) of the Tennessee Rules
of Appellate Procedure constitutes a waiver of the issue); see also Tenn. Ct. App. R. 6 (requiring that
written argument shall contain “[a] statement of each determinative fact relied upon with citation to the
record where evidence of each such fact may be found”).
- 10 -
Regardless, we note that the argument found among the trial court papers is
unavailing. Ms. Conley argued to the trial court that it was imperative to obtain the
attorney’s document in order to prove that the denial of her insurance claim was reckless.
She noted that the Tennessee Farmers employee who sent the claim denial letter had
learned about the falsity of her application answer through the attorney’s document. It is
unclear to us how Ms. Conley can maintain that the denial of her claim was “reckless”;
Tennessee Farmers cannot be considered reckless for denying her claim on account of her
insurance application answer regarding prior foreclosures because there was no error in
concluding that her answer was a misrepresentation. As we have already noted, the
answer on Ms. Conley’s application for insurance was factually incorrect.
Racial discrimination and extortion claims
In her brief, Ms. Conley complains that the racial discrimination claim set forth at
paragraphs 15 and 21 of her amended complaint was erroneously dismissed. In support
of this grievance, she argues that the claim was not a specific subject of Tennessee
Farmers’ motion for summary judgment. Although it does appear to be the case that
Tennessee Farmers never specifically moved for summary judgment vis-à-vis the
asserted racial discrimination claim, the trial court evidently reasoned that dismissal of
the claim should legally follow from its conclusion on the risk of loss issue. In its order
granting summary judgment, the trial court stated: “[B]ecause the policy, being voided
ab initio, as though it never existed, the allegations of racial discrimination should also be
dismissed.” For the reasons stated below, we will not disturb the trial court’s dismissal of
the racial discrimination claim at summary judgment but affirm it on other grounds. 8 See
Hill v. Lamberth, 73 S.W.3d 131, 136 (Tenn. Ct. App. 2001) (noting that this Court is
permitted to affirm dismissal on grounds different than those cited by the trial court).
The dismissal of the asserted racial discrimination claim should be affirmed
because the claim lacks merit as a matter of law. Paragraphs 15 and 21 of the amended
complaint allege that Tennessee Farmers committed “an act of racial discrimination in
violation of the United States and Tennessee constitutions.” We would note that the
amended complaint does not separately raise any discrimination claims based upon
alleged violations of federal or state legislation. Ms. Conley’s attempt to hold Tennessee
Farmers liable for an alleged constitutional violation is legally infirm because Tennessee
Farmers is not a governmental entity. “It is well-settled that constitutional guarantees
restrain government conduct and generally do not restrain the conduct of private
individuals.” Stein v. Davidson Hotel Co., 945 S.W.2d 714, 718 (Tenn. 1997) (citations
omitted); see also Cagle v. Cass, No. W2001-00760-COA-R3-CV, 2001 WL 792644, at
8
We express no opinion regarding the specific reasoning adopted by the trial court in dismissing
the claim, nor do we express any opinion about the specific bases for dismissal argued by Tennessee
Farmers on appeal.
- 11 -
*3 (Tenn. Ct. App. July 6, 2001) (noting that because the alleged violator was not an
employee of the state or federal government, nor could be said to be a state actor, he was
incapable of violating the adverse party’s constitutional rights).9
Similarly, the asserted extortion claim fails for lack of legal merit. We note that at
oral argument, Ms. Conley’s counsel acknowledged that he had found no Tennessee
authority recognizing a civil cause of action for extortion. Neither have we. See Perry v.
Conley, No. 02A019812CV00369, 1999 WL 270430, at *4 (Tenn. Ct. App. May 5, 1999)
(“We know of no statutory or common law authority-except in states where statutes
provide for civil penalties for the crime of extortion-which would allow Perry to recover
damages for ‘extortion.’”); In re Prebul, No. 1:11-CV-214, 2012 WL 5997927, at *6
(E.D. Tenn. Nov. 30, 2012) (“[T]here is no tort of extortion recognized in Tennesee.”).
Accordingly, we affirm the dismissal of Ms. Conley’s extortion claim.
Ms. Conley’s Issue #7
After Ms. Conley submitted her initial appellate brief, which raised six issues for
our review, she filed a motion requesting permission to file a supplement to her brief,
stating that she had inadvertently failed to include a seventh issue in her original appellate
submission. We granted the motion after giving it proper consideration, and on
December 5, 2017, a supplemental appellate brief raising “Issue #7” was filed. Taken
verbatim from Ms. Conley’s supplemental brief, Issue #7 is as follows:
Did the Circuit Court err when it ruled that even though Defendant voided
Plaintiff’s policy for an impermissible reason, Defendant can shield itself
from liability by subsequently citing a different and permissible reason to
void the policy even though Defendant would not have originally voided
the policy for that reason?
As an initial matter, we observe that Ms. Conley’s supplemental brief contains no citation
to any legal authorities supporting her position. This is sufficient to result in a waiver of
her issue. See Belardo v. Belardo, No. M2012-02598-COA-R3-CV, 2013 WL 5925888,
at *13 (Tenn. Ct. App. Nov. 1, 2013) (citations omitted) (“This Court has repeatedly held
that the failure to include citation to the record or to appropriate supporting authority in
the argument section of the brief is a waiver of the issue on appeal.”).
The issue of waiver notwithstanding, Issue #7 appears to be predicated on the
faulty premise that a permissible reason for voiding the policy was not originally
provided by Tennessee Farmers. As explained herein, it was permissible to deny Ms.
9
We would additionally note that Tennessee has not recognized any implied cause of action for
damages based upon violations of the Tennessee Constitution. Bowden Bldg. Corp. v. Tenn. Real Estate
Comm’n, 15 S.W.3d 434, 446 (Tenn. Ct. App. 1999) (citations omitted).
- 12 -
Conley’s claim on the ground that her insurance application contained a
misrepresentation that increased the risk of loss, and the denial letter sent to Ms. Conley
clearly relied on this basis.10
CONCLUSION
For the reasons stated herein, the judgment of the trial court is affirmed. This case
is remanded to the trial court for such further proceedings as may be necessary and are
consistent with this Opinion.
_________________________________
ARNOLD B. GOLDIN, JUDGE
10
Additional issues were raised by Ms. Conley, with the Court’s permission, in a supplemental
brief filed following oral argument. The first two of these additional issues, which essentially re-argue
the same issue initially raised in the first supplemental brief, specifically challenge the trial court’s
decision to deny a motion to reconsider that was filed by Ms. Conley following the grant of summary
judgment. We find no error with respect to this mater. As previously noted, it was permissible to deny
Ms. Conley’s insurance claim on the ground that her insurance application contained a misrepresentation
that increased the risk of loss; the denial letter sent to Ms. Conley clearly relied on this basis. The other
issue raised in Ms. Conley’s second supplemental brief once again challenges the dismissal of her
asserted extortion claim. As we have already noted, we know of no Tennessee authority recognizing a
civil cause of action for extortion.
- 13 -
| {
"pile_set_name": "FreeLaw"
} |
359 F.Supp. 1137 (1972)
Susan POYNTER et al., Plaintiffs,
v.
Walter DREVDAHL et al., Defendants.
File M-31-71 CA.
United States District Court, W. D. Michigan N. D. at Marquette.
January 11, 1972.
*1138 William S. Easton, U. P. Legal Services, Inc., Marquette, Mich., for plaintiffs.
Charles L. Burleigh, Jr., Miller, Canfield, Paddock & Stone, Detroit, Mich., for defendants.
OPINION
ENGEL, District Judge.
This case presents a controversy concerning the constitutionality of certain parietal regulations currently in force at Northern Michigan University.
Plaintiffs instituted this class action as students of Northern Michigan University against the named defendants as members of the Board of Control of that University. Northern is a constitutional institution of higher learning.[1] The defendants are members of a board appointed by the Governor of Michigan and have general supervision of the University.[2] Over the years, undergraduate enrollments have increased at Northern and to keep pace with this influx, dormitories were constructed to meet student housing requirements.[3] On August 15, 1970, the defendant members of the Board of Control adopted the following housing requirement:
"Housing Requirement: (Penalty: not less than warning probation; not more than financial restitution for the amount of room and board for the period of violation and/or expulsion) All single undergraduate students shall live in University residence halls while enrolled for classes at Northern; provided, however, that this requirement shall not apply to those undergraduates who are:
1. 23 years of age or older on or before the last official day of registration for the Fall Semester,
or who are
2. residing with parents or legal guardian in the greater Marquette area (defined as those areas included in the Marquette telephone directory listings)."
In conjunction with this requirement, the "Off-Campus Housing Committee" was established and given the power to exempt students from the general housing requirement on the basis of the following criteria:
"CRITERIA IN GENERAL PRIORITY ORDER:
Medical: Conditions which are verified by the University Health Center or Counseling Center and which it is agreed would most likely impair the student's health if he were required to live in University residence halls.
Financial: Circumstances which would prevent a student from attending Northern for financial reasons if required to live on campus. Preference will be given to seniors and then juniors.
Relative: Circumstances which would financially hinder a student from attending Northern without living with a relative who is contributing at least in part to their room and board expenses. The relative must be a brother, sister, grandparent, aunt or uncle.
Commuter: Circumstances which would require the student to live with his parents or legal guardians outside the greater Marquette area.
*1139 Other situations which are not covered by any of the above will be considered depending on the individual circumstances of the case."
Plaintiffs seek to have the court declare invalid and enjoin enforcement of the cited University housing requirement and supporting criteria on the grounds that they are violative of the rights of plaintiffs and the class they represent under the First, Fifth, Ninth and Fourteenth Amendments of the United States Constitution, the Civil Rights Act of 1964, and the Department of Housing and Urban Development Rules and Regulations. Plaintiffs claim that the contested regulations violate their constitutional rights of travel, education, privacy, association, procedural due process and equal protection of the law.
Without dismissing their other claims and arguments, the position of the plaintiffs is well summarized at page two of their brief:
"The reason for the housing requirement is at the very heart of Plaintiffs' complaint of constitutional violation. If the reason is completely fiscal to protect the University's fiscal obligations, then under the authority of Mollere v. Southeastern Louisiana College, 304 F.Supp. 826 (E.D.La. 1969) that housing requirement violates the Fourteenth Amendment. If, on the other hand, the University has and can now prove sufficient educational value for the requirement, under the analysis of the Pratz case, that requirement may not be constitutionally offensive."
Plaintiffs basically claim that they have a right to prove upon trial of this case that the real reason for the housing requirement is to protect the University's fiscal obligation and that they have a right to trial on the issue of whether there is sufficient educational value to warrant such a rule. Corollary thereto, they claim the right to judgment and relief if such sufficient educational value is not shown on the basis that Mollere, supra, makes such rules otherwise arbitrary, discriminatory, and violative of plaintiffs' federally guaranteed constitutional rights.
Defendants have moved for summary judgment under F.R.Civ.P. 56 on the basis that "there is no genuine issue as to any material fact herein and Defendants are entitled to judgment as a matter of law."[4]
It is not the function of this court to decide whether in its own judgment the regulations and policy complained of are wise or unwise, or whether there is a better way of handling the question of student housing, or who may have the edge in any philosophical differences which may exist. The sole question for decision is whether there has been a violation of rights guaranteed under the Constitution of the United States, thus giving rise to the exercise of jurisdiction by this court under 28 U.S.C. §§ 1343(3) and (4), 2201 and 2202, and 42 U.S.C. § 1983.
The summary judgment procedure serves a beneficial purpose in enabling courts to dispose of many cases without the time-consuming and expensive trial process where the undisputed and true facts establish, as a matter of law, that no trial could result in a judgment favorable to the plaintiff.
Common sense and existing case law, however, dictate that "summary judgment should be granted with caution and only where the movant has established the nonexistence of any genuine issue of fact. That showing made must be construed in the light most favorable to the party opposing the summary judgment and that party should be accorded all favorable inferences that may be deduced from the showing. The reason for this being that a party should not be deprived *1140 of an adequate opportunity to fully develop his case by witnesses in a trial where the issues involved make such procedure the appropriate one." Rogers v. Peabody Coal Co., 342 F.2d 749, 751 (6th Cir. 1965).
Thus, the court must examine the pleadings and, in this case, the respective affidavits submitted on behalf of the parties to determine whether there exists a genuine issue as to any material fact and if there is, the motion must be denied.[5]
In opposition to the motion, the plaintiffs set forth four specific factual allegations on their brief which are not rebutted by proof submitted on behalf of defendants. These allegations are as follows:
"(1) That some of the class of Plaintiffs have applied for off-campus housing and have been denied exceptions by the Off-Campus Housing Committee. (Para. 4)
(2) The reasons given Plaintiffs by Defendants for the housing requirement was to enable them to meet their bond obligation. (Para. 7)
(3) That it is a financial hardship for some of the class to pay the University room and board when they could obtain less expensive living accommodations off-campus. (Para. 9)
(4) That the living areas in the rooms in which students have been housed, at three to a room, is approximately 1,300 cubic feet. (Para. 24)"
The above allegations are generally supported by affidavits filed by plaintiff students and those affidavits are not specifically controverted by defendants. In fact, defendants have stipulated as to (4) above.
On the other hand, the defendants have also submitted affidavits which are not specifically controverted by any opposing affidavits filed by plaintiffs. The affidavit of John N. Gardner, Assistant Director of Housing of Northern Michigan University, states that a total of 530 students applied for permission to live off campus at the beginning of the 1971 Fall semester. Of these applications 431 were granted and 99 denied. Of the 431 applications approved, financial reasons accounted for 133; medical, 66; personal, 55; relative, 34; commuter, 63; marriage, 44; part-time, 30, and special work arrangement, 6 students. On the basis of age, two students of the age of 17 years were granted permission; 16 of the age of 18 years; 80 of the age of 19 years; 105 of the age of 20 years; 109 of the age of 21 years; 91 of the age of 22 years. By class, the number of students approved for off campus housing ranged from 35 for freshmen to 182 for seniors. It was Mr. Gardner's affidavit further that of those who had requested permission, 20 were, as of October 15, 1971, unable to find suitable living accommodations in the Marquette area and thus were still living in University residence halls. The specific names of those students were also attached to the affidavit.
The affidavit of Dr. Allan L. Niemi, Vice President for Student Affairs of the University, alleges that there are twelve student dormitories located on the Northern Michigan University campus, opened for occupancy during the period from and including 1949 to 1967. His affidavit further contains enrollment statistics for the University which discloses a rise in enrollment from 1,022 in September 1949 to 7,356 in September 1970. It further alleges that "prior to September 1967, student housing facilities at Northern Michigan University were inadequate to keep pace with the demand."
Paragraph 3 of Dr. Niemi's affidavit alleges that
"in constructing and operating its campus dormitories, it has been the *1141 policy of Northern Michigan University to provide reasonably priced living facilities convenient to campus for as much of the student population as possible, and to create an environment in which students can live and work together in a community of scholarship."
Dr. Niemi's affidavit further alleges that although the University permits undergraduate students to live with a parent or guardian in the greater Marquette area, this policy has not been extended to allow students to live with married brothers and sisters for it would be less likely that the student would receive adequate living and working accommodations.
With respect to the policy exempting students above the age of 23 from the parietal rules during the academic year 1970 to 1971, Dr. Niemi cites as reasons that the proportion of the student body under 23 years of age is approximately equal to the capacity of the University's campus dormitories, and that more mature students, such as returning veterans and housewives continuing their education, will thereby be excused from living in the dormitories.
The well pleaded facts in the complaint, the four specific factual allegations referred to above and the uncontroverted allegations in the affidavits submitted by plaintiff must be accepted as true and any inferences arising from them must be construed in plaintiffs' favor. At the same time, the court is entitled under the Rule to accept as also true those uncontroverted factual allegations submitted on behalf of defendants by Mr. Gardner and Dr. Niemi.
While many authorities are cited under the general constitutional issues raised in the pleadings, case law on the specific subject focuses upon two federal decisions, both arising out of the State of Louisiana. Plaintiffs claim support for their position in Mollere v. Southeastern Louisiana College, supra. In that case the District Judge ruled that a regulation making dormitory residence mandatory for all women students under age 21 was violative of those students' rights where the sole reason advanced for the regulation was to enable the University to meet financial obligations that arose out of the construction of the dormitories.
Defendants place reliance upon the majority decision of a three-judge panel in Pratz v. Louisiana Polytechnic Institute, 316 F.Supp. 872 (1970). There summary judgment in favor of defendant college was rendered and on appeal, the college's motion for affirmance was granted by the United States Supreme Court without comment, 401 U.S. 1004, 91 S.Ct. 1252, 28 L.Ed.2d 541 (1971). Defendants here claim that the summary affirmance makes the ruling in Pratz binding upon this court. While closely analogous in many aspects with the facts of this case, the court determines that the summary affirmance of Pratz, though highly persuasive, is not binding upon this court for two reasons:
1. The defendant's arguments in Pratz were much more fully supported by uncontroverted affidavits than is the case here.
2. The absence of any written opinion accompanying the affirmance leaves uncertain the exact basis upon which the decision to affirm was based. This is particularly true when the motion itself was based upon Pyeatte v. Board of Regents, 102 F.Supp. 407 (W.D.Okl.1951), affirmed 342 U.S. 936, 72 S.Ct. 567, 96 L.Ed. 696 (1952), which primarily ruled that such parietal rules did not violate the constitutional rights of a non-student owner of private housing, an issue which does not exist here.
The authority of a state-supported institution of higher education to construct dormitories for student housing is not challenged by plaintiffs, nor can it be. M.S.A. § 15.1120(1), M.C.L. A. § 390.551, provides for the establishment of boards of control. The statutory authority in a board of control to erect residence halls and to obligate itself for the repayment thereof solely out of income and revenues therefrom is specific, M.S.A. § 15.1120(8), M.C.L.A. § 390.558. The Board's powers are broad and include, but are not limited to, "all powers customarily exercised by *1142 the governing board of a college or university." M.S.A. § 15.1120(4), M.C.L.A. § 390.554. So much is acknowledged in plaintiffs' complaint (paragraphs 5 and 6, p. 7).
Consideration must begin with a presumption of validity attaching to actions of a board, acting under statutory authority and buttressed by the Constitution of the State of Michigan (1963), Article VIII, Section 6. Pyeatte, supra, 102 F.Supp. p. 415. The affirmative breadth of constitutional power so granted is further amplified in Article VIII, Section 1:
"Religion, morality and knowledge being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged."
Thus, the Constitution of Michigan recognizes a policy of encouraging not only education itself, but "the means of education" and relates this by Article VIII, Sections 4 and 6 to state institutions of higher learning, specifically including Northern Michigan University.
The broad power of regulation, the specific authority to erect residence halls, and the declared policy of encouraging the means of education all indicate a public policy consistent with the general residence requirement here scrutinized. It is not altogether necessary for a court to have before it extensive affidavits in order to conclude with the majority in Pratz, 316 F.Supp. at page 880, that:
". . . . there is more to learning than simply sitting in a classroom and that the living and learning centers, afforded by dormitory, eating, student life and other similar facilities are just as important as the classroom instruction itself. . . . ."
If, however, specific proof is required on the point as related to Northern Michigan University, there is the uncontroverted affidavit of Dr. Niemi, setting forth the policy in constructing and operating the dormitories:
1) reasonably priced living facilities;
2) convenient to the campus;
3) for as much of the student population as possible;
4) to create an environment in which students can live and work together in a community of scholarship.
Thus, the purposes enumerated above apply directly to the constitutionally encouraged "means" of education and are valid. Counsel for plaintiff, during oral argument before the court on December 6, 1971 conceded that there may be some educational benefit from dormitory living. Need the court therefore go further? Are plaintiffs entitled to a full trial at which they can discount and dispute the claim of educational value of parietal rules and prove that the one genuine motive for the rule is to pay off the debt? If the policy had no relationship whatever to the legitimate ends as stated, and if the sole purpose were to achieve a forbidden end, then further inquiry might be warranted. The court, however, sees nothing sinister in the interest of a state-supported university in insuring its mandatory obligation to honor its bonded indebtedness. That, too, is a legitimate end. An expensive and time-consuming trial devoted to probing the collective conscious or subconscious intent of the governing board, therefore, could not affect the outcome where the purpose in so doing could be only to establish that another legitimate purpose also existed.
Having concluded, therefore, that the Board of Control has the authority to erect residence halls and to establish parietal rules and requirements, the issues then turn upon an examination of those rules in the light of the plaintiffs' several claims that they are violative of their constitutional rights of travel, education, privacy, association, procedural due process, and equal protection of the law.
With respect to the claimed unconstitutionality of the regulation and its supporting criteria, Pratz is directly in point on all but two features mentioned below.
An examination of the housing requirement and supporting criteria is *1143 fully satisfying that, as applied, they are neither arbitrary, capricious, nor constitutionally discriminating. The arguments to the contrary are fully covered in Pratz which the court conceives to be a proper statement of the law on the several constitutional questions raised. For this reason, they need not be specifically repeated here.
The housing priorities established generally recognize that there is greater need for such parietal rules in the case of younger students. While some might well doubt an observation that wisdom and responsibility increase with age, none would claim that maturation has ceased within the age standards established. It is not necessary for the court to approve or endorse the particular exceptions provided; it is sufficient to say that there is a rational basis in human experience for the classification thus made. Nor does the method of determining exception by the Off-Campus Housing Committee violate procedural due process, see Pratz, supra, pp. 882-883.
Contained in plaintiffs' complaint (¶ 18, page 10) is a claim not covered by Pratz:
"18. That among the exceptions, not shown on said off-campus housing application form, but as announced in Defendants' Student Housing Brochure, is the policy that fraternity members are permitted to reside in fraternity houses, not university residence halls, even though they are not 23 years of age, and that obviously said exception discriminates against the female Plaintiffs who have no such option."
While this issue was not covered in plaintiffs' brief or oral argument, a ruling from the court is necessary to a full adjudication. The issue thus raised must be considered in the light of the uncontroverted facts contained in ¶ 4 of Dr. Niemi's deposition:
"4. There are three Greek-letter fraternities at the University which maintain living facilities for undergraduate students, by name: Delta Sigma Phi, Phi Tau Alpha and Lambda Chi Alpha. Permission to maintain such facilities was granted to each organization prior to September, 1967 as a part of the University's on-campus living policy. Since 1967, no Greek-letter organization, fraternity or sorority, has been granted permission to maintain a student living facility, with the exception of organizations already having such a facility in existence."
There is no claim here that prior to September of 1967 the University had banned sororities, so as to lock in thereafter a circumstance which could, arguably at least, amount to discrimination on account of sex. Without getting into the question of the desirability or undesirability of Greek-letter societies and their maintenance of off-campus housing, the Board clearly had the right to eliminate a policy permitting such off-campus housing under the authority discussed earlier. The proper administration of a university necessarily includes flexibility and adaptability to changing circumstances. When policy changes occur, it is not unreasonable to provide against the hardship which may result to those who in good faith may have relied upon a former permissive policy.
"Grandfather clauses" as the policy here might be termed, are of ancient vintage, and where they protect against loss to those who may have relied upon prior laws or regulation, they serve a rational and useful purpose in encouraging orderly change in government to meet new and desirable ends.
The history of American democracy has nearly always been one of compromise in which legitimate ends to be achieved by legislation are made more palatable and thus more possible by due attention to alleviation of hardship caused by the change. That such provisions in federal statutory law are not thereby unconstitutional and are not constitutionally discriminating under the equal protection clause, see United States v. Maryland Savings-Share Insurance *1144 Corp., 400 U.S. 4, 91 S.Ct. 16, 27 L.Ed.2d 4. As Mr. Justice Holmes stated in Missouri, Kansas & Texas Ry. Co. v. May, 194 U.S. 267, 269, 24 S.Ct. 638, 639, 48 L.Ed. 971:
"When a state legislature has declared that, in its opinion, policy requires a certain measure, its action should not be disturbed by the courts under the 14th Amendment, unless they can see clearly that there is no fair reason for the law that would not require with equal force its extension to others whom it leaves untouched."
The "fair reason" here may be loss of investment in the off-campus housing jeopardized by the new rule. It may be that at the time there were insufficient University-furnished accommodations and the exception provided an acceptable alternative. It may be that experience with the existing fraternity houses satisfied the University that its objective of creating a community of scholarship was already being achieved in those circumstances. It is not necessary to prove that any one reason exists. It is enough that it may, as so clearly indicated throughout the text of Justice Holmes' opinion, supra. Nor can such a policy be said to be discriminatory because of sex, where there is no showing that similar Greek-letter or societies for females ever existed, or were ever denied permission to establish off-campus residences, or that any of the plaintiffs or the class they represent were so adversely affected. The court knows of no construction of the equal protection clause which requires expansion of a classification which is being phased out under a "grandfather clause". If there is, the pleadings and proof show no such basis here.
Finally, plaintiffs have objected to the submission to the court subsequent to the hearing in Marquette of a copy of the defendants' brief in Pratz and accompanying summary of affidavits. To the extent that defendants seek to incorporate the general factual allegations of those affidavits as substantive proof to be considered in connection with this case, the objection is well taken. As showing and explaining the background in the Pratz case itself, and thus throwing light upon its meaning, such material is, however, appropriate and of academic interest.
Therefore, on the basis of the foregoing reasons, it is the opinion of the court that defendants' motion for summary judgment should be and the same is hereby granted.
It is so ordered.
NOTES
[1] Michigan Constitution of 1963 Art. VIII, §§ 4 and 6.
[2] Michigan Constitution of 1963 Art. VIII, § 6.
[3] Paragraph 2 of affidavit of Allan Niemi, Ph.D., Vice President for Student Affairs.
[4] F.R.C.P. 56(c) provides in part:
"The (summary) judgment sought shall be rendered forthwith if 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."
[5] F.R.C.P. 56(c) provides in part:
"When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as other provided in this rule, must set forth specific facts showing that there is a genuine issue for trial."
| {
"pile_set_name": "FreeLaw"
} |
453 F.3d 1208
UNITED STATES of America, Plaintiff-Appellee,v.Mateo ESTRADA, Defendant-Appellant.
No. 05-10500.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted April 3, 2006.
Filed July 14, 2006.
1
Tim A. Pori, Law Offices of Tim A. Pori, Vallejo, CA, for the defendant-appellant.
2
Carolyn K. Delaney, Assistant United States Attorney and McGregor W. Scott, United States Attorney, Sacramento, CA, for the appellee.
3
Appeal from the United States District Court for the Eastern District of California; David F. Levi, District Judge, Presiding. D.C. No. CR-03-00247-DFL.
4
Before: NOONAN, Senior Circuit Judge, BYBEE, Circuit Judge, and SCHWARZER,* Senior District Judge.
SCHWARZER, Senior District Judge:
5
Defendant-appellant Mateo Estrada appeals his conviction, after jury trial, of possessing pseudoephedrine knowing, or with reasonable cause to believe, that it would be used to manufacture methamphetamine, in violation of 21 U.S.C. § 841(c)(2). We affirm.
FACTUAL AND PROCEDURAL HISTORY
6
Responding to a report of an accident, a California Highway Patrol (CHP) Officer found an overturned pickup truck with a camper shell on a remote, hilly road in Colusa County. The truck contained 178 pounds of pseudoephedrine pills, as well as 78 gallons of denatured alcohol, a can of acetone, and other paraphernalia suggesting to the officer that the contents were going to be used to make methamphetamine. The CHP officer found Estrada near the overturned truck, conscious but dazed and with a contusion on his forehead.
7
After sending Estrada to the hospital, the CHP towed the truck and performed an inventory search. Following the search, the truck was released back to the towing company. About two months after the crash, the towing company sold the truck at a lien sale.
8
During the inventory search, the CHP found a recent receipt from a Home Depot store for several cans of denatured alcohol. One of the officers reviewed video footage from the Home Depot made at the time of the sale indicated on the receipt. The footage was not clear enough to identify Estrada as the customer, but the customer shown was approximately the same height and stature as Estrada, and was wearing a shirt that appeared to resemble the shirt Estrada was wearing at the time of the accident. Investigators were unable to recover fingerprints from the cans of denatured alcohol in the truck. Fingerprints recovered from a respirator mask and the cardboard boxes holding the pills did not match Estrada's.
9
Estrada moved to dismiss the indictment contending that the government's destruction of the evidentiary value of the truck was in bad faith. The district court denied the motion.
10
At trial the government introduced evidence that in a 1994 seizure of items from a storage locker in San Jose, Estrada's fingerprints had been found on a type of flask used in manufacturing methamphetamine. The flask also had a residue of iodide, which suggested that it had been used to manufacture methamphetamine. Also recovered from the storage locker were large amounts of ephedrine (different from pseudoephedrine, but also used to make methamphetamine). Other than the fingerprints on the flask, there was no evidence linking Estrada to the storage locker. Estrada objected to the admission of this evidence, but the district court overruled the objection with a limiting instruction.
11
The court instructed the jury that the government must prove:
12
First: The defendant knowingly possessed pseudoephedrine; Second: Pseudoephedrine is a listed chemical; [and] Third: The defendant possessed it knowing, or having reasonable cause to believe, that it would be used to manufacture methamphetamine.
13
This instruction tracked the Ninth Circuit Model Jury Instruction — Criminal § 9.23. During deliberations, the jury asked the court: "Can we get any other definition of what it means to knowingly possess pseudoephedrine specifically at the time he had it, or does it mean any substance that can be used to make methamphetamine?" After conferring with counsel, the court gave the following supplemental instruction:
14
The government does not have to prove that the defendant knew that the pills were pseudoephedrine. The government does have to prove beyond a reasonable doubt that the defendant knew, or had reason to know, that the pills would be used to manufacture methamphetamine. The government also has to prove beyond a reasonable doubt that the defendant knew that the pills were in his possession. The government also has to prove beyond a reasonable doubt that the pills were in fact a listed chemical.
15
You may not find the defendant guilty based upon his knowing possession of either the denatured alcohol or the acetone because these are not listed chemicals.
16
The jury returned a guilty verdict. On appeal, Estrada argues that the supplemental jury instruction improperly relieved the government of having to prove that he knew the pills were pseudoephedrine, that there was insufficient evidence to prove he knew the pills were pseudoephedrine, that the loss of the truck's evidentiary value violated his due process rights, and that the district court erred in admitting the evidence of his fingerprints on the flask recovered from the 1994 storage locker seizure.
DISCUSSION
I. SUPPLEMENTAL JURY INSTRUCTION
17
Estrada contends that the supplemental jury instruction was erroneous in failing to require the government to prove that Estrada knew that the substance he possessed was pseudoephedrine. Section 841(c)(2) makes it unlawful for "[a]ny person [to] knowingly or intentionally ... possess[] or distribute[] a listed chemical knowing, or having reasonable cause to believe, that the listed chemical will be used to manufacture a controlled substance." Estrada argues that for a defendant to knowingly possess something he must know what he possessed, in this case pseudoephedrine. The supplemental jury instruction was erroneous, Estrada argues, in telling the jurors that they had to find only that he knew the pills were in his possession, not that he knew they were pseudoephedrine. Estrada does not otherwise challenge the instruction.
18
Whether a jury instruction misstates elements of the crime is a question of law reviewed de novo. United States v. Knapp, 120 F.3d 928, 930 (9th Cir.1997). "[W]here the party fails to object at trial or fails to state distinctly the grounds for the objection, we review only for plain error." United States v. McIver, 186 F.3d 1119, 1130 (9th Cir.1999). Here, the court and counsel engaged in a lengthy conference concerning the text of the supplemental instruction. Counsel for Estrada insisted that the jury would have to find that Estrada knew the pills were pseudoephedrine. The court declined to so instruct but offered counsel the opportunity to research the law overnight. In the end, the court read the instruction to counsel as eventually given; government counsel approved and counsel for Estrada said, "Okay." We therefore review for plain error.
19
We recently interpreted the mens rea requirement of § 841(c)(2) in United States v. Lo, 447 F.3d 1212 (9th Cir.2006). Lo was charged with possession of MDP-2-P, a listed chemical. The court instructed the jury that to find the defendants guilty, the government must prove: "First, that the defendants knowingly possessed MDP-2-P; second, the defendants knowingly possessed it, knowing or having reasonable cause to believe that it would be used to manufacture a controlled substance. It does not matter whether the defendants knew that MDP-2-P was a list chemical." Id. at 1229. On appeal, Lo argued that the instruction was erroneous in that it eliminated the first mens rea requirement; "knowingly," he contended, modified the term "listed chemical" rather than the term "possession." Id.
20
While recognizing that it was not entirely clear grammatically that "knowingly" does not modify both the phrase "possesses or distributes" and "listed chemical," we rejected the argument. We did so for two reasons. First, we distinguished Liparota v. United States, 471 U.S. 419, 421, 105 S.Ct. 2084, 85 L.Ed.2d 434 (1985), requiring proof under an analogous statute that the defendant knew his conduct was unauthorized by law, on the ground that while there the statute contained no mens rea requirement, § 841(c)(2) does contain one. Id. at 1230. Second, we noted that Congress adopted the present version of § 841(c)(2), prohibiting the possession and distribution of listed chemicals, by substituting its text for an earlier version prohibiting only the possession of piperidine knowing that it will be used to manufacture phencyclidine. Id. at 1230-31. We concluded that it would be unreasonable to infer that when Congress included "knowingly," it meant to add an additional element of required proof. "[I]t seems very unlikely," we observed, "that Congress would have chosen to make prosecution more difficult by requiring proof that the defendant knew that the chemical was a listed chemical, while at the same time seeking to expand the scope of prosecution for the possession and distribution of precursor chemicals...." Id. at 1231.
21
Estrada, unlike Lo, does not contend that the government must prove that he knew the pills were a listed chemical. He argues instead that the government must prove that he knew that the pills were pseudoephedrine. Although his argument takes a route different from Lo's, it arrives at the same barrier. The argument would import a second mens rea requirement into the statute: knowledge or reasonable cause to believe that the substance will be used in the manufacture of a controlled substance plus knowledge of the identity of the specific substance possessed.
22
Estrada's argument is foreclosed by Lo. Lo holds that § 841(c) contains only one mens rea requirement and that the term "knowingly" modifies only the phrase "possesses or distributes" and not "listed chemical." What § 841(c) requires the government to prove is (1) that the defendant knew he possessed a substance with knowledge or reasonable cause to believe that the substance would be used to manufacture a controlled substance, and (2) that the substance was in fact a listed chemical. Because we hold that the district court's instruction was correct, we do not reach Estrada's contention that the evidence was insufficient to prove that he knew the pills were pseudoephedrine.
II. DESTRUCTION OF EVIDENCE
23
Although the truck was not destroyed but instead was sold by the towing company, Estrada argues that his due process rights were violated by the government's bad faith destruction of the evidentiary value of the truck. In California v. Trombetta, 467 U.S. 479, 489, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984), the Supreme Court held that for destruction or loss of evidence to constitute a constitutional violation, "[the] evidence must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means." In Arizona v. Youngblood, 488 U.S. 51, 58, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988), the Court further held that where lost or destroyed evidence is deemed to be only potentially exculpatory, as opposed to apparently exculpatory, the defendant must show that the evidence was destroyed in bad faith. We review this claim de novo, but the district court's factual findings are reviewed for clear error. United States v. Hernandez, 109 F.3d 1450, 1454 (9th Cir. 1997).
24
We discern no constitutional violation. As a preliminary matter, it is uncertain whether the truck's evidentiary value was destroyed or lost at all. While unlikely, it is possible that the new owner had not repaired the truck or cleaned out the cab, and Estrada does not appear to have made any effort to track down or contact the new owner. Moreover, the truck itself was not apparently exculpatory evidence. Estrada argues that his initial statements to the police made it clear that the truck was valuable evidence because his story to the police was that he was the passenger in the vehicle, and not the driver. After the crash, the other individual left the scene, leaving Estrada behind. However, even if an analysis of the truck indicated that Estrada was a passenger in and not the driver of the truck, that would not necessarily show that he did not have possession of the pseudoephedrine.
25
Given that the truck was at most only potentially exculpatory evidence, Estrada must show bad faith on the part of the government. Here, there is no such showing, as there is no showing that the government knew or intended for the truck to be sold by the towing company, let alone that the government did so with a malicious intent. There was evidence that the officers called the towing company twice to find out whether the towing company still had the truck, but there was no other discussion between the officers and the towing company. Estrada has not shown a due process violation.
III. ADMISSIBILITY OF THE 1994 FINGERPRINTS
26
Federal Rule of Evidence 404(b) excludes evidence of prior acts when offered to prove that the individual acted in conformity with those prior acts. However, the rule allows admission of prior acts when offered for other purposes, such as to show "proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident."
27
In making admissibility decisions, the court will admit Rule 404(b) evidence if (1) the evidence tends to prove a material point; (2) the prior act is not too remote in time; (3) the evidence is sufficient to support a finding that the defendant committed the other act; and (4) (in cases where knowledge and intent are at issue) the act is similar to the offense charged.
28
United States v. Verduzco, 373 F.3d 1022, 1027 (9th Cir.2004). Estrada challenges admission of the evidence under the first three prongs of this test, arguing that the evidence of his fingerprints on the triple-neck flask from the 1994 storage locker seizure did not prove a material point, that ten years was too remote in time, and that there was insufficient evidence to show that he committed any prior act. We review the district court's decision to admit evidence for abuse of discretion. United States v. Lillard, 354 F.3d 850, 853 (9th Cir.2003).
29
There is no merit in Estrada's argument. The fingerprints do help to prove a material point, because his connection to this prior methamphetamine manufacturing operation tends to show that he knew or had reasonable cause to believe that the pseudoephedrine would be used to make methamphetamine. Courts have allowed Rule 404(b) evidence to be admitted where ten years or longer periods of time have passed. See United States v. Martinez, 182 F.3d 1107, 1110-11 (9th Cir.1999) (ten years); United States v. Ross, 886 F.2d 264, 267 (9th Cir.1989) (thirteen years); United States v. Spillone, 879 F.2d 514, 519 (9th Cir.1989) (ten years). And while the fingerprints on the flask are insufficient to conclusively show that Estrada committed any prior act, the standard for admissibility is only that the evidence is sufficient to "support a finding that the defendant committed the other act." Verduzco, 373 F.3d at 1027; see also United States v. Ogles, 406 F.3d 586, 592 (9th Cir.2005) (stating that "conclusiveness is not the relevant standard"). Here, Estrada was able to argue the sufficiency of the fingerprint in terms of the weight that the jury should give this evidence. The district court also gave a limiting instruction as to this evidence, telling the jurors that they could consider it only as it related to the defendant's intent or knowledge. The district court did not abuse its discretion in admitting this evidence.
CONCLUSION
30
For the reasons stated above, the conviction is AFFIRMED.
Notes:
*
The Honorable William W Schwarzer, Senior United States District Judge for the Northern District of California, sitting by designation
| {
"pile_set_name": "FreeLaw"
} |
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-6390
RAYMOND BILLY SIMS,
Petitioner - Appellant,
versus
EDWARD MURRAY,
Respondent - Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Albert V. Bryan, Jr., Senior
District Judge. (CA-94-393-AVB)
Submitted: July 27, 2005 Decided: August 4, 2005
Before KING, GREGORY and SHEDD, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Raymond Billy Sims, Appellant Pro Se. Thomas Drummond Bagwell,
Assistant Attorney General, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Raymond Billy Sims seeks to appeal from the district
court’s order denying his Fed. R. Civ. P. 60(b) motion in which he
asserted errors in the district court’s June 1994 order denying his
28 U.S.C. § 2254 (2000) petition and July 1995 order denying his
Rule 60(b) motion. Sims also appeals from the district court’s
order denying his motion to amend his Rule 60(b) motion. The
orders are not appealable unless a circuit justice or judge issues
a certificate of appealability. 28 U.S.C. § 2253(c)(1) (2000);
Reid v. Angelone, 369 F.3d 363, 370 (4th Cir. 2004) (applying the
certificate of appealability requirement to appellate review of the
denial of a Fed. R. Civ. P. 60(b) motion). A certificate of
appealability will not issue absent “a substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2) (2000).
A prisoner satisfies this standard by demonstrating that reasonable
jurists would find that the district court’s assessment of his
constitutional claims is debatable or wrong and that any
dispositive procedural rulings by the district court are also
debatable or wrong. See Miller-El v. Cockrell, 537 U.S. 322, 336-
38 (2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000); Rose v.
Lee, 252 F.3d 676, 683-84 (4th Cir. 2001). We have independently
reviewed the record and conclude that Sims has not made the
requisite showing. Accordingly, we deny a certificate of
appealability and dismiss the appeal. We dispense with oral
- 2 -
argument because the facts and legal contentions are adequately
presented in the materials before the court and argument would not
aid the decisional process.
DISMISSED
- 3 -
| {
"pile_set_name": "FreeLaw"
} |
33 Cal.2d 71 (1948)
CHARLES S. KING Appellant,
v.
J. S. SMITH et al., Defendants; JOHN CAWOG et al., Respondents.
L. A. No. 20455.
Supreme Court of California. In Bank.
Nov. 16, 1948.
Lyman A. Garber for Appellant.
Oliver O. Clark, Robert A. Smith, Hugo A. Steinmeyer, G. L. Berrey and Geo. L. Beckwith for Respondents.
CARTER, J.
This appeal involves a controversy over $3,000 and $800, which plaintiff claims.
It appears that Emma C. Arenz was the owner of an hotel property which she leased to defendant Cawog. Cawog subleased the property to defendant Smith for a rental of $600 or $1,350 a month (there is conflict as to the amount). The sublease transaction was handled through an escrow in which defendant Bank of America National Trust and Savings Association was the escrow holder. In that transaction the sum of $3,000 was deposited with the bank to assure the payment by Smith to Cawog of the rent under the sublease. Smith having defaulted on the rent, two successive judgments were obtained against him by Cawog aggregating $2,632.55. Execution thereon was levied on the bank which paid them from the $3,000.
In this action for declaratory relief and money had and received plaintiff seeks to recover the $3,000 from Cawog and the bank, asserting that he put up that sum as guarantor of Smith that the latter would pay the rent under the lease; that by reason of the statute of frauds (a contract to answer for the default of another must be in writing, Civ. Code, 1624(2)), alteration of the principal obligation and other rules of law applicable to a guaranty relation, Cawog had no right to take nor the bank to release any portion of the $3,000. If, however, his relation to the transaction was not that of a guarantor, then it follows that Cawog properly received the money on his execution and the bank properly paid it, leaving plaintiff's claim without foundation.
The court found that there was no guaranty relationship, but on the contrary, that plaintiff loaned the $3,000 to Smith which the latter deposited with the bank as his guarantee of the payment by him of the rent under the sublease. There is no doubt that if Smith was the guarantor rather than plaintiff, such guaranty was valid and enforceable inasmuch as he signed the escrow instructions involving the sublease and therein agreed to deposit $3,000 with the bank to "guarantee" his performance of the sublease; that if the $3,000 was loaned *73 by plaintiff to Smith rather than deposited by plaintiff as a guarantee for Smith, then plaintiff's only recourse is against Smith. (He obtained a judgment against Smith which is not here involved.) Plaintiff claims that the evidence is insufficient to show his part in the transaction to be a loan to Smith but on the contrary establishes a guaranty relation.
[1a] We believe the evidence is sufficient to support the court's findings.
The evidence shows that while Smith and Cawog were negotiating the sublease, they came to see plaintiff who knew Smith but not Cawog. Smith told plaintiff about his deal to sublease the hotel from Cawog and that he had to have some money. All three went to the bank where plaintiff transacted his business. He took $3,000 from his safe deposit box. This $3,000 was deposited with the bank in the escrow embracing the sublease transaction. It is the nature of that transaction that is vital.
According to plaintiff's testimony he deposited the $3,000 with the bank to "guarantee" the performance by Smith of the sublease; that he delivered the $3,000 to the bank; and that he did not loan the money to Smith. There is in evidence a receipt in which the bank acknowledged receiving from plaintiff the sum of $3,000, but nothing is said therein concerning the purpose it was to serve. It bore a notation of an escrow number which corresponded with the escrow number of the sublease escrow.
Opposed to the above evidence is the following: Cawog testified that Smith delivered the $3,000 to the bank and that he did not know where Smith got it, from which it may be inferred that it was Smith's money rather than plaintiff's, that is, that Smith had obtained it from plaintiff as a loan and that he (Smith) was posting it as security for the performance of the sublease; that he (Cawog) went with Smith from Los Angeles to Oxnard (where plaintiff lived and the bank was located) to get money to guarantee the performance of the sublease, from which it may be inferred that Smith was getting the money as his own to post as security. Plaintiff testified in relation to the $3,000 transaction that Smith told him: "I will give this $3,000 so you can leave it up there as my money, and in about eight or nine months --" [Italics added], which implies that the $3,000 deposited at the bank was to be Smith's money--a loan to Smith. He further testified that he did not see or read the sublease or the escrow instructions--did not know whether the former had been signed when he *74 claimed he deposited the $3,000 as a guaranty. This is an unusual practice for a person who claims he was the guarantor of a sublease, and casts doubt on his testimony that he made the deposit to guarantee its performance. His only explanation being that he left everything to Mr. Elmelund, an agent of the bank; that he gave no one any authorization with reference to the disposition of the $3,000; that Smith told him he would pay the money back to him and that he was perfectly satisfied with Smith's word on it--language usually associated with a loan of money. It further appears that sometime after the $3,000 transaction, Smith, accompanied by Cawog, went to see plaintiff about getting more money to meet his obligation under the sublease from Cawog, and plaintiff made no inquiry concerning whether Cawog had resorted to the $3,000 allegedly put up by him as a guaranty. [2] Plaintiff had known Smith previous to the pertinent dealings, but Cawog was a stranger to him and it is deducible from the evidence that his agreement to furnish $3,000 was primarily, if not wholly, addressed to Smith rather than Cawog, and in that connection it has been stated, that there is not a contract to answer for the debt of another within the statute of frauds where the alleged guarantor promises the debtor, rather than the creditor to pay the former's debt. (Garroway v. Jennings, 189 Cal. 97 [207 P. 554]; Kale v. Bankamerica Agr. Credit Corp., 2 Cal.App.2d 113 [37 P.2d 494]; Lawson v. Anderson, 97 Cal.App. 499 [275 P. 993]; Williston on Contracts [rev. ed.] 460.) [1b] Finally, in the escrow instructions concerning the sublease signed by Cawog and Smith, it was agreed by them that Smith would deposit $3,000 with the bank in escrow to guarantee the performance by him of the sublease to be released to Smith on written agreement between him and Cawog. While it may be that these declarations in the instructions are not binding on plaintiff inasmuch as he was not a party thereto and did not see them, yet they have a bearing upon the intent, and frame of mind and understanding of the alleged principal and debtor, Smith, and the alleged beneficiary of the guaranty, Cawog.
From all the circumstances, and considering that the issue is largely a factual one of the intent of the parties (see, Ackley v. Prime, 99 Cal.App. 534 [278 P. 932]; Williston on Contracts [rev. ed.], 465), it must be concluded that the evidence was sufficient to support the finding of a loan--the conclusion that title to the $3,000 was in Smith. This conclusion cannot be affected by plaintiff's claim of a presumption *75 and estoppel against the bank and Cawog because of their failure to call as witnesses the bank's representatives or take the deposition of Smith who was in prison and the existence of the receipt given by the bank. These contentions present nothing more than the existence of a conflict in the evidence which the trial court has resolved against plaintiff.
[3] As has heretofore been seen, there was also an item of $800 involved. It appears to be plaintiff's theory that the loan of that sum from plaintiff was negotiated by both Smith and Cawog, that Cawog defrauded plaintiff in connection with it, and that therefore Cawog is liable for it. The court found against those contentions. Plaintiff testified that on July 20th (the sublease transaction occurred the preceding February) Smith and Cawog called on him and Smith told him he was in a "lot of trouble"--had "just got out of the can" as the vice squad had picked him up; that to plaintiff's inquiry of what he wanted him to do, Smith said he had to pay Cawog $800 and that he (plaintiff) had to save him; that Cawog said Smith owed him $800 for rent--that that amount would clear Smith; that plaintiff thereupon gave Smith a check for $800 and he gave it to Cawog. A few days later Cawog commenced an action against Smith for rent in a considerably greater amount.
On the other hand Cawog testified that he told plaintiff that Smith was in default to the extent of $1,899, and he did not tell him the sum was $800.
Plainly there is sufficient evidence to support the court's finding against plaintiff's contention. While it is true that a few days after the $800 transaction, Cawog filed suit against Smith for nearly twice the sum of $800, apparently giving no credit for a payment of that sum, all we have is an apparent inconsistency in the testimony which was resolved by the trial court.
For the foregoing reason, the judgment is affirmed.
Gibson, C.J., Shenk, J., Edmonds, J., Traynor, J., Schauer, J., and Spence, J., concurred.
| {
"pile_set_name": "FreeLaw"
} |
527 F.Supp. 1064 (1981)
Barbara MEYERS, Plaintiff,
v.
I.T.T. DIVERSIFIED CREDIT CORPORATION, Defendant.
No. 80-222C(2).
United States District Court, E. D. Missouri, E. D.
December 14, 1981.
*1065 *1066 Charles R. Oldham, St. Louis, Mo., for plaintiff.
H. Kent Munson, St. Louis, Mo., for defendant.
MEMORANDUM
NANGLE, District Judge.
Plaintiff Barbara Meyers brought this action pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. She alleges that defendant discharged her and subjected her to disparate treatment due to her refusal to acquiesce in the sexual advances of her supervisor. Plaintiff asserts that these acts by her supervisor constituted sexual harassment in violation of Title VII and therefore entitle her to relief under this statute.
This case was pled by the plaintiff in two separate counts. One count was determined by a jury. The jury determined that plaintiff was entitled to relief in the amount of one dollar for defendant's violation of the Missouri Service Letter Statute, § 290.140, R.S.Mo. (1969). The Title VII count was tried to the Court sitting without a jury. The Court having considered the verdict of the jury on the service letter count, the testimony of the witnesses, the documents in evidence and the stipulation of the parties, and being fully advised in the premises, hereby makes the following findings of fact and conclusions of law, as required by Rule 52, Federal Rules of Civil Procedure.
FINDINGS OF FACT
1. Plaintiff, Barbara Meyers, is a white female and a resident of the State of Missouri.
2. Defendant, I.T.T. Diversified Credit Corporation, is a Delaware corporation doing business in Missouri, engaged in an industry affecting commerce. The corporation is an employer within the meaning of 42 U.S.C. § 2000e(b).
3. Plaintiff filed charges of employment discrimination with the Equal Employment Opportunity Commission ("E.E.O.C.") within one hundred eighty days of her termination, and brought this lawsuit within ninety days of receipt of her Right-to-Sue Letter from the E.E.O.C.
4. Plaintiff was employed by defendant, I.T.T. Diversified Credit Corporation on February 16, 1974 as a Computer Terminal Operator. She had sixteen to seventeen years of office experience prior to this appointment.
5. Plaintiff's employment with defendant ended on August 4, 1977. The defendant corporation stated in the Service Letter, issued pursuant to § 290.140, R.S.Mo. (1969), that plaintiff was dismissed because she informed David Bartin, the office manager, that she was unable to work for her immediate supervisor and that she was going home sick and probably would not return. The letter further stated the company considered plaintiff's statement tantamount to a quit.
6. The jury found that the defendant failed to state the true reason for plaintiff's termination in the Service Letter, and therefore defendant corporation was in violation of the Missouri Statute. The jury awarded the plaintiff nominal damages in the amount of $1.00 on this count of the complaint. This Court credits the findings of fact determined by the jury and therefore concludes that the reasons offered by the defendant corporation in this Service Letter do not represent the real reason for plaintiff's dismissal.
*1067 7. Defendant attempted to suggest that plaintiff was guilty of excessive absenteeism prior to her termination. Defendant claimed that plaintiff's neglect of her duties explained her confrontation with Mr. Bartin prior to her dismissal and also the willingness of the defendant to accept plaintiff's actions on August 4, 1977 as being tantamount to a quit. The Court does not find the explanation of plaintiff's dismissal by defendant credible in light of the evidence presented and the testimony of several witnesses.
8. In November of 1976 plaintiff was reviewed by Mr. Bartin, the office manager, and was given a ten percent raise. The review stated that plaintiff was a good employee. Defendant did not present any records in plaintiff's personnel file indicating that her performance was inadequate. Her time sheets from April of 1976 to June of 1977 did not reflect any absenteeism problems; these records were approved by Mr. Bartin. Finally, there was testimony to the effect that the immediate supervisor of the plaintiff, Mrs. Hatch, had indicated to an official of the Missouri Commission of Human Rights that plaintiff performed well at work.
9. There were several events leading up to the termination of the plaintiff. Plaintiff was moved to a back room and her hours were changed such that she had to remain in her office after the other employees had left the building. As a result, Mr. Bartin, the office supervisor, had more opportunities to make sexual advances to the plaintiff. Plaintiff testified as to uninvited instances when her supervisor placed his hand on her shoulder and thighs while she was at work in the terminal room. In addition, plaintiff stated that Mr. Bartin made improper suggestions at the firm Christmas party in 1976. Finally, several witnesses testified that the relationship between Mr. Bartin, the office manager, and the plaintiff was very strained.
10. As a result of these sexual advances by Mr. Bartin plaintiff contacted several officials at I.T.T. Diversified Credit Corporation, notified them of this situation, and attempted to obtain a transfer in May and June 1977. Plaintiff was unsuccessful in these attempts and remained accountable to Mr. Bartin.
11. Mr. David Bartin, the office supervisor, fired Mrs. Meyers on August 4, 1977. He testified that the reason for her termination was plaintiff's refusal to work for her immediate supervisor, Mary Hatch. Mary Hatch was promoted to this supervisory position, despite the fact that she was hired after the plaintiff and that plaintiff had aided in her training. Mr. Bartin further testified that Mrs. Meyers had stated that she would not return to her position. The Court does not credit the testimony of Mr. Bartin. There is overwhelming evidence that the relationship between Mr. Bartin and plaintiff was excessively strained by the time of plaintiff's dismissal.
12. Prior to plaintiff's termination Mr. Bartin had instituted a procedure whereby plaintiff had to indicate in writing every time she wished to leave the office for a short period of time. In addition, plaintiff was denied the opportunity to take time off when her father was in the hospital. Finally, Mr. Bartin reprimanded the plaintiff for spending too long a time at the doctor's office. Mr. Bartin claimed that his actions were necessary in light of Mrs. Meyers' neglect of her work and absenteeism. This absenteeism was never documented in plaintiff's time records, despite the fact that Mr. Bartin personally approved them.
13. Finally, there was evidence presented showing that Mr. Bartin had planned to fire the plaintiff prior to August 4, 1977. Therefore, it was not Mrs. Meyers' action on the day of her termination that precipitated her dismissal, but instead Mr. Bartin's effort to retaliate for plaintiff's failure to respond to his sexual advances. Mr. Bartin did not use the normal company procedure when he dismissed Mrs. Meyers.
14. Plaintiff was subjected to sexual harassment during her employment at I.T.T. Diversified Credit Corporation. Despite her filing of charges of sexual harassment with the E.E.O.C. in June of 1977, no action was taken by the officials at defendant *1068 corporation. Plaintiff was dismissed eventually in retaliation for her refusal to acquiesce in the sexual advances of the office manager.
CONCLUSIONS OF LAW
This Court has jurisdiction of this case pursuant to 42 U.S.C. § 2000e et seq. Plaintiff claims that she was subjected to sexual harassment while employed at I.T.T. Diversified Credit Corporation. She further argues that as a result of her refusal to respond to the sexual advances of her supervisor she was subjected to disparate treatment and eventually dismissed.
In a Title VII cause of action the plaintiff has the initial burden of proving by a preponderance of the evidence a prima facie case of discrimination. If the plaintiff is successful, the defendants must then articulate a legitimate nondiscriminatory reason for their actions. The burden of producing evidence then shifts back to the plaintiff who must show by a preponderance of the evidence, that the defendants' explanation was merely a pretext for discrimination. Texas Department of Community Affairs v. Burdene, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981); McDonnell Douglas Corporation v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); Coleman v. Missouri Pacific Railroad Company, 622 F.2d 408 (8th Cir. 1980); Kirby v. Colony Furniture Company, Inc., 613 F.2d 696 (8th Cir. 1980).
The elements of a prima facie case in a Title VII cause of action vary according to the particular claim that a plaintiff asserts. A number of circuits have recently recognized that under certain circumstances the sexual harassment of a female employee will constitute a violation of Title VII. Tomkins v. Public Service Electric and Gas Company, 568 F.2d 1044 (3rd Cir. 1979); Barnes v. Costle, 561 F.2d 983 (D.C.Cir. 1977); Heelan v. Johns-Manville Corporation, 451 F.Supp. 1382 (D.Colo.1978).
In order to establish a prima facie case for a claim of sexual harassment a plaintiff must show by a preponderance of the evidence that first, the submission to the sexual advances of her supervisor was a term or condition of employment; second, plaintiff's employment was substantially affected by her failure to acquiesce to the sexual advances of her supervisor; third, employees of the opposite sex were not affected in the same manner. Tomkins v. Public Service and Electric Gas Company, supra; Heelan v. Johns-Manville Corporation, supra. Finally, in order to impose liability on an employer for the discriminatory acts of its supervisor, the plaintiff must make the additional showing that the employer had actual or constructive knowledge of the discriminatory acts of its supervisor and did nothing to rectify the situation. Tomkins v. Public Service and Electric Gas Company, supra; Heelan v. Johns-Manville Corporation, supra; Miller v. Bank of America, 600 F.2d 211 (9th Cir. 1979).
In this instance plaintiff has established successfully an inference of discriminatory intent by providing this Court with evidence of the different elements of the prima facie case of sexual harassment. It is clear that submission to the sexual advances of the office manager was a condition of plaintiff's employment at I.T.T. Diversified Credit Corporation. Plaintiff's hours and place of work were changed by her supervisor so that she might be more accessible to his advances. See Findings of Fact No. 9. An employee with less experience was advanced to a supervisory position in lieu of the plaintiff, see Findings of Fact No. 10, and finally procedures were instituted requiring the plaintiff to submit a written report every time she wished to leave her post. See Findings of Fact No. 11. Defendant claims these policies were instituted because plaintiff was guilty of excessive absenteeism; however the defendant failed to present any evidence showing that plaintiff was delinquent in her tasks at I.T.T. Diversified Credit Corporation. See Findings of Fact Nos. 7-8. Finally the decision to dismiss the plaintiff was not arrived at in the manner normally followed at I.T.T.; instead the office manager decided to fire Mrs. Meyers because she had *1069 refused to acquiesce in his sexual advances. See Findings of Fact Nos. 12-13.
It is also clear from the evidence presented at trial that plaintiff's employment was substantially affected by the discriminatory actions of her supervisor. In order to establish a violation of Title VII, discrimination on the basis of gender need not be the sole factor motivating a particular employment decision. A plaintiff need only establish that gender substantially contributed to the discriminatory treatment of a particular employee. Coleman v. Missouri Pacific Railroad Company, supra; Barnes v. Costle, supra; Barding v. Board of Curators of Lincoln University, 497 F.Supp. 1013 (W.D.Mo.1980). It is obvious that plaintiff's gender was an indispensable factor in her supervisor's decision to dismiss her and subject her to sexual harassment. The relationship between plaintiff and the office manager was strained because of plaintiff's failure to respond to her supervisor's sexual advances.
The last element of the prima facie case that plaintiff had to establish in order to impose liability on defendant I.T.T. Diversified Credit Corporation is that the defendant had knowledge or constructive knowledge of the discriminatory actions of its office manager. Tomkins v. Public Service Electric and Gas Company, supra; Barnes v. Costle, supra. Generally, an employer is liable for the Title VII violations resulting from the discriminatory practices of its supervisory personnel unless the employer takes action to rectify the situation, or the plaintiff fails to avail herself of the internal procedures provided by the defendant corporation. Miller v. Bank, supra. Mrs. Meyers not only notified her superiors of the problems she was experiencing at I.T.T. but she requested a transfer. Her efforts were futile. See Findings of Fact Nos. 10 and 13. Even after the plaintiff filed charges of discrimination with the E.E.O.C. the officials at I.T.T. failed to rectify the discriminatory treatment of the plaintiff. Upon these facts defendant I.T.T. Diversified Credit Corporation is clearly chargeable with the acts of discrimination and sexual harassment engaged in by its office manager.
Whenever a plaintiff demonstrates successfully a prima facie case of discrimination under Title VII, the burden then shifts to the defendant employer to articulate a legitimate nondiscriminatory reason for its actions. In this case defendant alleged that plaintiff was guilty of excessive absenteeism and disregard of her duties. However, these charges were not documented in plaintiff's review or time records. See Findings of Fact Nos. 7-8. In addition, the jury found that the reason stated by defendant for plaintiff's dismissal in the Missouri Service Letter did not represent the real reason for plaintiff's termination. See Findings of Fact Nos. 5-6. On this basis, this Court concludes that the reasons offered by defendant I.T.T. Diversified Credit Corporation were merely a pretext for illegal discrimination in violation of Title VII. Defendant has failed to successfully rebut the presumption of unlawful discrimination by articulating a legitimate nondiscriminatory reason for its discharge of the plaintiff. Burdene, supra. Accordingly, judgment will be entered for the plaintiff.
DAMAGES
42 U.S.C. § 2000e-5(g) provides a court with the discretion to order "such affirmative action as may be appropriate" upon the finding that the defendant has engaged in an unlawful employment practice. The statute allows the court to order reinstatement with or without back pay, or solely back pay if the court deems that relief to be appropriate. However, the statute limits the back pay award by providing that "[i]nterim earnings or amounts earnable with reasonable diligence by the person or persons discriminated against shall operate to reduce the back pay otherwise allowable." In her complaint, plaintiff has requested this Court to order her reinstatement and award her all back wages, interest, and any employment benefits, that she lost because of defendant's unlawful employment practices. In addition, plaintiff *1070 asks for an award of reasonable attorneys' fees.
The Supreme Court has held that § 706(g) of the Act vests broad discretion in federal courts to fashion appropriate remedies in Title VII cases. Franks v. Bowman Transportation Company, 424 U.S. 747, 96 S.Ct. 1251, 47 L.Ed.2d 444 (1976); Albermarle Paper Company v. Moody, 422 U.S. 405, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1975). The remedies provided by the statute are neither "automatic or mandatory." Albermarle Paper Company v. Moody, 422 U.S. at 415, 95 S.Ct. at 2370. Therefore, the reinstatement of an employee unlawfully discharged is not mandatory under the statute. The decision to grant or deny reinstatement lies within the sound discretion of the trial court. Burton v. Cascade School District Union High School No. 5, 512 F.2d 850 (9th Cir. 1975); E.E.O.C. v. Kallir, Phillips, Noss, Inc., 420 F.Supp. 919 (S.D.N.Y.1978). It is the opinion of this Court that there are alternative means of granting fair and appropriate relief considering the circumstances of this case. In light of the possibility of difficulties or hostilities that reinstatement might cause and in light of the fact that defendant has transferred its computer operations to another company, reinstatement will be denied.
It is clear that the plaintiff is entitled to a back pay award pursuant to 42 U.S.C. § 2000e-5(g). In light of the policy embodied in the act to make a victim of discriminatory acts whole, it has been held that the award of back pay should include more than straight salary. Among the items that courts have included are interest, overtime, vacation pay, medical benefits and pension benefits that would have accrued to the plaintiff during the relevant period of time. Pettway v. American Cast Iron Pipe Company, 494 F.2d 211 (5th Cir. 1974); Bowe v. Colgate Palmolive Company, 489 F.2d 896 (7th Cir. 1973); Willett v. Emory and Henry College, 427 F.Supp. 631 (W.D.Va.1977); Shaffield v. Northrop Worldwide Aircraft Services, Inc., 373 F.Supp. 937 (S.D.Ala.1974); Tidwell v. American Oil Company, 332 F.Supp. 424 (C.D.Utah 1971). However, the statute mandates that the amounts that the plaintiff earned from other employment or received in the form of unemployment compensation should be deducted from the award of back pay pursuant to 42 U.S.C. § 2000e-5(g). Ostapowicz v. Johnson, 541 F.2d 394 (3rd Cir. 1976); Robinson v. Dow, 522 F.2d 855 (6th Cir. 1975). Therefore, plaintiff will be awarded $34,584.00, which represents the amount of money she would have earned or received from I.T.T. Diversified Credit Corporation if the defendant had not terminated her employment. However, subsequent to her tenure at I.T.T. Diversified Credit Corporation, plaintiff earned and received in unemployment compensation a total of $33,670.28. This amount must be subtracted from the award of back pay pursuant to 42 U.S.C. § 2000e-5(g), which results in an award of $913.72. In addition, plaintiff will be awarded an additional $933.00 for lost vacation pay, and interest on the total award, computed at 8% per annum. Although plaintiff requests damages for monies she would have received from defendant's savings, medical, and tuition plans, plaintiff has failed to sustain her burden on this issue. Plaintiff failed to establish that these benefits would have accrued to her but for her unlawful termination by the defendant. However, in lieu of reinstatement, plaintiff will be awarded an additional $3,000.00 in accordance with the "make whole" policy embodied in the Act. Burton v. Cascade School District Union High School No. 5, supra; E.E.O.C. v. Kallir, Phillips, Noss, Inc., supra. Therefore, plaintiff will be awarded $4,994.46 in damages as compensation for her unlawful termination by defendant I.T.T. Diversified Credit Corporation.
Accordingly, judgment will be entered for the plaintiff and a hearing will be held on Monday, December 21, 1981 at 9:30 a. m. to determine plaintiff's reasonable attorneys' fees.
| {
"pile_set_name": "FreeLaw"
} |
September 20, 2016
JUDGMENT
The Fourteenth Court of Appeals
MANUEL AL FRIAS, Appellant
NO. 14-15-00376-CV V.
SOVRAN HHF STORAGE HOLDINGS, LLC, Appellee
________________________________
This cause, an appeal from the judgment in favor of appellee, Sovran HHF
Storage Holdings, LLC, signed January 27, 2015, was heard on the transcript of the
record. We have inspected the record and find the trial court erred by granting
summary judgment on the claims of appellant, Manuel Al Frias, for trespass to
personal property and violation of the Texas Deceptive Trade Practices–Consumer
Protection Act (DTPA). We therefore order that the portions of the judgment that
render summary judgment on appellant’s trespass-to-personal-property and DTPA
claims are REVERSED and ordered severed and REMANDED for proceedings
in accordance with this court’s opinion.
Further, we find no error in the remainder of the judgment and order it
AFFIRMED.
We order appellee, Sovran HHF Storage Holdings, LLC, to pay all costs
incurred in this appeal.
We further order this decision certified below for observance.
| {
"pile_set_name": "FreeLaw"
} |
643 F.2d 1229
1981-1 Trade Cases 63,886
CHRYSLER CORPORATION, Plaintiff-Appellant,v.FEDDERS CORPORATION, Fedders International Corporation,Airtemp Corporation, Airtemp InternationalCorporation, Fedders World TradeCorporation and Interclisa,S.A., Defendants-Appellees.
No. 78-1287.
United States Court of Appeals,Sixth Circuit.
Argued April 11, 1980.Decided and Filed March 18, 1981.Rehearing and Rehearing En Banc Denied May6, 1981.
William G. Christopher, Avern Cohn, Honigman, Miller, Schwartz & Cohn, Detroit, Mich., Robert Ehrenbard, Kelley, Drye & Warren, William C. Heck, New York City, for plaintiff-appellant.
Gilbert E. Gove, Miller, Canfiled, Paddock & Stone, Detroit, Mich., for Fedders.
John H. Fildew, Fildew, Bilbride, Miller & Todd, Charles D. Todd, III, Detroit, Mich., for Interclisa.
Lawrence N. Weiss, Weisman, Celler, Spett, Modlin & Wertheimer, Russell E. Brooks, Richard C. Tufaro, Milbank, Tweed, Hadley & McCloy, New York City, for defendants-appellees.
Before EDWARDS, Chief Judge, BOYCE F. MARTIN, Jr., Circuit Judge, and PHILLIPS, Senior Circuit Judge.
BOYCE F. MARTIN, Circuit Judge.
1
Chrysler Corporation appeals the dismissal of its complaint charging Fedders Corporation and others with violations of the antitrust laws. The case arose after Chrysler entered into an agreement with Fedders to sell virtually all the assets of Chrysler's Airtemp Division. The Airtemp Division was engaged in the business of designing, manufacturing, marketing, and servicing non-automotive air-conditioning systems. The assets acquired by Fedders included the stock of various subsidiaries connected with the Airtemp operation, but excluded two subsidiaries in Australia and South Africa. Chrysler also covenanted, with certain exceptions, not to compete in the non-automotive air-conditioning market for a period of five years.
2
After the contract was executed, Chrysler became dissatisfied with the agreement. According to the complaint filed below, Fedders has never paid Chrysler several million dollars due under the contract.
3
On November 14, 1977, Chrysler brought this action under § 4 of the Clayton Act, 15 U.S.C. § 15, alleging that the defendants had violated § 1 of the Sherman Act, 15 U.S.C. § 1. The complaint charged the defendants with conspiring to manipulate the non-automotive air-conditioning market in a manner calculated to lessen and eliminate competition. In addition to the antitrust claim, Chrysler alleged twenty-two pendant claims for relief under state law.
4
On February 10, 1978, all the defendants except Interclisa moved, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, to dismiss the antitrust claim on the grounds that it failed to state a cause of action and that Chrysler lacked standing to sue under § 4 of the Clayton Act. They also moved under Rule 12(b)(1) to dismiss the other claims for lack of diversity.
5
On February 24, 1978, the District Court granted the motion to dismiss the antitrust claim. It specifically found that Chrysler met the standing requirements articulated by this Court in Malamud v. Sinclair Oil Corp., 521 F.2d 1142 (6th Cir. 1975), but went on to hold that Malamud is "wrong" in light of the Supreme Court's decision in Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 97 S.Ct. 690, 50 L.Ed.2d 701 (1977). The District Court characterized Chrysler's claim as a breach of contract action which lacked the element of "antitrust injury" required by Brunswick. Because this essential element was missing, the court held that Chrysler did not have standing to sue under § 4 of the Clayton Act.
6
On March 10, 1978, defendant Interclisa, a Spanish corporation, filed a Rule 12(b)(2) and 12(b)(6) motion to dismiss the complaint against it. Interclisa alleged, in addition to the arguments advanced by the Fedders defendants, that the court lacked in personam jurisdiction over Interclisa. The District Court agreed and granted the motion, holding that Interclisa had insufficient contacts with the forum to support jurisdiction under either the Michigan long arm statute, M.C.L.A. § 600.715(2), or § 12 of the Clayton Act, 15 U.S.C. § 22. The court also denied Chrysler's request for further discovery on the question of Interclisa's forum contacts.
7
On appeal, Chrysler contends that it succeeded in making out a cause of action under § 1 of the Sherman Act and that it satisfies this circuit's requirements for standing to sue under § 4 of the Clayton Act. It argues that our opinion in Malamud is unaffected by the Supreme Court's Brunswick decision and that, in any event, its complaint alleges "antitrust injury." Chrysler also claims that the District Court erred in dismissing the complaint against Interclisa on jurisdictional grounds and in refusing to allow Chrysler to conduct further discovery of jurisdictional facts.
8
We hold that Brunswick does not negate our decision in Malamud. Rather, the effect is cumulative; Brunswick merely adds to the standing requirements set out in Malamud. Insofar as Chrysler claims that the defendants eliminated it as a competitor in the non-automotive air-conditioning market, the District Court correctly concluded that Chrysler failed to allege "antitrust injury" and therefore lacked standing under § 4 of the Clayton Act. However, certain of Chrysler's other allegations do satisfy this circuit's post-Brunswick standing test and should not have been dismissed.
9
Finally, we affirm the District Court's finding that it lacked personal jurisdiction over Interclisa and uphold its exercise of discretion in denying Chrysler's request for further discovery.
10
I. Chrysler's Standing Under § 4 of the Clayton Act
11
In Malamud, supra, this Court addressed the troublesome question of standing to sue under § 4 of the Clayton Act. The plaintiffs in that case fell into three categories: 1) the individuals Jack and Ann Malamud, who were also the officers, directors, and sole shareholders of the corporate plaintiffs; 2) Malco Petroleum, a petroleum distributing corporation; and 3) three real estate investment corporations.
12
In 1965, Malco and Sinclair Oil executed a distribution agreement. The parties had an understanding that Sinclair would provide financial assistance to the Malamuds' investment companies in their efforts to acquire and develop new service station properties. In early 1966, however, Sinclair declined to help finance several proposed real estate ventures, whereupon Malco unsuccessfully sought an early termination of the contract. After the contract expired, the plaintiffs filed suit, alleging that Sinclair's failure to provide financing and refusal to permit an early contract termination violated § 1 of the Sherman Act and § 3 of the Clayton Act.
13
Sinclair sought and was denied summary judgment. On a motion for reconsideration, it argued that all of the plaintiffs lacked standing because none of them had been "directly" injured. The District Court rejected this contention and held that all the plaintiffs had standing as defined in Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970). However, it went on to find that neither the individual plaintiffs nor Malco could possibly satisfy the further requirement that their injury bear a "direct" and causal relationship to the alleged antitrust violations. As for the investment company plaintiffs, however, a determination of the "directness" of their injury presented mixed questions of law and fact. Accordingly, the District Court denied summary judgment against the investment firms. It subsequently certified for appeal the threshold question of their standing to sue.
14
We affirmed the lower court's finding that the investment companies had standing but rejected its application of the "direct injury" test as a means of limiting standing under § 4. 521 F.2d at 1149. The concept of "direct injury," derived from Loeb v. Eastman Kodak, 183 F. 704 (3rd Cir. 1910), focuses on the relationship between the plaintiff and the defendant. If the alleged injury is "remote," such as that of a stockholder or creditor of a corporation injured by the defendant, standing is denied. Loeb, supra; Gerli v. Silk Association of America, 36 F.2d 959, 960 (S.D.N.Y.1919). We also rejected the "target area" test, another means of circumscribing standing under § 4. That standard requires the plaintiff to be within the area of the economy allegedly injured by the defendant, In Re Multidistrict Vehicle Air Pollution M.D.L. No. 31, 481 F.2d 122 (9th Cir.), cert. denied, 414 U.S. 1045, 94 S.Ct. 551, 38 L.Ed.2d 336 (1973); In Re Beef Industry Antitrust Litigation, 600 F.2d 1148 (5th Cir. 1979), and has spawned numerous and often inconsistent opinions attempting to delineate its scope. See Berger and Bernstein, An Analystical Framework for Antitrust Standing, 86 Yale L.J. 809, 830 (1977).
15
The two approaches to standing described above purport to derive from the causative language in § 4 itself, i. e., absent a showing that the plaintiff suffered "direct injury" or was within the "target area," no injury "by reason of anything forbidden in the antitrust laws" is deemed to have occurred. Our refusal to apply either theory was based on the belief that both demand too much from a plaintiff at the pleading stage of his case. In effect, they require a court "to make a determination on the merits of a claim under the guise of assessing the standing of the claimant." 521 F.2d at 1150. (emphasis in original).
16
We decided in Malamud that the appropriate test for standing in an antitrust action is the one articulated by the Supreme Court in Association of Data Processing Service Organizations v. Camp, supra, a case involving standing under the Bank Service Corporation Act of 1962, 12 U.S.C. § 1864. That standard requires (1) an allegation that the defendant caused the plaintiff injury in fact, and (2) that the interest which the plaintiff seeks to protect is arguably within the zone of interests protected by the relevant antitrust laws. 521 F.2d at 1151. In essence, we repudiated any "proximate cause" limitations on antitrust standing in favor of the less stringent requirement that the plaintiff be protected by the substantive antitrust law. See Berger and Bernstein, supra, at 838-39.
17
Two years after Malamud, the Supreme Court decided the Brunswick case. There, the plaintiffs sought treble damages against the Brunswick Corporation, one of the two largest manufacturers of bowling equipment in the United States. During the retail bowling boom in the 1950's, the majority of Brunswick's sales were on extended credit terms. The early 1960's brought a sharp decline in the industry, and Brunswick encountered great difficulty in collecting the debts created by the earlier expansion. Brunswick began repossessing the equipment and, where possible, reselling it in place to third parties. Where resale was impossible, Brunswick acquired and operated certain defaulting retail centers. The plaintiffs were retail bowling centers in competition with the acquired centers in three markets. They alleged that Brunswick's acquisitions in those markets violated § 7 under the "deep pocket" theory of Reynolds Metals Co. v. F. T. C., 309 F.2d 223 (D.C.Cir.1962), and F. T. C. v. Proctor and Gamble Co., 386 U.S. 568, 87 S.Ct. 1224, 18 L.Ed.2d 303 (1967). The plaintiffs argued that but for Brunswick's acquisitions the acquired centers would have gone out of business, and the plaintiffs would have gained customers and realized increased profits. Thus, they concluded, they were injured in their business by reason of Brunswick's § 7 violation and were, therefore, entitled to treble damages under § 4.
18
The Supreme Court rejected this theory of recovery, holding that § 4 requires a plaintiff to prove more than just a § 7 violation and a causal link between that violation and the alleged injury. 429 U.S. at 489, 97 S.Ct. at 697. The Court noted that the plaintiffs' real complaint was that Brunswick's acquisition of the bowling centers preserved competition, thereby depriving the plaintiffs of the increased profits which would have resulted from the reduction of competition. The Court stated:
19
Plaintiffs must prove antitrust injury, which is to say injury of the type the antitrust laws were intended to prevent and that flows from that which makes defendants' acts unlawful. The injury should reflect the anticompetitive effect either of the violation or of anticompetitive acts made possible by the violation. It should, in short, be "the type of loss that the claimed violations ... would be likely to cause." Zenith Radio Corp. v. Hazeltine Research, 395 U.S. at 125, 89 S.Ct. at 1577.
20
Id. (footnote omitted). Since the plaintiffs offered no alternative theory to support their damage award, the Court directed that a judgment notwithstanding the verdict be entered in favor of Brunswick. Id. at 490, 97 S.Ct. at 698.
21
We disagree with Chrysler's suggestion that the holding in Brunswick is limited to treble damage actions for violations of § 7 of the Clayton Act. Although that decision was an "intermeshing" of § 7's prohibitions with the § 4 remedy, 429 U.S. at 486, 97 S.Ct. at 696, it primarily addresses the boundaries of the treble damage section. The Supreme Court was concerned with bringing antitrust recovery in line with the purposes of the antitrust laws. Id. at 487, 97 S.Ct. at 696. We see no reason why its holding should not be applicable where, as here, the statutory prohibition upon which a treble damage action is based is found in the Sherman Act.
22
We also disagree with Chrysler's assertion that nothing in Brunswick mandates any change in the Malamud standing tests. Although the Supreme Court did not explicitly describe the issue in Brunswick as one of standing, that decision clearly establishes that a plaintiff must plead an injury of the type § 4 was intended to remedy before his case will be heard. That Brunswick involved a controversy which had already been tried in the District Court does not, as Chrysler argues, limit its relevance to the causation of antitrust damage. If the failure to prove cognizable damages requires a judgment for the defendant notwithstanding the verdict, 429 U.S. at 491, 97 S.Ct. at 698, it follows that a failure to allege cognizable damages compels the dismissal of the complaint.
23
Thus, we interpret Brunswick to mean that the pleading of "antitrust injury" is an essential component of standing under § 4 of the Clayton Act.1 Other courts have reached a similar conclusion. John Lenore & Co. v. Olympia Brewing Co., 550 F.2d 495 (9th Cir. 1977); Hardwick v. Nu-Way Oil Co., 443 F.Supp. 940 (S.D.Tex.1978); aff'd, 589 F.2d 806, cert. denied, 444 U.S. 836, 100 S.Ct. 70, 62 L.Ed.2d 46 (1979); Juneau Square Corp. v. First Wisconsin National Bank, 445 F.Supp. 965 (E.D.Wis.1978); L&H Investments, Ltd. v. Belvey Corp., 444 F.Supp. 1321 (W.D.N.C.1978).
24
As we have already observed, Brunswick merely adds to the Malamud standing requirements; it does not, as the District Court suggests, prove Malamud "wrong." Brunswick in no way alters our rejection of the "direct injury" and "target area" approaches to antitrust standing. Indeed, we reiterate here our admonition against making a determination on the merits under the guise of assessing the standing of the claimant. "The fundamental aspect of standing is that it focuses on the party seeking to get his complaint before a federal court and not on the issues he wishes to have adjudicated." Flast v. Cohen, 392 U.S. 83, 99, 88 S.Ct. 1942, 1952, 20 L.Ed.2d 947 (1968).
25
In order to establish standing in an antitrust action, this circuit continues to require (1) that the plaintiff allege injury in fact and (2) that the interest which the plaintiff seeks to protect is arguably within the zone of interests protected by the statute in question. Brunswick adds to that standard the requirement that the plaintiff allege antitrust injury when seeking treble damages under § 4 of the Clayton Act. Unlike the "direct injury" and "target area" tests, Brunswick does not inject an element of proximate cause into the standing inquiry; rather, it compels the court to focus on the type of injury pleaded and its relationship to the alleged anticompetitive conduct.
26
In the present case, Chrysler's primary allegation is that it has been eliminated from competition with the defendants by the virtual destruction of the Airtemp Division and its affiliated foreign subsidiaries. Chrysler contends that Fedders' failure to fulfill its obligations under the contract gave the Fedders defendants the financial power to effect this destruction. Chrysler does not suggest that the contract itself violates the antitrust laws; rather, it claims that Fedders' subversion of that agreement was the anticompetitive means of eliminating Chrysler from the market.
27
We hold that these alleged injuries do not constitute "anti-trust injury" within the meaning of Brunswick, supra. By contracting to sell virtually all the assets of the Airtemp Division and all but two of its foreign subsidiaries, Chrysler voluntarily withdrew from competition in the non-automotive air-conditioning market. It did not contemplate continuing to compete in that market and in fact covenanted not to do so except through the Australian and South African subsidiaries.
28
Even if a breakdown of competitive conditions in the market has indeed occurred, Chrysler's loss is not attributable to that change. Chrysler would have suffered an identical loss if the defendants had failed to make payments under the contract for reasons unrelated to the alleged antitrust violations. Cf. Brunswick, supra, at 487, 97 S.Ct. at 696. Moreover, if the defendants had fulfilled their obligations as agreed, Chrysler would have no complaint, yet would still be divested of its assets and precluded from competing in the market. See A. D. M. Corp. v. Sigma Instruments, Inc., 628 F.2d 753 (1st Cir. 1980). Therefore, to the extent that Chrysler alleges damages resulting from its elimination from competition with the defendants through the Airtemp Division and the subsidiaries included in the contract for sale, it lacks the "essential connection between injury and the aims of the antitrust laws" necessary to establish standing. A. D. M. Corp., supra, at 754.
29
However, Chrysler does not lack standing to pursue all of the allegations in its complaint. The claim that it has been injured as a purchaser of air-conditioning equipment by the defendants' anticompetitive acts is clearly an allegation of "antitrust injury." See Chattanooga Foundry & Pipe Works v. Atlanta, 203 U.S. 390, 27 S.Ct. 65, 51 L.Ed. 241 (1906). Chrysler also satisfies both requirements of the standing test set out in Malamud. That claim cannot be dismissed on the pleadings; on remand, Chrysler must be given an opportunity to support its allegation with proof.
30
Chrysler's contention that it has been injured by the destruction of Chrysler South African and Chrysler Australia, the two subsidiaries excluded from the agreement, is also an allegation of "antitrust injury." As a shareholder of those subsidiaries, Chrysler has pleaded injury which reflects the anticompetitive nature of the challenged conduct. This claim satisfies Malamud 's requirements as well; it alleges injury in fact, and Chrysler's interest as the parent of a subsidiary destroyed by a § 1 violation is arguably within the zone of interests protected by the antitrust laws. The real question regarding this alleged injury is not one of standing, but of directness. When we rejected the "direct injury" approach to standing in Malamud, we explicitly characterized the issue of "directness" as "one that must be resolved upon some factual showing." 521 F.2d at 1150. Though the District Court may conclude that Chrysler is too remote from the violation to maintain an action for these damages, see Volasco Products Co. v. Lloyd A. Fry Roofing Co., 308 F.2d 383 (6th Cir. 1962), cert. denied, 372 U.S. 907, 83 S.Ct. 721, 9 L.Ed.2d 717 (1963), it may not dismiss the claim on the theory that Chrysler lacks standing to assert it. Such a result would contravene the liberal standing requirements adopted by this circuit in Malamud.
II. Jurisdiction Over Interclisa
31
Chrysler asserts that the District Court had personal jurisdiction over Interclisa under the Michigan long arm statute, M.C.L.A. § 600.715(2), and under § 12 of the Clayton Act, 15 U.S.C. § 22.
32
A. Jurisdiction under the long arm statute.
33
The Michigan long arm statute, available to Chrysler pursuant to Rule 4(e) of the Federal Rules of Civil Procedure, provides for limited in personam jurisdiction over a corporation whose relationship with the state arises from "(t)he doing or causing any act to be done, or consequences to occur, in the state resulting in an action for tort." Chrysler's antitrust claim is a form of tort action. See Weinstein v. Norman M. Morris Corp., 432 F.Supp. 337 (E.D.Mich.1977).
34
The Michigan statute confers on the state courts the maximum scope of personal jurisdiction permitted by the due process clause of the Fourteenth Amendment. Microelectronic Systems Corp. v. Bamberger's, 434 F.Supp. 168 (E.D.Mich.1977). Due process requires that defendants have such minimum contracts with the forum state that maintenance of an action would not offend "traditional notions of fair play and substantial justice." International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945).
35
The only contacts which Chrysler asserts that Interclisa has had with the State of Michigan are the acts of Interclisa's codefendants. Chrysler alleges that Interclisa conspired to violate the antitrust laws and that "critical acts" in furtherance of the conspiracy were performed in Michigan by Interclisa's coconspirators. Chrysler claims that those acts and their consequences are attributable to Interclisa for the purpose of establishing the minimum contacts necessary to the court's exercise of personal jurisdiction.
36
This court has not addressed the question of whether the acts of a coconspirator, performed in the forum state in furtherance of the conspiracy, constitute sufficient minimum contacts to establish personal jurisdiction over an absent coconspirator who has no other contact with the forum. The leading case on this "conspiracy theory" of jurisdiction is Leasco Data Processing Equipment Corp. v. Maxwell, 319 F.Supp. 1256 (S.D.N.Y.1970), a securities fraud action under the Securities Exchange Act of 1934. There, one of the defendants, an English solicitor, challenged the District Court's jurisdiction over him under the New York long arm statute. He argued that allegations of his participation in a conspiracy which acted in New York through another defendant were, without more, insufficient to support jurisdiction. In holding that it did not have personal jurisdiction over the alien defendant,2 the court stated that "mere allegations of conspiracy and even the presence of one co-conspirator within the jurisdiction do not give jurisdiction over all the alleged coconspirators." 319 F.Supp. at 1261. It added that the plaintiff's allegations of conspiracy were totally unsupported and were denied by the alien defendant by affidavit. The court noted that "(t)o meet due process requirements there must be a factual showing of conspiracy and also of a connection between the acts of the conspirator who was present in the jurisdiction and the conspirator who was absent." Id.
37
The Leasco approach has been adopted in several jurisdictions where the question has arisen. See, e. g., McLaughlin v. Copeland, 435 F.Supp. 513 (D.Md.1977); Chromium Industries v. Mirror Polishing and Plating Co., 448 F.Supp. 544 (N.D.Ill.1978). Other courts have rejected the coconspirator theory as an impermissible means of enlarging the "transacting business" test of § 12 of the Clayton Act. See Weinstein v. Norman M. Morris Corp., supra; West Virginia v. Morton International, Inc., 264 F.Supp. 689 (D.Minn.1967); I. S. Joseph Co., Inc. v. Mannesmann Pipe and Steel Corp., 408 F.Supp. 1023 (D.Minn.1976).
38
The Leasco requirement that a plaintiff make a factual showing of conspiracy has been criticized because of the difficulties of pleading and proving conspiracy. Thus, in Mandelkorn v. Patrick, 359 F.Supp. 692 (D.D.C.1973), the court exercised personal jurisdiction over the non-resident defendants as a result of their alleged participation in a conspiracy to violate 42 U.S.C. §§ 1983 and 1985, despite the plaintiffs' failure to make a factual showing of conspiracy. However, the Mandelkorn court found it significant that the defendants had denied neither the existence of nor their participation in the alleged conspiracy. It specifically noted that the situation would have been quite different if the defendants had denied the allegations. 359 F.Supp. at 396-97. See also Centronics Data Computer Corp. v. Mannesmann, A.G., 432 F.Supp. 659 (D.N.H.1977).
39
In the present case, Chrysler's allegation of a conspiracy including Interclisa and the Fedders defendants is unsupported by any factual assertions. In support of its motion to dismiss, Interclisa filed two affidavits of its managing director, Alfredo Calzada Atienza. Those affidavits state, in pertinent part, that Interclisa was not involved in the contract negotiations between Chrysler and Fedders and had no knowledge of or connection with any conspiracy. Chrysler did not submit counter-affidavits and, as the trial court pointed out, offered no reason to doubt any of the statements in Mr. Calzada's affidavits. Under these circumstances we hold that Chrysler's totally unsupported allegations of conspiracy cannot constitute sufficient contacts with Michigan to justify an exercise of personal jurisdiction over Interclisa by the District Court.
40
Similarly, the allegation of conspiratorial activities with tortious consequences in the forum state is insufficient to support jurisdiction under the long arm statute in the absence of some minimal factual showing of Interclisa's participation in the conspiracy. Cf. Weinstein, supra, 432 F.Supp. at 345.
41
In light of our holding on this issue, we need neither adopt nor reject the "conspiracy theory" of in personam jurisdiction as a general principle of law in this circuit.
42
B. Jurisdiction under § 12 of the Clayton Act.
43
Chrysler advances a second basis for its assertion that Interclisa is subject to the personal jurisdiction of the District Court. According to Chrysler's theory, jurisdiction over a foreign corporation being sued on a federal cause of action may be founded on the corporation's contacts with the United States as a whole as opposed to its contacts with the forum state.3 This "national contacts" or "aggregate contacts" concept is based on the proposition that a court's jurisdictional power to render a binding judgment on federal questions must be examined in light of the due process clause of the Fifth rather than the Fourteenth Amendment. Edward J. Moriarty & Co. v. General Tire and Rubber Co., 289 F.Supp. 381 (S.D.Ohio 1967). Although the "minimum contacts" test developed in the International Shoe line of cases deals with Fourteenth Amendment due process restrictions on the states, the rationale of those cases applies equally to the Fifth Amendment, since the sovereign powers of the United States are at least as broad as those of the states. Amburn v. Harold Forster Industries, Ltd., 423 F.Supp. 1302, 1304 (E.D.Mich.1976). The court in Moriarty, supra, described the appropriate application of the minimum contacts test to state and federal governments:
44
Thus, in our view, the judicial jurisdiction over the person of the defendant does not relate to the geographical power of the particular court which is hearing the controversy, but to the power of the unit of government of which that court is a part. The limitations of the concept of personal jurisdiction are a consequence of territorial limitations on the power of the respective forums. Thus, as applied to the states, the constitutional test for personal jurisdiction involves a determination as to whether the defendant has certain minimal contacts with the forum state, such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice. International Shoe Co. v. State of Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945).
45
By the same token, we feel that the appropriate inquiry to be made in a federal court where the suit is based upon a federally created right is whether the defendant has certain minimal contacts with the United States, so as to satisfy due process requirements under the Fifth Amendment. For a thorough discussion of this theory, see Green, "Federal Jurisdiction in Personam of Corporations and Due Process," 14 Vanderbilt L.Rev. 967 (1961); Note, "Jurisdiction of Federal District Courts over Foreign Corporations," 69 Harv.L.Rev. 508 (1956). Also see, Jaftex Corp. v. Randolph Mills, Inc., 282 F.2d 508 (2 Cir. 1960); Gkiafis v. Steamship Yiosonas, 342 F.2d 546 (4 Cir. 1965); Mutual International Export Co. v. Napco Industries, Inc., 114 U.S.App.D.C. 392, 316 F.2d 393 (1963); Lone Star Package Car Co. v. Baltimore & O. R. Co., 212 F.2d 147 (5 Cir. 1954); Goldberg v. Mutual Readers League, Inc., 195 F.Supp. 778 (E.D.Pa.1961); Bar's Leaks Western v. Pollock, 148 F.Supp. 710 (N.D.Cal.1957); Singleton v. Atlantic Coast Line R. R. Co., 20 F.R.D. 15 (E.D.Mich.1956).
46
It may well be neither unfair nor unreasonable as a matter of due process to aggregate the nonforum contacts of an alien corporate defendant in order to establish personal jurisdiction. In Engineered Sports Products v. Brunswick Corp., 362 F.Supp. 722 (D.Utah 1973), the court observed: "Due Process or traditional notions of fair play and substantial justice should not immunize an alien defendant from suit in the United States simply because each state makes up only a fraction of the substantial nationwide market for the offending product." Id. at 728. Otherwise, a foreign corporation "could commit serious torts or contract breaches without ever having enough contacts with any one forum to give those injured an opportunity to seek redress." Centronics Data Computer Corp. v. Mannesmann, A.G., supra, 432 F.Supp. at 664. Thus, although the theory has not yet been generally accepted, and there is no specific statutory authority for it, see 4 Wright & Miller, Federal Practice and Procedure : Civil § 1075 at 304, n.29 (1976), it has been adopted by several courts. See Holt v. Klosters Rederi A/S, 355 F.Supp. 354 (W.D.Mich.1973); Cryomedics, Inc. v. Spembly, Ltd., 397 F.Supp. 287 (D.Conn.1975); Centronics, supra; Amburn, supra. See also Wells Fargo and Co. v. Wells Fargo Express Company, 556 F.2d 406 (9th Cir. 1977) (aggregating contacts may be proper when a federal statute such as § 12 of the Clayton Act authorizes worldwide service of process); Moriarty, supra (decided on other grounds).
47
The present case, however, does not require us to decide whether the "aggregate contacts" theory is consistent with the due process clause of the Fifth Amendment. Even if we were to hold that nonforum contacts can properly support personal jurisdiction over an alien defendant in antitrust actions, Chrysler has failed to establish that Interclisa has sufficient contacts with the United States as a whole.
48
The test for determining the sufficiency of the nexus between the forum and the defendant was formulated by the Supreme Court in Hanson v. Denkla, 357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958):
49
The application of (the) rule will vary with the quality and nature of the defendant's activity, but it is essential in each case that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its laws. Id. at 253, 78 S.Ct. at 1239.
50
The uncontroverted affidavits submitted by Interclisa in support of its motion to dismiss establish that Interclisa has never: qualified to do business anywhere in the United States; maintained an office or warehouse, or owned or leased any real or personal property in the United States; sold any of its products in or for distribution in the United States; hired any employees or representatives in the United States; or borrowed any money in the United States.
51
Chrysler contends that Interclisa's purchases of American parts for its air-conditioning products and its use of technology originating in the United States constitute sufficient contacts for jurisdictional purposes.4 We hold that these allegations are insufficient to support the exercise of personal jurisdiction. Interclisa's alleged purchases are unrelated to the events giving rise to this litigation. Moreover, there is no indication of how many, if any, purchases were actually made, or whether such purchases represent a substantial portion of Interclisa's parts supply. Compare Crusader Marine Corp. v. Chrysler Corp., 281 F.Supp. 802 (E.D.Mich.1968) with Eastern Pre-Cast Corp. v. Giant Portland Cement Co., 311 F.Supp. 896 (E.D.Pa.1970). Under these circumstances we must conclude that Interclisa lacks sufficient minimum contacts with the United States, and that maintenance of this action against it would offend "traditional notions of fair play and substantial justice." International Shoe, supra.
52
Finally, Chrysler asserts that it should at least have been permitted to conduct discovery concerning jurisdictional facts, and that the District Court's refusal to do so was error.
53
We agree that discovery may be appropriate when a defendant moves to dismiss for lack of jurisdiction. Leasco Data Processing Equipment Corp. v. Maxwell, 468 F.2d 1326 (2d Cir. 1972). However, it is well established that the scope of discovery is within the sound discretion of the trial court. See, e. g., H. K. Porter Co., Inc. v. Goodyear Tire and Rubber Co., 536 F.2d 1115 (6th Cir. 1976). A ruling by the trial court limiting or denying discovery will not be cause for reversal unless an abuse of discretion is shown. Federal Rule of Civil Procedure 26(b); H. L. Moore Drug Exch., Inc. v. Smith, Kline and French Laboratories, 384 F.2d 97 (2d Cir. 1967).
54
Inasmuch as Chrysler failed to offer any factual basis for its allegations of conspiracy, it was well within the trial court's discretion to deny Chrysler's request for discovery. We reach the same conclusion with respect to Chrysler's allegation that Interclisa made purchases in the United States. The District Court expressly found that there is no reasonable basis to expect that further discovery would reveal contacts sufficient to support personal jurisdiction. See Budde v. Ling-Tempco-Vought, Inc., 511 F.2d 1033, 1035 (10th Cir. 1975). Although it may have been advisable for the District Court to grant Chrysler's request to conduct discovery, we cannot say that its refusal to do so was an abuse of discretion.
55
Accordingly, the judgment of the District Court is affirmed in part and reversed in part. The case is remanded for proceedings consistent with this opinion.
1
But see Mid-West Paper Products Co. v. Continental Group, Inc., 596 F.2d 573 (3rd Cir. 1979), which treats antitrust injury and standing as related but analytically distinct aspects of the "problem of determining when a person is sufficiently 'injured in his business or property by reason of anything forbidden in the antitrust laws.' " Id. at 582. See also Handler, Changing Trends in Antitrust Doctrines: An Unprecedented Supreme Court Term 1977, 77 Col.L.Rev. 979, 994-97 (1977)
2
This aspect of the court's decision was vacated on appeal to permit further discovery as to jurisdictional facts. Leasco Data Processing Equipment Corp. v. Maxwell, 468 F.2d 1326 (1972). See p. ---- infra
3
Of course, Congress or the Supreme Court may impose restrictions on the in personam power of federal courts. These restrictions may be found in venue statutes, the Federal Rules of Civil Procedure, and in the federal statutes under which the plaintiff brings his action
In this case, Chrysler claims that venue is proper under 28 U.S.C. § 1391(d), which provides that an alien may be sued in any district. It further asserts that service of process is authorized by the second clause of § 12 of the Clayton Act, notwithstanding Chrysler's inability to satisfy the venue provisions in the first clause of that section.
Section 12 provides:
Any suit, action, or proceeding under the antitrust laws against a corporation may be brought not only in the judicial district whereof it is an inhabitant, but also in any district wherein it may be found or transacts business; and all process in such cases may be served in the district of which it is an inhabitant, or wherever it may be found.
Interclisa, on the other hand, argues in its brief that the service of process provision in the second clause of § 12 is available only when the forum contact requirements of the first clause are met. We need not decide this question because, as Chrysler points out, Interclisa's failure to object to service of process or venue in its Rule 12(b) motion below constitutes a waiver of any such objection here. Federal Rules of Civil Procedure, Rule 12(h).
However, the existence of proper venue is not enough, in itself, for in personam jurisdiction to result from extra-territorial service of process. Mariash v. Morrill, 496 F.2d 1138, 1143 (2d Cir. 1974). In order to obtain personal jurisdiction, the plaintiff has the burden of establishing that the defendant has had such minimal contacts with the forum that the maintenance of the suit does not offend traditional notions of fair play and substantial justice. International Shoe, supra.
4
Chrysler further alleges that Interclisa's denials are "pregnant with admissions" of other contacts such as product sales within the United States. We decline to draw such inferences and note that the first Calzada affidavit explicitly denies that Interclisa has sold any of its products in or for distribution in the United States
| {
"pile_set_name": "FreeLaw"
} |
Jian-Guo Yu v Greenway Mews Realty L.L.C. (2015 NY Slip Op 08932)
Jian-Guo Yu v Greenway Mews Realty L.L.C.
2015 NY Slip Op 08932
Decided on December 3, 2015
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 on December 3, 2015
Friedman, J.P., Renwick, Saxe, Kapnick, JJ.
16300 116885/05 590639/10
[*1] Jian-Guo Yu, et al., Plaintiffs, ——
vGreenway Mews Realty L.L.C., et al., Defendants.
Greenway Mews Realty L.L.C., Third-Party Plaintiff-Respondent, Little Rest Twelve, Inc., Third-Party Plaintiff,
UAD Group, Third-Party Defendant-Appellant.
Clausen Miller P.C., New York (Melinda S. Kollross of counsel), for appellant.
Lester Schwab Katz & Dwyer, LLP, New York (Harry Steinberg of counsel), for respondent.
Order, Supreme Court, New York County (Martin Shulman, J.), entered January 16, 2015, which, among other things, granted third-party plaintiff Greenway's motion for summary judgment against third-party defendant UAD Group, unanimously affirmed, with costs.
There is no question that UAD was the actual party responsible for plaintiff Yu's injury, and that UAD was contractually required to indemnify third-party plaintiff Little Rest for, among other things, any "losses and expenses, including . . . attorneys' fees." Little Rest assigned to Greenway its right to contractual indemnity from UAD. Accordingly, the motion court correctly determined that UAD must pay to Greenway the settlement amount Greenway paid to plaintiff, plus interest, as well as the attorneys' fees Greenway incurred in defending Little Rest in the first-party action. UAD's assertion that it has no obligation to pay unless and until Little Rest itself makes a payment toward the settlement amount or Greenway's attorneys' fees, is unavailing.
We have considered UAD's remaining arguments and find them unavailing.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: DECEMBER 3, 2015
CLERK
| {
"pile_set_name": "FreeLaw"
} |
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 11-10587 ELEVENTH CIRCUIT
JUNE 27, 2012
Non-Argument Calendar
JOHN LEY
________________________
CLERK
D. C. Docket No. 1:10-cr-00190-ODE-AJB-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DIYIANA CLAY DAMAYO,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(June 27, 2012)
Before EDMONDSON, CARNES and FAY, Circuit Judges.
PER CURIAM:
Diyiana Clay Damayo appeals her convictions after pleading guilty to mail
fraud, 18 U.S.C. § 1341, and aggravated identity theft, 18 U.S.C. § 1028A(a) and
(b)(2). Damayo was sentenced to a total term of 132 months’ imprisonment. No
reversible error has been shown; we affirm.
On appeal, Damayo challenges the district court’s denial of her pro se
motion to withdraw her guilty plea.* We review a district court’s denial of a
motion to withdraw a guilty plea for abuse of discretion. United States v.
Izquierdo, 448 F.3d 1269, 1276 (11th Cir. 2006). We will not reverse the district
court’s decision unless its denial was “arbitrary and unreasonable.” Id.
A defendant has no absolute right to withdraw a guilty plea. United States
v. Buckles, 843 F.2d 469, 471 (11th Cir. 1988). But a defendant may do so if she
is able to show a “fair and just reason” for the request. Id. In determining whether
a defendant has met this burden, the district court considers the totality of the
circumstances surrounding the plea, including these factors: “(1) whether close
assistance of counsel was available; (2) whether the plea was knowing and
voluntary; (3) whether judicial resources would be conserved; and (4) whether the
government would be prejudiced if the defendant were allowed to withdraw his
*
Damayo also argues that the district court erred in holding her accountable for the total fraud
loss, but we have already granted the government’s motion to dismiss this claim based on
Damayo’s sentence appeal waiver. And, because Damayo fails to elaborate on her ineffective
assistance of counsel claim -- mentioned only in the “Summary of the Argument” section of her
brief -- she has waived that issue. See United States v. Gupta, 463 F.3d 1182, 1195 (11th Cir.
2006) (explaining that a party waives an issue mentioned in her opening brief when she fails to
offer substantive arguments to support it).
2
plea.” Id. at 472 (citation omitted). But once the court determines that a
defendant received close assistance of counsel and entered her plea knowingly and
voluntarily, little weight is given to the remaining two Buckles factors. See
United States v. Gonzalez-Mercado, 808 F.2d 796, 801 (11th Cir. 1987).
We see no abuse of discretion in the district court’s denial of Damayo’s
motion to withdraw her guilty plea. Under the first part of Buckles, we conclude
that Damayo received close assistance of counsel. During a hearing on Damayo’s
pro se motions for new counsel and to withdraw her guilty plea, Damayo’s lawyer
testified that he had spent between 120 and 150 hours working on Damayo’s case.
During this time, Damayo’s lawyer conducted extensive investigation and
discovery and discussed with Damayo several times the evidence against her, the
government’s position, and the potential sentencing consequences.
The record also shows that Damayo consulted with her lawyer repeatedly
during her plea hearing before answering the district court’s questions and
pleading guilty. Damayo confirmed that she had discussed the guidelines with her
lawyer, had been given adequate time to consult with her lawyer about her case,
and was satisfied with her lawyer’s representation. She has not overcome the
strong presumption that statements made during the plea colloquy are true. See
United States v. Medlock, 12 F.3d 185, 187 (11th Cir. 1994).
3
The record also demonstrates that Damayo’s guilty plea was knowing and
voluntary. In determining whether a plea was knowing and voluntary, the district
court must address three core concerns underlying Fed.R.Crim.P. 11: (1) whether
the plea was free from coercion; (2) whether defendant understood the nature of
the charges; and (3) whether defendant understood the consequences of her guilty
plea. United States v. Hernandez-Fraire, 208 F.3d 945, 949 (11th Cir. 2000).
During her plea hearing, Damayo confirmed these things: (1) that she was
pleading guilty “freely and voluntarily”; (2) that the government’s factual proffer
was accurate; (3) that she understood the rights she was giving up by pleading
guilty; and (4) that she understood the range of sentences she could face. That
Damayo had difficulty understanding -- despite her lawyer’s and the court’s
explicit and repeated instructions -- that she could be held accountable for her
codefendant’s fraudulent acts does not change our analysis. See United States v.
Hauring, 790 F.2d 1570, 1571-72 (11th Cir. 1986) (concluding that the district
court did not abuse its discretion in refusing to allow a defendant to withdraw his
guilty plea where defendant’s subjective belief that he could later withdraw his
plea was unjustified).
The timing of Damayo’s motion to withdraw her plea is also significant.
That Damayo filed her motion only after receiving her Presentence Investigation
4
Report -- a full two months after entering her guilty plea -- indicates that she was
likely motivated by her dissatisfaction with her potential sentence instead of by a
change of heart about pleading guilty. See Gonzalez-Mercado, 808 F.2d at 801
(explaining that “the time between entry of a plea and motion to withdraw the plea
may be indicative of defendant’s motivation” and that defendants should not be
permitted “to use the guilty plea as a means of testing the weight of the potential
sentence.”).
The remaining Buckles factors do not support Damayo’s argument; and
because Damayo enjoyed close assistance of counsel and entered a knowing and
voluntary plea, we need not give these factors considerable weight. See Gonzalez-
Mercado, 808 F.2d at 801. Given the totality of the circumstances, the district
court did not abuse its discretion in denying Damayo’s motion to withdraw her
plea.
AFFIRMED.
5
| {
"pile_set_name": "FreeLaw"
} |
301 F.Supp. 832 (1969)
FAIRMONT FOODS COMPANY, Plaintiff,
v.
Filomena MANGANELLO as Executrix of the Last Will and Testament of Ralph Manganello and as Guardian of the property of Betty Ann Manganello, Rita Yodice and Anna Guiliano as Executrices of the Last Will and Testament of Nicola Gentile, Marie Prezzano as Executrix of the Last Will and Testament of Joseph Prezzano, Walter W. Pegalis, Origena Pizza Crust Co., Inc., and Anthony Filiti, Defendants.
No. 68 Civ. 5201.
United States District Court S. D. New York.
June 27, 1969.
*833 Marshall, Bratter, Greene, Allison & Tucker, New York City, for plaintiff, by Morton S. Robson, New York City, of counsel.
Schulz, Fay & D'Amico, Bronx, N. Y., for Filomena Manganello, Rita Yodice and Anna Guiliano, by Joseph V. D'Amico, and Louis J. Shaw, Bronx, N. Y., of counsel.
Whalen, O'Neill & Pillon, New York City, for Marie Prezzano, by James T. Whalen, New York City, and Martin Hirsch, Mount Vernon, N. Y., of counsel.
Schachter & Wiseman, New York City, for Origena Pizza Crust Co., Inc., by *834 Samuel U. Wiseman, and Louis Schachter, New York City, of counsel.
MEMORANDUM
POLLACK, District Judge.
Motions are before the Court to dismiss or alternatively, to stay this action; or as a further alternative to direct a more definite statement of plaintiff's claims.
This is a diversity case and involves no federal question. It is unclear from the record where the case arose and consequently it is unclear what law should govern. The first Count calls upon the Court to exercise its equity powers by decreeing specific performance of an alleged agreement to cause a Canadian corporation to sell its assets to the plaintiff. The second Count seeks, as an alternative, the award of damages for breach of such agreement. The third Count seeks damages from those charged with interfering with and inducing breach of such agreement.
The facts given herein are those claimed by the parties respectively and while they are assumed, no finding thereof is made for the purposes of these motions.
According to the plaintiff, a Delaware corporation, the defendant-majority stockholders of a Canadian corporation, Origena Pizza Crust Co. of Canada, Ltd. ("Origena Canada" hereafter) who also constituted three of the five members of the board of directors and one of whom was the president, agreed in November, 1968 to cause that corporation to sell all of its assets to plaintiff, to promptly call a meeting of stockholders and at such meeting "to propose the ratification of the sale of Origena Canada's assets to plaintiff and vote their stock in favor of such sale." The stockholder defendants breached their agreement by failing and refusing to hold such a meeting.
Plaintiff further represents that the board of directors of Origena Canada voted approval of the sale; that a notice of meeting of stockholders was sent to the minority stockholders but the meeting was never held and consequently, of course, the ratification of the sale of the corporate assets to plaintiff was not proposed nor the stock of the defendant stockholders voted in favor of the sale.
The defendants contend hereon that while there may have been complex and complicated negotiations, the parties never reached an agreement for the sale to the plaintiff of all the corporate assets. Instead, about December 19, 1968, the stockholder defendants together with one of the minority stockholders optioned all of their shares in Origena Canada to the corporate defendant, a New York corporation, known as Origena Pizza Crust Co., Inc. ("Origena New York" hereafter). The principal stockholder and officer of that corporation is the defendant Anthony J. Filiti. The optionors agreed that they would not sell their stock to others; that they would not vote as directors of Origena Canada for the sale of its assets nor would they participate in any plan to sell those assets during the one year term of the option agreement. The business of the Canadian corporation was to be operated during the term of the option by Origena New York.
Some time in February, 1969, the defendant stockholders sold their shares of Origena Canada to defendant Origena New York and resigned their posts as directors and officers of the Canadian corporation.
The instant action was commenced on December 31, 1968. Origena Canada is not named as a party nor has it appeared herein. Three weeks later, on January 22, 1969 plaintiff commenced a suit against Origena Canada in the Supreme Court of Ontario, Canada, seeking specific performance of an agreement with the Canadian corporation itself for the sale of its assets to plaintiff or in the alternative, seeking damages for breach of that agreement. According to the plaintiff's papers herein, the Canadian suit may turn on whether Canadian law requires stockholder consent to such a sale. In its Canadian pleading, the plaintiff expressly "denies that it was aware *835 or that it was contemplated when the agreement was concluded, that the agreement was to be subject to shareholder approval and that the Plaintiff pleads that the agreement is binding on the Defendant [Origena Canada] regardless of whether or not it has received shareholder approval".
I.
The relief which the plaintiff demands under the first Count of the complaint is to declare null and void the sale by the defendant stockholders of their stock of Origena Canada to Origena New York and Anthony Filiti and to direct the latter two to reassign and transfer to the defendant stockholders all of the stock of Origena Canada purchased by them subsequent to the agreement with the plaintiff; to direct the defendant stockholders to call a meeting of the shareholders of the Canadian corporation in accordance with its by-laws; to direct such defendants at such meeting to propose ratification of the agreement to sell the Canadian corporation's assets to the plaintiff; and to direct such defendants to vote their stock at such meeting to ratify such agreement.
In the alternative, under the second Count, plaintiff demands judgment against the shareholder defendants for their alleged breach of contract in a sum of money claimed as the value of the breach.
As a general rule a Court other than the domiciliary Court will decline to interfere with corporate administration of a non-joined foreign corporation and will decline to direct or control the internal conduct of corporate meetings and the votes of directors or stockholders thereat.
"But it is well settled that jurisdiction in any case will be declined either in the absence of jurisdiction in the strict sense or where a determination of the rights of litigants involves regulation and management of the internal affairs of the corporation dependent upon the laws of the foreign State or where the court in which jurisdiction is sought is unable to enforce a decree if made or where the relief sought may be more appropriately adjudicated in the courts of the State or country to which the corporation owes its existence."
(Langfelder v. Universal Laboratories, 293 N.Y. 200, 204, 56 N.E.2d 550, 552, 155 A.L.R. 1226)[*]
Plainly, in this suit at the instance of a foreign corporation plaintiff and in the absence of Origena Canada, a party whose presence is indispensable in respect of a direction to hold and conduct a corporate meeting, it would be inappropriate for this Court to retain jurisdiction of the first Count of the complaint.
The law of Ontario, Canada, would have to be resorted to for guidance on matters of the corporate administration of such a meeting and the forum court would have to yield thereto leaving no advantage to be gained by exercising jurisdiction here.
A further reason for deferring to the domiciliary court may lie in the serious doubt of the sufficiency of the claim in the first Count under New York law.
This Court is bound to determine the law applicable in this diversity case in accordance with the choice of law rules of the State of New York. Strubbe v. Sonnenschein, 299 F.2d 185, 188, 97 A.L.R.2d 1386 (2d Cir. 1962); Hausman v. Buckley, 299 F.2d 696, 700, 93 A.L.R. 2d 1340 (2d Cir. 1962). The New York courts in this contract action would apply the law of "the jurisdiction `most intimately concerned with the outcome of the particular litigation'" that is, the so-called "contacts" theory of choice of law. Auten v. Auten, 308 N.Y. 155, 161, 124 N.E.2d 99, 102, 50 A.L.R.2d 246 (1954).
There is no mention in the papers before the Court where the negotiations between plaintiff and defendant stockholders *836 took place, where the alleged contract was executed, or where the performance of its terms was allegedly to occur. Counsel for one of the defendants at oral argument hazarded his guess that "[a]s far as I can determine, all negotiations probably took place in Canada * * *"; but on such a readily ascertainable matter probabilities are not enough. As the facts stand now, New York and Canada are equally likely loci of the purported agreement.
"Though new Rule 44.1 [Fed.R.Civ.P.] establishes that courts may, in their discretion, examine foreign legal sources independently, it does not require them to do so in the absence of any suggestion that such a course will be fruitful or any help from the parties."
Bartsch v. Metro-Goldwyn-Mayer, Inc., 391 F.2d 150, 155, n. 3 (2d Cir.), cert. den. 393 U.S. 826, 89 S.Ct. 86, 21 L.Ed. 2d 96 (1968).
Under New York law, there is a strong probability that the contract alleged in the complaint is illegal as constituting a sale of a vote and if so, it would not be enforced. New York Business Corporation Law, McKinney's Consol. Laws, c. 4, §§ 609(e), 620, 621. Although these statutes permit voting agreements between shareholders, the plaintiff herein is an outsider, not a shareholder and asserts an agreement with shareholders to vote their stock as required by an outsider. Such an agreement does not fall within any of the authorized categories and is void. Matter of Glen Salt Co., 17 App.Div. 234, 244, 45 N.Y.S. 568 (3rd Dept.), aff'd 153 N.Y. 688, 48 N.E. 1104 (1897).
"There of course is no doubt that it is illegal for a stockholder of a corporation to sell his vote, and if it clearly appeared upon the face of the complaint that plaintiff was suing for the agreed purchase price on such a sale the complaint could be dismissed upon motion * * *." Morgenstern v. Cohon, 285 App.Div. 1124, 140 N.Y.S.2d 427 (First Dept. 1955) (adopting the language of the Supreme Court, New York County at Special Term, January 27, 1955; and see opinion per Rabin, J., dissenting, 285 App.Div. at pp. 1124-1125, 140 N.Y.S.2d 427); Morgenstern v. Cohon, 2 N.Y.2d 302, 160 N.Y.S.2d 633, 141 N.E.2d 314 (1957) (by implication), rev'g A.D.2d 330, 149 N.Y.S.2d 766 (1st Dept. 1956).
An action is pending in Canada by the plaintiff to compel the transfer of the very corporate assets sought by this suit. That action will or can determine whether the plaintiff is entitled to the relief sought herein; of course, it may not.
The congeries involved in directing the performance of corporate acts so as to satisfy the law of the domicile of a foreign corporation, particularly in the absence from the suit of the corporation which must convene and conduct the corporate meeting sought, are sufficiently troublesome to make it advisable in the efficient and just administration of the court's business to apply the doctrine of noninterference with a matter of corporate administration. Rogers v. Guaranty Trust Co., 288 U.S. 123, 53 S.Ct. 295, 77 L.Ed. 652 (1933).
The Supreme Court in Koster v. Am. Lumbermens M. C. Co., 330 U.S. 518, 525-526, 67 S.Ct. 828, 91 L.Ed. 1067 (1947), has appositely said in a diversity suit seeking equitable relief which faced dismissal for reasons of forum non conveniens:
"Thus, such a litigation brings to the court more than an ordinary task of adjudication; it brings a task of administration; * * *."
Quoting Rogers v. Guaranty, supra, Koster said (p. 528, 67 S.Ct. p. 834):
"`But it safely may be said that jurisdiction will be declined whenever considerations of convenience, efficiency and justice point to the courts of the state of the domicile as appropriate tribunals for the determination of the particular case.' 288 U.S. at pages 130-131, 53 S.Ct. 295. There was disagreement in that case as to whether the facts warranted exercise of the discretion but little as to the general *837 rule by which discretion is governed and none as to existence of the power of the court."
II.
The second Count stands on a different footing. It seeks only money damages for breach of the alleged contract whose validity may involve the resolution of a question of conflict of laws. The determination of a conflict of laws question does not deprive a Court of subject matter jurisdiction or spell interference with the internal administration of a foreign corporation or justify dismissal on forum non conveniens. Williams v. Green Bay & Western R. Co., 326 U.S. 549, 66 S.Ct. 284, 90 L.Ed. 311 (1946); Meredith v. Winter Haven, 320 U.S. 228, 64 S.Ct. 7, 88 L.Ed. 9 (1943).
Moreover, the present application is not sufficiently developed so as to be treated as one for summary judgment under Rules 12(b) (6) and 56, Fed.R.Civ.P. As presented at this time, the conflict between the plaintiff's Canadian pleading and the complaint herein on the matter of shareholder approval, raises an issue of fact which the Court cannot resolve merely on the papers.
Even though it is initially assumed that Canadian law is the same as that of New York, which assumption may spell the insufficiency in law of the contract, supra p. 836 any party may challenge that assumption at any stage of the litigation simply by giving "reasonable written notice" of his or its intent to raise the issue. Rule 44.1, Fed.R.Civ.P. Consequently, it is open to the plaintiff to show if it can, (1) that the facts would lead the New York courts (under the "contact" theory) to apply Canadian law, (2) that the contract as alleged is permissible and enforceable under Canadian law, and (3) that the New York courts would not find such Canadian law so contrary to their own public policy that they would refuse to enforce it. Compare Sullivan v. Parkes, 69 App.Div. 221, 230, 74 N.Y.S. 787 (1st Dept.1902) with Loucks v. Standard Oil Co., 224 N.Y. 99, 110-112, 120 N.E. 198 (1918).
III.
Defendants have also moved pursuant to Rule 12(b) (3) to dismiss the second and third Counts for improper venue, relying on the doctrine of forum non conveniens. Surprisingly enough, whether the New York doctrine of forum non conveniens should be applied in this diversity case or whether the federal doctrine controls is evidently still an open question. Thomson v. Palmieri, 355 F.2d 64, 66-67 (2d Cir. 1966); but cf. Note, 58 Col.L.Rev. 234, 238-241 (1958). In the instant suit, however, the application of either the State or the federal doctrine leads to the same conclusion: the forum chosen by the plaintiff cannot be disturbed.
Plaintiff has alleged hereon that the defendants are citizens and residents of the State of New York and are amenable to process only within this state. Therefore the doctrine of forum non conveniens is not applicable to the second and third Counts. In Gulf Oil Corp v. Gilbert, 330 U.S. 501, 506-507, 67 S.Ct. 839, 842, 91 L.Ed. 1055 (1946), the Supreme Court said, in respect of the federal doctrine:
"In all cases in which the doctrine of forum non conveniens comes into play, it presupposes at least two forums in which the defendant is amenable to process; the doctrine furnishes criteria for choice between them."
Moreover, even were the defendants amenable to process in Ontario, Canada, they have not demonstrated such a compelling case of inconvenience as to require dismissal under the federal doctrine:
"Whether jurisdiction should be declined is determined by balancing conveniences, but the plaintiff's choice of forum will not be disturbed unless the balance is strongly in favor of the defendant. * * * An American citizen does not have an absolute right under all circumstances to sue in an American Court. * * * However, where, as here, application of the doctrine of forum non conveniens would force an American citizen to seek redress *838 in a foreign court, courts of the United States are reluctant to apply the doctrine."
Vanity Fair Mills, Inc. v. T. Eaton Co., 234 F.2d 633, 645-646 (2d Cir. 1956); Maybruck v. Haim, 290 F.Supp. 721, 725 (S.D.N.Y.1968); Ciprari v. Servicos Aereos Cruzeiro do Sul, S. A., 232 F.Supp. 433, 443 (S.D.N.Y.1964).
Under the New York doctrine of forum non conveniens, a New York court is bound to entertain a tort claim (whether arising in the State or elsewhere) when either the plaintiff or the defendant is a resident of the State. de la Bouillerie v. de Vienne, 300 N.Y. 60, 89 N.E.2d 15, 48 A.L.R.2d 798 (1949); Varkonyi v. S. A. Varig, 22 N.Y.2d 333, 344, 292 N.Y.S.2d 670, 239 N.E.2d 542, n. 3 (1968) (separate opinion, per Keating, J., concurring in part and dissenting in part).
Accordingly, under either the federal or the State doctrine, plaintiff, if its claims are sufficient in law, is entitled to litigate its second and third claims in this Court.
IV.
Plaintiff's third Count for inducing breach of the agreement of the stockholder defendants states a tort claim against defendants Origena New York and Anthony J. Filiti which is cognizable under New York law. Hornstein v. Podwitz, 254 N.Y. 443, 173 N.E. 674, 84 A.L.R. 1 (1930); Consolidated Tel. Answ. Serv. Corp. v. We-Answer Phones, Inc., 22 A.D.2d 785, 254 N.Y.S.2d 170 (1st Dept. 1964); State Enterprises, Inc. v. Southridge Cooperative, Section 1, Inc., 18 A.D.2d 226, 238 N.Y.S.2d 724 (1st Dept. 1963).
The trier of facts may find that the negotiations between plaintiff and the shareholder defendants never reached the stage of contractual agreement and yet, nonetheless, might find these two defendants liable to plaintiff for tortious interference with pre-contractual relations. "A cause of action has also been recognized where a party would have received a contract but for the malicious, fraudulent and deceitful acts of a third party * * *." Union Car Advertising Co. v. Collier, 263 N.Y. 386, 401, 189 N.E. 463, 469 (1934); Williams & Co. v. Collins Tuttle & Co., 6 A.D.2d 302, 307, 176 N.Y.S.2d 99 (1st Dept. 1958). Moreover, where a contract exists, it has been stated by New York courts that:
"It is not material whether the contract of the plaintiff with Seagraves & Wilson was binding upon them or not, the evidence established beyond all question that they would have fulfilled it but for the false and fraudulent representations of the defendants."
Benton v. Pratt, 2 Wend. 385, quoted and followed in Rice v. Manley, 66 N.Y. 82 (1876)].
V.
Origena New York moves, in addition, pursuant to Rules 12(b) (7) and 19 to dismiss the third Count for failure to join an indispensable party, namely Origena Canada. Under Rule 19, the initial question is whether Origena Canada is a necessary party (one who "shall be joined"); if it is, the next question is whether, in the absence of that party, the action must be dismissed ("the absent person being thus regarded as indispensable"). See, generally, Provident Tradesmens Bank & Trust Co. v. Patterson, 390 U.S. 102, 88 S.Ct. 733, 19 L.Ed. 2d 936 (1968).
It is obvious that complete relief without risk of multiple or conflicting liability can be accorded between the parties presently before the Court. A further factor to be considered, under Rule 19(a) (2) (i), is whether adjudication of the third Count without the presence of Origena Canada will "as a practical matter impair or impede" the ability of the latter to defend in the Canadian litigation. This is but one of several criteria applicable; and, in view of the fact that plaintiff, in order to recover under the third Count, may not have to prove either the existence of an agreement or the existence of an enforceable *839 agreement in respect of the sale of Origena Canada's assets, there has been no showing of potential and probable prejudice hereon sufficient to warrant the relief requested.
VI.
Origena New York further moves for an order staying the proceedings in this suit pending the outcome of the Canadian litigation, which was commenced three weeks after the complaint herein was filed. It contends that plaintiff has created a multiplicity of suits in the nature of a harassment and that the instant suit is brought, in reality, against the potential witnesses in the Canadian litigation.
There is no rule of law preventing two in personam suits involving the same parties, even if the claims and issues are identical, from proceeding concurrently in different courts. Kline v. Burke Constr. Co., 260 U.S. 226, 43 S.Ct. 79, 67 L.Ed. 226 (1922), Ferguson v. Tabah, 288 F.2d 665, 672 (2d Cir. 1961). The granting of a stay under such circumstances is a matter of judicial discretion depending upon an equitable and practical assessment of the relevant circumstances. Ferguson v. Tabah, 288 F.2d 665, 672 (2d Cir. 1961). However, where, as here, neither the issues nor the parties in the two suits are identical, there is no justification for this Court to intervene.
VII.
Alternatively, Origena New York moves pursuant to Rule 12(e), Fed. R.Civ.P., for a more definite statement of the complaint. Rule 12(e) "is designed to strike at unintelligibility rather than want of detail." The motion will be denied if the complaint "fairly notifies the opposing party of the nature of the claim. * * *" 2A Moore's Federal Practice ¶ 12.18 at p. 2389. The evidentiary details sought by this application can more appropriately be obtained through pre-trial discovery procedures. In these circumstances, "there is no requirement under the Rules that plaintiff provide a bill of particulars" in its complaint. Michael v. Clark Equipment Co., 380 F.2d 351, 352 (2d Cir. 1967).
VIII.
Accordingly, the first Count of the complaint is dismissed and defendant's motions directed toward the second and third Counts are, in all respects, denied.
Settle order on notice returnable not later than July 3, 1969. Counsel are to confer and agree if possible on the form of the appropriate order to be submitted.
NOTES
[*] See, Weiss v. Routh, 149 F.2d 193, 195, 159 A.L.R. 658 (2d Cir. 1945).
| {
"pile_set_name": "FreeLaw"
} |
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
THOMAS MAULDIN, )
)
Appellant, )
)
v. ) Case No. 2D14-458
)
STATE OF FLORIDA, )
)
Appellee. )
___________________________________ )
Opinion filed August 29, 2014.
Appeal pursuant to Fla. R. App. P.
9.141(b)(2) from the Circuit Court for Polk
County; Michael E. Raiden, Judge.
Crystal McBee Frusciante, Jupiter, for
Appellant.
No appearance for Appellee.
LaROSE, Judge.
Thomas Mauldin appeals the summary denial of his motion for
postconviction relief. See Fla. R. Crim. P. 3.850. He is serving a forty-year prison
sentence for lewd and lascivious molestation of a victim less than twelve years old. See
§ 800.04(5)(b), Fla. Stat. (2008). We affirmed his judgment and sentence on direct
appeal. Mauldin v. State, 61 So. 3d 1125 (Fla. 2d DCA 2011) (table). Our mandate
issued on or about June 15, 2011.
On June 6, 2013, Mr. Mauldin, through counsel, signed and readied for
mailing his motion for postconviction relief to the clerk of the court for filing.1 Finding the
motion facially sufficient, the postconviction court ordered the State to respond.
Adopting the State's response, the postconviction court denied Mr. Mauldin's motion on
the merits.2 We affirm the postconviction court's order as to claims 2, 4, 5, 6, and 7.
Because claims 1 and 3 were legally insufficient, however, the postconviction court
should have given Mr. Mauldin an opportunity to amend those claims. See Spera v.
State, 971 So. 2d 754 (Fla. 2007). Accordingly, we affirm in part, reverse in part, and
remand with directions for the postconviction court to allow Mr. Mauldin the opportunity,
if he can in good faith, to amend claims 1 and 3.
Affirmed in part, reversed in part, and remanded.
SILBERMAN and VILLANTI, JJ., Concur.
1
Although the State and the postconviction court deemed the motion
untimely, we cannot agree. The last day on which Mr. Mauldin could have filed his
motion was on or about June 15, 2013. His counsel signed the motion on June 6, 2013,
as reflected in the certificate of service. In a motion for rehearing entered after denial of
Mr. Mauldin's motion on the merits as well as for untimeliness, counsel submitted an
affidavit attesting to her having mailed the motion on June 7, 2013. Counsel has no
explanation as to why the motion was not docketed until June 25, 2013. It is clear,
however, that Mr. Mauldin retained counsel to represent him for postconviction
purposes. See Fla. R. Crim. P. 3.850(b)(3) (extending time when retained counsel,
through neglect, fails to timely file postconviction motion). We treat the motion as timely
filed.
2
Interestingly, the postconviction court initially concluded that Mr.
Mauldin's motion asserted facially sufficient claims for relief. Upon receipt of the State's
response, the postconviction court apparently changed its mind and concluded that
some of the claims were facially deficient.
-2-
| {
"pile_set_name": "FreeLaw"
} |
238 Ind. 667 (1958)
154 N.E.2d 107
SCOTT, BURTON
v.
STATE OF INDIANA.
No. 29,667.
Supreme Court of Indiana.
Filed December 5, 1958.
*668 Sam Blum, Albert W. Ewbank, both of Indianapolis, and J. Byron Hayes, of Fort Wayne, for appellants.
Edwin K. Steers, Attorney General, and Owen S. Boling, Assistant Attorney General, for appellee.
ARTERBURN, J.
The appellants Scott and Burton were charged with conspiracy to commit a burglary of the Grand Leader Store in Fort Wayne and in a separate affidavit with a like offense as to the Wolf and Dessauer Company. The two cases were tried together. The appellants were found not guity of the charge involving the Wolf and Dessauer Company and guilty of the charge of conspiracy to burglarize the Grand Leader Store.
The appellants have properly presented for our review the question of the sufficiency of the evidence *669 to sustain the verdict. For that purpose we recite the evidence from the State's point of view:
Early in the afternoon of May 8, 1956, one Homer J. Frownfelter, a locksmith, was in his place of business at 138 West Wayne Street in the city of Fort Wayne, Indiana, when one of the appellants, later identified as Burton, came into his place of business and asked him if he could make a key for a cylinder lock without disturbing the combination and he was informed he could. Burton then left the shop and in about 15 minutes he came back with a cylinder lock. The locksmith was busy with other customers and he was required to wait his turn. As soon as it could be done the locksmith made the key and charged Burton $1.50 for the work but the latter gave him $2.00. Burton told him that the wanted the key as his wife had gone away and he did not have a key.
About an hour and a half later the same afternoon, the appellant Scott, came in with another cylinder lock and asked the locksmith if he could make a key for the lock without disturbing the combination. The locksmith told him he could and proceeded to make the key. When it was finished, Scott paid him $2.00 and left saying, "keep it all." He voluntarily paid $2.00 and walked out. This was a Yale lock of special series and was identified by special marks on the back side. These two locks were identified at the trial as the State's Exhibits 1 and 2.
The locksmith became suspicious and followed Scott from his shop to a point in the 900 block on Calhoun Street opposite Wolf and Dessauer's front door. At this point he lost Scott in the traffic and returned to his place of business and called the police department. Two detectives came immediately and while it was yet light the locksmith took the officers down to the *670 place where he had last seen Scott. As they passed the Earl Groth Department Store, the locksmith saw Scott standing in front of the store and pointed him out to the officers. About this time the other appellant, Scott, walked up to Burton and said something and then walked back in the entrance. At this time the officers identified themselves and one took Burton and the other took Scott for questioning. No arrest was made at that time.
Scott was asked what he was doing in Fort Wayne and he told the officer that they had gotten into town about 3 P.M. and they were to pick up some lady friends and that they were just passing through town. The appellants were asked if they would accompany the officers to the station and they said they would. They took them to the station in a police car and they sat in the back seat. While one of the officers drove the car, the other sat in the front seat and watched the appellants.
As they were going to the station, this officer observed Burton had a key in his hand and that he slipped it down along side of the cushion in the car. They continued on to the police station. There the appellants were taken out of the car and the officer, King, went back and obtained the key from the place where he saw Burton place it. When shown the key, which was marked with the name of the shop on it, Burton denied any knowledge of it. He was asked if he had the key made and he said he didn't know anything about it.
The key which the officers obtained from Burton was turned over to two other detectives to find the lock to which it fit. On the following day, these detectives with the help of the locksmith made a search of the locks on the buildings in the immediate vicinity where the appellants were apprehended and they found a *671 lock at the Grand Leader Store in which it fit with evidence tending to show the cylinder had been recently disturbed. That lock was removed and identified by the locksmith as being the lock for which he made the key as heretofore shown. They also located the second lock and it was identified by the locksmith as the lock for which he made the second key but that key was not found.
Neither party in this case is charged with actually committing the crime of burglary, since no burglary was committed. However, it is not an essential to the conspiracy charged, that the crime of burglary be proved. Chappell v. State (1940), 216 Ind. 666, 25 N.E.2d 999; Shonfeld v. State (1942), 219 Ind. 654, 40 N.E.2d 700.
The essence of the crime charged is the conspiracy. It cannot be committed by one person alone. There must be a concert of action in a common purpose by two or more persons.
We have said in Robertson v. State (1952), 231 Ind. 368, 370, 108 N.E.2d 711, p. 712,
"`In order to be a conspiracy there must be an intelligent and deliberate agreement to commit the offense charged. It is sufficient if the minds of the parties meet understandingly to bring about an intelligent and deliberate agreement to do the acts and commit the offense, though the agreement is not manifest by any formal words. Concurrence of sentiment and co-operative conduct in the unlawful and criminal enterprise are the essential ingredients of criminal conspiracy. There must be an agreement and there must be evidence to prove the agreement directly, or such a state of facts that an agreement may be legally inferred. Conspiracies cannot be established by a mere suspicion. Evidence of mere relationship or association between the parties does not show a conspiracy.'"
*672 We feel the Robertson Case is determinative of the question here. There is a definite lack of evidence of any concerted plan or joint purpose of both appellants. There is no evidence of any agreement between them to commit either or both burglaries together, although there may be circumstantial evidence that each intended to burglarize the store for which he obtained a key by himself. The evidence does not show they went together to have either key made. The most the evidence shows is an association and that they were found standing together on the street. Mere association alone, without further evidence of some agreement or concerted action directed toward the common purpose of the alleged crime to be attempted is not sufficient to support a conviction of a conspiracy.
As said in other like cases before this court, the most that can be said of the evidence in this record is that it tends to establish a suspicion of guilt, particularly as to Burton who was found with the key he had made. Robertson v. State (1952), 231 Ind. 368, 108 N.E.2d 711; Mattingly v. State (1957), 236 Ind. 632, 142 N.E.2d 607; Taylor, Bryant v. State (1956), 235 Ind. 126, 131 N.E.2d 297.
The finding of a key which Burton had made and then which he attempted to hide in the seat of the police car, may be circumstantial evidence of his intentions to burglarize the particular building where the key fit, but it does not connect the other appellant, Scott, with such a plan.
As we said previously, it takes more than one person to constitute a conspiracy. So far as the charge of which the appellants were convicted (The Leader Store Case), only one person, Burton, is implicated. As to the other case the appellants were found not guilty of the offense charged.
*673 There is a failure of proof as to the crime of conspiracy as charged.
The judgment is reversed with directions to grant a new trial.
Landis, C.J., Achor, Emmert, Bobbitt, JJ., concur.
NOTE. Reported in 154 N.E.2d 107.
| {
"pile_set_name": "FreeLaw"
} |
618 F.2d 782
dAlamo Express, Inc.v.Interstate Commerce Commission
80-1072
UNITED STATES COURT OF APPEALS Fifth Circuit
5/13/80
1
I.C.C.
PETITION TO DENJOIN DENIED
| {
"pile_set_name": "FreeLaw"
} |
92 P.3d 162 (2004)
2004 UT App 149
J. Rodney DANSIE, Plaintiff and Appellant,
v.
Hi-Country Estates Homeowners Association, a Utah non-profit corporation, Defendant and Appellee.
No. 20030088.
Court of Appeals of Utah.
May 6, 2004.
*163 George A. Hunt, Williams & Hunt, Salt Lake City, for Appellant.
Dale F. Gardiner, Parry Anderson & Gardiner, Salt Lake City, for Appellee.
Before BENCH, Associate P.J., GREENWOOD and JACKSON, JJ.
OPINION
JACKSON, Judge:
¶ 1 J. Rodney Dansie appeals the district court's findings and conclusions regarding the existence of an easement over subdivision property belonging to Hi-Country Estates Homeowners Association (Hi-Country), a *164 Utah non-profit corporation. We reverse in part, affirm in part, and remand in part.
BACKGROUND
¶ 2 Dansie owns two forty-acre parcels adjacent to the Hi-Country subdivision. Dansie initially filed suit more than ten years ago. In his complaint, he alleged various theories supporting the existence of an easement over Hi-Country's roadways. Hi-Country denied the existence of an easement. However, during the course of the proceedings, Hi-Country never denied Dansie's right to use the roadways. Instead, it maintained that Dansie's parcels were subject to Hi-Country's covenants and bylaws. It claimed that Dansie owed Hi-Country for past-due fees, but that as a member of Hi-Country, Dansie was entitled to ingress and egress over the subdivision roads as are other association members. After trial, the district court determined Dansie's parcels were, in fact, subject to Hi-Country covenants and bylaws, and entered judgment for past-due fees. Thus, the district court did not reach a determination of Dansie's claim of an easement, ruling the issue was moot.
¶ 3 In Dansie v. Hi-Country Estates Homeowners Assoc., 1999 UT 62, ¶ 26, 987 P.2d 30 (Dansie I), the Utah Supreme Court reversed the district court's determination that Dansie's parcels are subject to Hi-Country's covenants and bylaws. It remanded the case "for determination of Dansie's claim of an easement across the Association property" because the issue was no longer moot. Id. at ¶ 29.
¶ 4 On remand, Dansie claimed that Hi-Country had, before Dansie I, stipulated to the existence of an easement. He argued that because Hi-Country had never disputed Dansie's right to use of the Hi-Country roadways, Hi-Country therefore stipulated to an easement, and that became the law of the case. The district court agreed, concluding that Hi-Country stipulated to the existence of an easement. In its memorandum decision dated 27 October 2000, the district court referred to various statements and writings by Hi-Country's counsel to the effect that Hi-Country never disputed, and in fact the parties stipulated to, Dansie's right to access Hi-Country's roadways. The district court ruled that stipulation amounted to an express easement. However, the district court determined that the easement is personal to Dansie, and is not appurtenant to his parcels.
¶ 5 The district court then limited the scope of the easement to Dansie's historic use, which amounted essentially to recreational ingress and egress, and some access for grazing. Finally, the district court apportioned to Dansie costs for maintaining the roadways. It determined that Dansie was liable for maintenance costs on a per-lot basis in the amount of $2,906.
ISSUES AND STANDARDS OF REVIEW
¶ 6 Dansie challenges the district court's determination that the easement is in nature personal to Dansie. We review all conclusions of law for correctness, granting the district court no deference. See Orton v. Carter, 970 P.2d 1254, 1256 (Utah 1998).
¶ 7 Dansie further challenges the district court's findings regarding what the parties intended to be the scope of the easement. We review all findings of fact for clear error, granting the district court great deference in its review of the evidence. See Utah R. Civ. P. 52(a) ("Findings of fact, whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses."). "A trial court's factual finding is deemed `clearly erroneous' only if it is against the clear weight of the evidence." Doelle v. Bradley, 784 P.2d 1176, 1178 (Utah 1989) (citation omitted).
¶ 8 Finally, Dansie challenges the district court's conclusion that Dansie is obligated to pay for maintenance of the easement on a per-lot basis and on equal footing with the Hi-Country subdivision lot owners. This is an issue of law that we review for correctness. See Orton, 970 P.2d at 1256.
ANALYSIS
I. Existence of the Easement
¶ 9 The district court determined that Hi-Country stipulated to the existence of an *165 easement in favor of Dansie. That stipulation, according to the district court, was contained in a letter from Hi-Country's counsel, and statements in open court. In the letter and statements, Hi-Country declared that it did not dispute Dansie's right of access, so long as Dansie's land was subject to the CC & Rs. Further, the trial court took evidence to determine the parties' intent regarding the nature and scope of the easement. It ultimately determined that the easement is personal in nature, and thus does not run with the land. It also limited the scope of the easement to prior use (i.e., ingress and egress for recreation, and limited grazing access).
¶ 10 Hi-Country did not appeal the district court's determination of the existence of an easement. It is axiomatic that we will presume the correctness of lower court rulings that neither party challenges on appeal. Accordingly, we proceed as if Hi-Country made an express stipulation to the existence of an easement.
A. Nature of Easement: In Gross or Appurtenant?
¶ 11 The district court determined the easement to be in gross,[1] rather than an easement appurtenant.
An "easement appurtenant," sometimes called an easement proper, ... "is a privilege which the owner of one tenement has the right to enjoy, in respect to that tenement, in or over the tenement of another person." ...
"The existence of an easement [appurtenant] involves the idea of two distinct tenements: a dominant estate, to which the right is accessorial; and a servient estate, upon which it is a burden or charge."
...
"An easement in gross is a mere personal interest in the real estate of another, and is not assignable or inheritable. It dies with the person, and it is so exclusively personal that the owner by right cannot take another person in company with him."
The principal distinction between the two classes of easements seems to be that in the easement appurtenant there must be a dominant tenement, while no such element exists in an easement in gross.
Ernst v. Allen, 55 Utah 272, 184 P. 827, 829 (1919) (citations omitted); see also Crane v. Crane, 683 P.2d 1062, 1064 (Utah 1984) ("Since the claimed easement is not appurtenant to any particular dominant estate (none of the plaintiffs owns land adjoining defendants), it is an easement in gross."). Because easements in gross are generally disfavored, see 25 Am.Jur.2d Easements and Licenses § 12 (1996); 28A C.J.S. Easements § 12 (1996), "an easement will never be presumed as personal when it may fairly be construed as appurtenant to some other estate." 25 Am.Jur.2d Easements and Licences § 12; see also 28A C.J.S. Easements § 12 ("[A] strong presumption exists in favor of an easement being appurtenant, and the courts ... will favor an easement appurtenant over one in gross.").
¶ 12 The easement at issue here is an "easement appurtenant [because] there [is] a dominant tenement." Ernst, 184 P. at 829. The law presumes the easement to be appurtenant and to run with the land. Nothing in the record indicates the parties intended the easement to be personal in nature to Dansie. Thus, the district court erred in determining the easement to be in gross, and we reverse that ruling. We conclude instead that the easement is appurtenant to Dansie's land.
B. Scope of Easement
¶ 13 In its unchallenged determination that Hi-Country stipulated to the existence of an easement, the district court treated the easement as express.[2] Thus, the stipulation acted as a contract between the *166 parties. The district court treated that contract as one whose terms are ambiguous regarding the easement's scope, because there was no express delineation of what the parties intended the scope to be.
¶ 14 If a term to a "contract is ambiguous such that the intentions of the parties cannot be determined by the plain language of the agreement, `extrinsic evidence must be looked to in order to determine the intentions of the parties.'" WebBank v. American Gen. Annuity Serv. Corp., 2002 UT 88, ¶ 19, 54 P.3d 1139 (citation omitted). Further, "[i]f a contract is ambiguous, the court may consider the parties' actions and performance as evidence of the parties' true intention." Id. The district court looked to the only evidence available that would indicate what the parties intended. Specifically, the court looked to Dansie's prior use of the easement to determine the scope to which Hi-Country acquiesced. Dansie, on the other hand, offered no evidence that the parties intended anything other than the status quo.
¶ 15 Dansie argues that the district court erred by limiting the easement to its historic use. He claims that there was in fact no evidence that the parties intended to limit the easement's scope as the district court did. Instead, he argues that his claim for an unlimited easement, as well as Hi-Country's statements that Dansie should have unlimited access on par with the other members of the homeowners association, stands as clear evidence of the parties' intent for Dansie to have unlimited access to the easement. These pieces of "evidence," however, are unavailing. Dansie's claim for an unlimited easement is entirely self-serving and is not evidence of the parties' intent at the time of the stipulation, and Hi-Country's statements are taken completely out of context. Thus, the record is devoid of any evidence that would support Dansie's position.
¶ 16 Regardless of the evidentiary or logical arguments for a broader or narrower scope, however, Dansie has not properly challenged the trial court's findings regarding the parties' intent. "When ambiguity exists [in a contract], the intent of the parties becomes a question of fact." Id. at ¶ 22 (quotations and citation omitted).
When an appellant asserts that the evidence is insufficient to support the lower court's findings of fact, "we do not weigh the evidence de novo." Rather, we accord great deference to the lower court's findings.... Moreover, "`to mount a successful challenge to the correctness of a trial court's findings of fact, an appellant must first marshal all the evidence supporting the finding and then demonstrate that the evidence is legally insufficient to support the findings even viewing it in the light most favorable to the court below.'"
Hogle v. Zinetics Med., Inc., 2002 UT 121, ¶ 16, 63 P.3d 80 (citations omitted).
¶ 17 Dansie has not demonstrated "that the evidence is legally insufficient to support the findings," id. (quotations and citation omitted), for at least two reasons. First, he has not marshaled the evidence that supports the finding. Second, the only evidence in the record regarding the intended scope of the easement is Dansie's prior use. This is sufficient evidence to support the district court's finding, and we thus do not disturb it on appeal.[3] Thus, we affirm the district court's rulings regarding the scope of the easement.
II. Costs of Road Maintenance
¶ 18 "Absent any agreement on the question of maintenance of a private way, the burden of upkeep should be distributed between dominant and servient tenements in proportion to their relative use of the road, as nearly as such may be ascertained." Aspen Acres Ass'n v. Seven Assocs., Inc., 29 *167 Utah 2d 303, 508 P.2d 1179, 1183 (1973) (internal quotes and citation omitted).
¶ 19 In its memorandum decision determining that Dansie is obligated to pay a portion of the maintenance of the roadways, the district court acknowledged the rule in Aspen Acres Ass'n that costs should be divided proportionately. However, in its memorandum decision that actually determined the amount Dansie owed for maintenance, the district court did not base its ruling on Dansie's proportionate use. Instead, it determined that Dansie should pay for use of the easement on a per-lot basis, to be calculated in the same way lot owners in the Hi-Country homeowners association are assessed. Dansie does not challenge the district court's determination that he is obligated to pay some portion of the maintenance of the roadways covered by the easement. Instead, he challenges the district court's determination that he may be assessed on a per-lot basis.
¶ 20 A per-lot assessment may be a fair method of apportioning the costs of maintaining rights of way between several lot owners, given the parties' uncertain and changing uses of the roadways from day to day and year to year. However, that method is ordinarily agreed upon by the affected lot owners in a homeowners association's bylaws, CC & Rs, or other multilateral agreement. Dansie's ownership of his property is not subject to any such multilateral agreement with Hi-Country or its composite members. Further, per-lot assessments are not the default rule for determining costs. Rather, pursuant to Aspen Acres Assoc., the district court must apportion the maintenance costs according to the parties' "relative use of the road, as nearly as such may be ascertained." Id.
¶ 21 A per-lot assessment, such as the district court applied here, does not apportion costs with reference to Dansie's "relative use of the road." Id. In fact, it appears from the record that the district court made no inquiry regarding Dansie's ongoing use of the road. Thus, we remand this issue for the trial court to consider evidence of Dansie's proportionate use of the roadways, and to determine the proportionate maintenance costs pursuant to that use.
CONCLUSION
¶ 22 The district court erred by concluding the easement is personal in nature. Instead, the easement is appurtenant to Dansie's land, and the ruling of the district court is reversed in this respect. The district court did not clearly err, however, in determining that the parties intended the easement's historic use to constitute its scope. Finally, the district court erred in applying a per-lot assessment of maintenance costs to Dansie. Instead, it should have determined Dansie's use in proportion to the total use of Hi-Country's members' use, and apportioned Dansie's maintenance costs accordingly. Thus, the district court's ruling in this respect is reversed and remanded for a proper determination.
¶ 23 WE CONCUR: RUSSELL W. BENCH, Associate Presiding Judge, and PAMELA T. GREENWOOD, Judge.
NOTES
[1] The district court did not, however, use the term "easement in gross."
[2] We are not persuaded by Dansie's argument that the district court considered the easement to be one of necessity. The district court's memorandum decision regarding the easement's scope stated "the parties had stipulated to grant [Dansie] an easement." (Emphasis added.) By definition, easements by necessity are not granted; only express easements are.
[3] As further support for the district court's finding, we note that Dansie himself insists that the basis of the existence of the easement is Hi-Country's acquiescence, through stipulation, to the easement. If it is true that Hi-Country acquiesced to the easement, and the parties expressed no contrary intention, then it seems only proper that the easement's scope would remain what it had been in the past. In other words, the easement came into existence only because Hi-Country acquiesced to the way Dansie had been using the easement in the past. Dansie cannot now have it both ways, claiming the existence of an easement by stipulation, but claiming further that the easement's scope exceeds the use to which Hi-Country stipulated.
| {
"pile_set_name": "FreeLaw"
} |
923 N.E.2d 347 (2010)
Dora Mae JABLONSKI and John L. Jablonski, Jr., as Special Administrator and Personal Representative of the Estate of John L. Jablonski, Sr., Plaintiffs-Appellees,
v.
FORD MOTOR COMPANY, Defendant-Appellant, and
Natalie S. Ingram, Defendant.
No. 5-05-0723.
Appellate Court of Illinois, Fifth District.
February 1, 2010.
Rehearing Denied February 25, 2010.
*355 Dan H. Ball, Elizabeth C. Carver, Alan J. Dixon, Peter W. Herzog III, Stephen G. Strauss, Thomas C. Walsh, Bryan Cave LLP, St. Louis, MO, for Appellant.
Bradley M. Lakin, Charles W. Chapman, Gerald R. Walters, Gail G. Renshaw, The Lakin Law Firm, P.C., Wood River, IL, for Appellees.
Justice STEWART delivered the opinion of the court:
The plaintiffs, Dora Mae Jablonski (Dora) and John L. Jablonski, Jr., as the special administrator and personal representative of the estate of Dora's deceased husband, John L. Jablonski, Sr. (John), brought this action against Ford Motor Company (Ford), alleging strict product liability and negligence in the design of their 1993 Lincoln Town Car automobile as a result of a collision in which John was killed and Dora was seriously injured. Specifically, the plaintiffs alleged that the fuel tank system in the Lincoln Town Car was defective, unreasonably dangerous, and negligently designed by Ford. The plaintiffs also filed a negligence claim against Natalie S. Ingram, the driver of the vehicle that collided with the Jablonskis' vehicle, but that claim was settled before the trial. Plaintiff Dora Jablonski moved prior to the trial for leave to file a willful-and-wanton-conduct count and to seek punitive damages, and after a hearing, her motion was granted by the trial court. The plaintiffs voluntarily dismissed their strict product liability claims at the close of all the evidence, and the case against Ford was submitted to the jury on the negligent-design claims and on the willful-and-wanton-conduct claims seeking punitive damages. The jury returned a verdict against Ford, assessing the plaintiffs' total damages in excess of $43 million, including *356 $15 million in punitive damages, on which the circuit court of Madison County entered a judgment. The circuit court denied Ford's motion for a judgment notwithstanding the verdict or for a new trial. Ford timely appeals from the judgment.
Ford raises numerous claims of error, which we restate generally as follows: the trial court erred (1) in submitting any of the plaintiffs' negligent-design claims to the jury, (2) in making various evidentiary rulings, (3) in instructing the jury on the negligence claims, and (4) in submitting Dora's punitive damages claim to the jury and instructing the jury on that claim. Due to the nature and complexity of the many issues raised on appeal by Ford, we must provide an extensive review of the evidence produced at the trial. Additional facts will be provided where necessary. For the reasons set forth below, we affirm.
BACKGROUND
This case arose from a July 3, 2003, automobile accident in which Dora and John were traveling in their 1993 Lincoln Town Car, which was the last car in a line of traffic stopped at a construction site on Interstate 270, near its intersection with Illinois Route 203, in Madison County, Illinois. Ingram, who was driving a 1995 Chevrolet Lumina, while distracted and looking for her sunglasses, rear-ended the Jablonskis' vehicle. At the point of the collision, she was traveling at least 56 miles per hour and by some estimates 65 miles per hour. According to witnesses, Ingram did not brake or leave skid marks, and she struck the rear of the Jablonski vehicle dead center. As a result of the collision, the fuel tank in the Lincoln Town Car was crushed, a pipe wrench located in the trunk of the Jablonskis' car penetrated the fuel tank, and a fire immediately ensued. It is undisputed that gasoline leaking from the damaged fuel tank caused the fire.
Both Dora and John were eventually able to exit their vehicle but were engulfed in flames and suffered severe burn injuries. John suffered burns over 80% of his body and died two days later as a result of his burn injuries. Dora suffered burns over 32% of her body, including her face, and by the time of the trial, she had suffered through extensive burn treatment, reconstructive surgery, and rehabilitation. She will need extensive care and treatment for the remainder of her life. At the time of the accident, John was 74 and Dora was 71. They had been married for more than 50 years and had raised four children. The extent of the Jablonskis' injuries and the medical expenses associated with those injuries are not disputed. Ford does not challenge the amount of the verdict and makes no claim that either the compensatory damages or the punitive damages are excessive.
The plaintiffs' negligence claims were focused upon the design of the fuel tank system in the 1993 Lincoln Town Car. Evidence presented by both parties revealed that the Lincoln Town Car, the Mercury Grand Marquis, the Ford Crown Victoria, and the Ford Crown Victoria Police Interceptor (Police Interceptor) are all "Panther platform" vehicles. Ford developed the Panther platform and first introduced it in the 1979 model year. The characteristics of Panther platform vehicles include a large, deep trunk, a solid axle, rear-wheel drive, and body-on-frame construction. The fuel tank in Panther platform vehicles is located forward of the trunk, behind the rear axle and between the rear wheels, a configuration known as an "aft-of-axle" or "vertical-behind-the-axle" fuel tank. While aft-of-axle fuel tanks were common when the Panther platform was developed in 1979, Ford has *357 placed the fuel tank forward of the axle in every new passenger car platform it has since designed. By 1991, a majority of all the new automobiles manufactured had fuel tanks forward of the axle. At the time of the trial, the Panther platform vehicles and the Mustang were the only types of vehicles Ford still manufactured with an aft-of-axle fuel tank.
The plaintiffs presented exhibits, including Ford records, and the testimony of Ford employees which the plaintiffs argued revealed that Ford had long been aware of the potential dangers associated with the aft-of-axle fuel tank design, including the danger of objects in the trunk puncturing the fuel tank in a collision. In the late 1960s, Derwyn Severy, a researcher at UCLA, conducted a series of automobile collision experiments, partially funded by Ford, for the purpose of obtaining "information relating to the injury exposure for high-speed rear-end collisions, including the lethal hazard of gasoline-fed post[]crash fires." The Severy research resulted in an article in a publication of the Society of Automotive Engineers, which was introduced into evidence. The article included this conclusion among its findings:
"Initial findings indicate that much progress can be made in reducing the possibility of crash fires by incorporation of relatively inexpensive design considerations relating to fuel tanks and related fuel systems. * * * Preliminary studies suggest that the area cradled by the rear wheels, above the rear axle and below the rear window[,] represents an improved location for the fuel tank. This location is least often compromised from collisions of all types."
On October 3, 1969, Roger Daniel, a safety engineer at Ford, sent a handwritten memo to his superiors at Ford entitled "Future Gas Tank Location." In the memo, Daniel stated his understanding that the "future direction as to fuel tank location is to hang the tank under the trunk," and he asserted that "for all vehicles except wagons and convertibles, the best tank location by far appears to be directly above the axle." Daniel stated that an advantage of this design was that it would be "almost impossible to crush the tank from the rear." On January 23, 1970, Daniel prepared a typewritten memo, also signed by Robert Fredericks, Ford's principal research engineer for safety engineering, which stated as follows:
"We have examined possible fuel tank locations and determined that the safest place for a fuel tank is directly above the rear axle and below the package tray. In rear[-]end accidents, the tank is above and forward of vehicle components likely to crush during the collision or deform it, while in lateral accidents, the tires, axle, and wheelhouse structure provide extensive protection against rupture or even excessive deformation."
The memo described the proposed tank location in detail and concluded that in that location the tank "is high enough in the trunk to essentially preclude rupture from in-trunk articles during an accident." On February 9, 1971, Ford prepared a "Cost Engineering Report" to determine the potential cost of moving the fuel tank to the above-the-rear-axle location. The report concluded that the cost of the design change at that time would have been $9.95 per vehicle. This design change was not incorporated into the 1979 Panther platform.
The plaintiffs introduced excerpts of an evidence deposition of Kenneth K. Kohrs that had been taken in another case on February 26, 1992, just prior to the production of the Jablonskis' Lincoln Town Car. At that time, Kohrs was the vice president of car product development for *358 Ford, which he agreed meant that he was the person with "the highest direct responsibility for the engineering design and development of private passenger automobiles sold in North America." He testified that he understood he was testifying as a representative of Ford and acknowledged that "it is Ford's position that the automotive industry should incorporate in a new product the latest state of the art with regard to overall vehicle safety that is feasible from a high volume production standpoint." Kohrs stated that Ford has "always been aware of [its] responsibility to minimize the effect of post[]crash fires and the need to continually reduce the incidence." He further acknowledged that Ford had produced fuel system designs for the Fox platform vehicle which incorporated shields for the fuel tank. He also admitted that Ford had produced the Capri for the European market in the 1970s and that the Capri had an above-the-rear-axle fuel tank. Kohrs acknowledged that the location of the fuel tank in the Capri had been marketed by Ford as a safety feature and that the Capri had passed a 30-mile-per-hour fixed-barrier crash test.
Brian Geraghty, a Ford employee for more than 40 years, who, at the time of the trial, was the director of Ford's design analysis office, was called by the plaintiffs as an adverse witness. Geraghty testified that before the Jablonskis' accident on July 3, 2003, Ford knew that there had been police car collisions in which the fuel tank was punctured, resulting in fires and the deaths of the occupants. Ford was aware that between 1983 and 2003, five deaths and seven injuries resulted from collisions in which items in the trunk had punctured the fuel tank. The police cars involved in these accidents were Police Interceptors that were built on the Panther platform. Geraghty acknowledged that the state police agencies in both Florida and Arizona had requested that Ford study the issue of fires caused by the puncture of fuel tanks by items in the trunk as a result of rear-end collisions. Geraghty identified an exhibit prepared by Dr. Michelle Vogler, at the request of Ford, for the Arizona Highway Patrol, with statistics concerning the fire risk in various vehicles involved in fatal rear-end collisions. The data in that exhibit indicated that Lincoln Town Cars were involved in fatal rear-end collisions more than three times more often than Ford Escorts, a much smaller vehicle designed with a forward-of-the-axle fuel tank. Geraghty also identified an exhibit indicating that in the years 2002 to 2003, there were more than 15 million registered vehicles in the United States that had their fuel tanks located behind the axle but that, at the time of the trial, no vehicles on that list were still being manufactured or sold with a fuel tank in that location, except Ford's Panther platform vehicles.
The plaintiffs introduced as admissions, and read to the jury, excerpts from a deposition of Michael J. Harrigan, Sr., taken in another case on December 11, 2003. Harrigan had worked in the design of fuel systems at Ford since 1977. In 1986, he became the chairman of the Fuel Systems Technical Standards Committee of the Society of Automotive Engineers. The committee includes approximately 50 individuals employed by various automobile manufacturers and automobile component part manufacturers. Its purpose is to develop standards and recommended practices for the automotive industry in the design of fuel systems. Harrigan also taught a class on fuel systems engineering to Ford engineers beginning in 1991. Portions of the 2000 version of the class manual were introduced into evidence. Harrigan agreed that he is an expert in "fuel system design standards."
*359 Harrigan acknowledged that since the introduction of the Escort in 1981, all the passenger cars designed at Ford have been designed with the fuel tank forward of the axle. He confirmed that Ford's preferred fuel tank location is forward of the axle, but he acknowledged that the fuel tank design for Panther platform vehicles had not changed since their introduction in 1979. Harrigan agreed that a part of the role of the engineer in designing a fuel system for an automobile is to protect the customer. He testified that engineering standards require that a fuel system be designed to avoid allowing anything to penetrate or puncture the fuel tank in a crash. If a hazard is identified that the design cannot prevent from occurring, Harrigan agreed that shielding should be employed. He acknowledged that Ford had used high-density polyethylene shielding to shield fuel tanks in some of its vehicles since the 1970s, and he agreed that the shielding was technically and economically feasible to use.
The manual for the fuel systems engineering class that Harrigan used to teach Ford engineers provides that it is the "engineer's role" to "eliminate potential hazards" in the product. The manual then states that if the engineer cannot "design [a] hazard out of the product," he should "design a guard or shield." As a "last resort" the engineer is taught to "provide a clear warning" if the hazard cannot be designed out of the product and an appropriate guard or shield cannot be designed. Finally, the manual provides that the engineer should consider not releasing the product if a hazard still exists.
Cam Cope, an expert consultant who determines the cause and origin of vehicle fires, testified for the plaintiffs that the major cause and the original source of the Jablonskis' fire was the pipe wrench that was propelled through the trunk wall and into the fuel tank. He also opined that the collision caused a smaller hole in the fuel tank and that the smaller hole was another likely source of the fire.
Mark Arndt testified as an expert witness for the plaintiffs. He has a bachelor's degree in mechanical engineering and specializes in automotive engineering. For approximately 20 years, he has provided consulting services regarding motor vehicle crashes, particularly those involving postcrash fires, and in that capacity he has investigated thousands of crashes involving fires. He is a member of the Society of Automotive Engineers and served on its Fuel Containment Standards Committee, which is charged, in part, with the responsibility for developing standards and recommended practices for the design of fuel systems in motor vehicles. He has also published peer-reviewed articles on postcrash vehicle fires and on the analysis of similar incidents to determine product safety.
In preparation for his testimony, Arndt and his staff examined and photographed the Jablonskis' Lincoln Town Car, removed the fuel tank, and performed a detailed analysis of this accident. He also performed an analysis of other similar incidents. Arndt compiled a list of 44 accidents between 1981 and 2003 involving postcrash fires in rear-impact collisions of Ford automobiles. Most of the vehicles involved were Panther platform automobiles, and all of them were designed with a vertical-behind-the-axle fuel tank. Many of the occupants of the vehicles suffered severe burn injuries or died of burn injuries. Arndt's list included 11 incidents, prior to the Jablonskis' accident, involving Police Interceptors where the fuel tank was punctured by an item located in the trunk. Arndt had personally investigated approximately 20 of the incidents on the list, and he relied upon the list of incidents *360 in forming his opinions. Arndt also prepared and relied upon a separate list of similar incidents that had been compiled from an interrogatory answer filed by Ford in another case in 1992. That list was also introduced into evidence and included 416 accidents involving Ford vehicles with behind-the-axle fuel tanks in which the fuel tank was torn, punctured, or split open, and it revealed 378 fatal burn injuries.
Arndt expressed the opinion that the pipe wrench located in the trunk of the Jablonskis' vehicle penetrated the front and rear walls of the fuel tank, causing the two larger holes in the fuel tank. He also noted that an additional, smaller hole in the fuel tank was caused by the crushing of the low-fuel reservoir in the fuel tank. Arndt confirmed that the low-fuel reservoir had also penetrated the fuel tank in one of the prior similar incidents described in an exhibit.
From the standpoint of safety, Arndt opined that there are basic engineering standards for the design of products. Once a hazard is identified, the engineer should attempt to design the hazard out of the product. If the hazard cannot be eliminated in the design process, then the engineer should design a guard or shield to protect the consumer from the hazard. If the guard or shield does not eliminate the hazard, then the consumer should be provided with a warning describing how to prevent the potential harm in the product.
In Arndt's opinion, the fuel containment system in the Jablonskis' 1993 Lincoln Town Car was defective in that the fuel tank was located in the likely crush zone in a rear-end collision and was vulnerable to being punctured by items in the trunk. At the time of the manufacture of the Jablonskis' automobile, a safer and more practical location for the fuel tank would have been forward of the axle. Further, if Ford did not change the location of the fuel tank, it should have provided shields that protected it from being punctured by other component parts of the vehicle or items in the trunk and a guard that enabled consumers to align items in the trunk laterally so they would be less likely to puncture the tank. Finally, Ford should have provided the consumer with a warning of the danger of objects in the trunk puncturing the fuel tank.
The plaintiffs also introduced evidence regarding postcrash fires in rear-end collisions involving Panther platform Police Interceptor vehicles subsequent to the sale of the Jablonskis' 1993 Lincoln Town Car but before the 2003 accident. During this 10-year period, law enforcement agencies became increasingly aware of high-speed rear-end collisions in which police officers were injured or killed in postcrash fires in Police Interceptors. Typically, these accidents occurred when the officers were stopped on the side of major highways and were performing their duties. In some incidents, the fuel tank was breached by being crushed against component parts of the vehicle, and in others it was damaged by trunk contents. As a result of these incidents, police agencies began making complaints to Ford and to the National Highway Traffic Safety Administration (NHTSA).
In 2001, as a result of these complaints, Ford issued a Technical Service Bulletin (TSB), which was sent to all the Ford dealers. The TSB applied to 1992 to 2001 Crown Victorias, 1992 to 2001 Lincoln Town Cars, and 1992 to 2001 Mercury Grand Marquis. It noted that police agencies had reported postcrash fires in high-speed rear impacts, and it provided a recommended service procedure for vehicles "exposed to extremely high-speed rear impacts." Specifically, it instructed dealers to replace a hex-head bolt on a park-brake *361 cable with a round-head bolt and to grind down a metal tab that protruded from a "U" bracket on the rear stabilizer bar axle attachment. These parts had been identified as having breached the fuel tank in high-speed rear-end collisions. The issuance of the TSB prompted the NHTSA, in October 2001, to open an investigation into postcrash fires in Ford's Panther platform vehicles. That investigation was completed in October of 2002, and the NHTSA required no action by Ford.
During 2002, police agencies continued to complain about the danger of postcrash fires, and government officials in both Florida and Arizona suggested that a moratorium should be declared on future purchases of Panther platform vehicles for use by law enforcement. In March of 2002, Janet Napolitano, then the Attorney General of Arizona, wrote a letter to Ford expressing concern about the incidence of fuel-fed fires in Police Interceptors. In June of 2002, Ford representatives met with Napolitano and then announced the formation of a "Blue Ribbon Panel" of Ford and law enforcement representatives that committed to a 90-day program to evaluate fuel system upgrades and police procedures as a part of a "Police Officer Safety Action Plan."
In September of 2002, Ford and the Arizona Attorney General's office held a joint press conference and announced the actions taken and to be taken as a result of the 90-day program. First, Ford announced that it had developed a Police Interceptor package upgrade kit (Upgrade Kit). The Upgrade Kit consisted of shields designed to protect the fuel tank from being punctured by component parts identified as puncture hazards in high-speed rear-end collisions. Ford had crash-tested the shields at 75 miles per hour and had found them effective. Second, the Blue Ribbon Panel announced recommendations for improved police safety procedures, including "Trunk Packing Considerations,[1]" which advised officers on the placement of items in the trunk to reduce the potential for the fuel tank being ruptured by trunk contents. Third, Ford announced the development of an optional "Trunk Pack," consisting of a drop-in trunk liner made of high density polyethylene, which required the user to place objects in the trunk laterally rather than longitudinally. A sticker located on the Trunk Pack instructed the user to "align hard or sharp police equipment laterally." Finally, Ford announced the creation of a Web site where the law enforcement community could find information about the work of the Blue Ribbon Panel and updates on Ford's Police Interceptor designsafety efforts.
In October of 2002, Ford notified, by first class mail, all the registered owners of Police Interceptors and all the United States Ford, Lincoln, and Mercury dealers of the availability of the Upgrade Kit. In March of 2003, Ford also notified its 32,000 government fleet customers. The Trunk Packing Considerations were available through the Web site and with the purchase of the optional Trunk Pack. Civilian owners of Panther platform vehicles, including the Jablonskis, received no notice of the availability of the Upgrade Kit, Trunk Pack, or Trunk Packing Considerations. The decision not to notify civilian users of Panther platform vehicles was made by Sue Cischke, a vice president and officer of Ford and the highest-ranking *362 Ford employee responsible for vehicle safety. Cischke testified by deposition that Ford chose not to notify civilian users because it was Ford's opinion that the risk of fuel-fed, postcrash fires in high-speed rear-impact collisions is unique to police users because police officers have significantly greater exposure to that type of collision.
Ford, in its defense, presented extensive documentary and testimonial evidence in support of the safety of Panther platform vehicles. It defended the design of the 1993 Lincoln Town Car with the testimony of experts who opined that there was no defect in the fuel system, that a change in the location of the fuel tank would reduce the effectiveness of other desirable attributes of the Panther platform vehicles, and that, considering the overall design of the Panther platform vehicles, the fuel tank is in the best location for that vehicle. Ford also presented evidence that the Panther platform met and exceeded all United States government safety standards for its fuel containment system. Further, Ford introduced the NHTSA report on its investigation into the safety of the Panther platform fuel system in which the NHTSA neither recommended nor required any change in Ford's design. Ford presented testimony that millions of Ford Panther platform vehicles had been driven for years with a small incidence of postcrash fires, suggesting that the design of the fuel system was reasonably safe. Finally, Ford presented evidence that the Jablonski accident was a unique occurrence since it was the only crash known in a Panther platform vehicle other than a Police Interceptor in which trunk contents punctured the fuel tank; therefore, Ford argued, a design change based upon such an unlikely occurrence was not warranted.
Jack Ridenour, Jr., is a Ford employee in the design analysis department who heads a team of engineers who analyze the performance of Ford vehicles in the field, investigate crashes, and consult with engineers designing future vehicles. Among other duties, he analyzes the performance of fuel systems on Ford vehicles in crashes. As a mechanical engineer, Ridenour joined the fuel system design group at Ford in 1971 and worked in that group until 1977, designing and developing fuel systems for Ford. He has taught the fuel system engineering classes at Ford. Ridenour investigated the Jablonskis' accident and offered opinions about the safety of the 1993 Lincoln Town Car and the design of Panther platform vehicles.
Ridenour testified that when he began working at Ford in 1971, Ford was well aware of the Severy research introduced by the plaintiffs. According to Ridenour, the Daniel memos introduced by the plaintiffs represent further research Ford did in response to the Severy article. Further, the document showing that Ford analyzed the cost of incorporating the design changes advocated by Severy and Daniel at $9.95 per vehicle confirmed that Ford was considering alternatives. Ridenour agreed that the over-the-axle design advocated by Severy and Daniel was superior to the under-the-trunk location for the fuel tank which was then being used, but he noted that those alternatives did not include the vertical-behind-the-axle location ultimately adopted for the Panther platform. According to Ridenour, once Ford had fully tested the over-the-axle location, it was determined that it was not a workable design.
Ridenour described the possible tank locations and explained the overall design process. He opined that there is no optimum fuel tank location for all cars. The design of the fuel system depends upon the design of the car, and the fuel system used by Ford in the Panther platform *363 vehicles was designed for that type of car. The Panther platform vehicle is a large passenger automobile with a body-on-frame construction, rear-wheel drive, and a spacious trunk. If the fuel tank were moved in the Panther platform vehicle to the forward-of-the-axle location, the body-on-frame construction and rear-wheel drive would also have to be eliminated, and it would be a totally different car. In his opinion, the vertical-behind-the-axle fuel tank location was the best and safest design for the 1993 Lincoln Town Car and provided the most protection for occupants from all types of crashes.
During his testimony, Ridenour identified, and Ford introduced into evidence, the certification package for 1993 Panther platform vehicles, including the Town Car, in which Ford certified that all of its Panther platform vehicles met federal motor vehicle safety standards. Federal Motor Vehicle Safety Standard (FMVSS) 301 required that a vehicle withstand, with minimum fuel leakage, a rear impact with a nondeformable 4,000-pound barrier moving at 30 miles per hour. The 1993 Lincoln Town Car met this standard. In fact, the certification package revealed that Ford performed the FMVSS 301 testing at 35 miles per hour, and that the Town Car had passed. Ford also performed more rigorous internal testing which required that the Lincoln Town Car withstand, with minimal fuel leakage, three separate car-to-car fuel-system-integrity crash tests performed at 50 miles per hour, and the 1993 Town Car passed that testing as well. According to Ridenour, at the time of the production of the 1993 Lincoln Town Car, only Ford and General Motors had internal standards requiring testing at 50 miles per hour.
Ridenour acknowledged the design standards in Ford's fuel system engineering materials which require that an engineer design a hazard out of a product, guard against it, or provide a warning, but he testified that, in his opinion, Ford met those standards in the design of the Panther platform vehicles. He testified that Ford performed a thorough design review and located the fuel tank in the safest place for Panther platform vehicles. He also opined that Ford guarded against a penetration of the fuel tank by placing a steel trunk wall between the rear of the vehicle and the fuel tank. Ridenour testified that no warning was necessary, either in 1993 when the Jablonski vehicle was produced or thereafter, with regard to the danger of trunk contents puncturing the fuel tank. In his opinion, it was not reasonably foreseeable that a pipe wrench would puncture the fuel tank since Ford was unaware of any such incidents by 1993 and, prior to the Jablonskis' accident had knowledge of trunk content punctures in police vehicles only. Finally, Ridenour testified that, in his opinion, the Panther platform vehicles, including the Jablonskis' 1993 Lincoln Town Car, are reasonably safe in high-speed rear-end collisions.
Walter Newell is the president and the lead investigator of Newell Investigative Services. He was hired by Ford to investigate the cause and origin of the Jablonski vehicle fire. At the time of the trial, he had been a fire investigator for 23 years and had investigated more than 3,000 vehicle fires. A majority of the postcollision vehicle fires he had investigated involved vehicles with aft-of-axle fuel tanks. Newell agreed with the opinion of the plaintiffs' expert, Cam Cope, that the primary cause of the Jablonski vehicle fire was the leakage of fuel from the fuel tank as a result of the holes caused by the pipe wrench. He disagreed with Cope's additional conclusion that the smaller hole caused by the crushing of the low-fuel reservoir was a contributing cause of the fire.
*364 Ford called Dr. John Habberstad, a mechanical engineer and an expert in accident reconstruction, as an expert witness. Habberstad had been involved in accident reconstruction for 35 years and had investigated more than 2,000 accidents. Based upon his investigation of this accident, he testified that the speed of Ingram's vehicle at impact was 65 miles per hour. He further testified that he had been involved in the investigation of many accidents in which a fuel tank was breached, and he stated that he had never observed a tank punctured by an item in the trunk. Finally, in his opinion, if the Upgrade Kit shields developed by Ford had been installed on the Jablonski vehicle, they would have had no effect on this accident.
Mark Noble, a mechanical engineer and an expert in the analysis of auto accidents, was called as an expert witness by Ford. Noble began his career as an engineer in the fuel system department at Chrysler Corp. (Chrysler). Eventually, he supervised that department and was responsible for the design of the fuel systems in Chrysler vehicles. In 1980, he left Chrysler and has since worked as an expert in the analysis of auto accidents.
In Noble's opinion, the Jablonski accident was a unique occurrence that resulted from a combination of factors not likely to be repeated. In his view, the speed of the Chevrolet Lumina that struck the Jablonski Town Car, the configuration of the Lumina, the alignment of the vehicles at impact, the location and alignment of the pipe wrench in the trunk, the type of trailer hitch on the Town Car, and other factors all combined to cause the pipe wrench to penetrate the fuel tank. Noble noted that, out of millions of Town Cars, this is the only known accident in which the fuel tank has been breached by an item in the trunk. If all the Panther platform vehicles are included, this is the only known incident in a non-police vehicle. According to Noble, this type of incident is so rare that the risk of trunk contents puncturing the fuel tank should be given little consideration in designing a fuel system.
Noble opined that there is no optimum fuel tank location for all cars but that there may be an optimum location for a particular vehicle. In designing the location of a fuel tank, the features of a particular vehicle should be taken into account. According to Noble, the Town Car has features that reduce the risk of fuel tank punctures, including a steel frame, a steel floor pan, and a deformable steel tank, as well as the fact that the tank is 40 inches from the rear bumper. In his opinion, the optimum location for the fuel tank in the 1993 Lincoln Town Car was the vertical-behind-the-axle location, as it was designed. Finally, it was Noble's opinion that the 1993 Lincoln Town Car is a "very safe overall vehicle" with a "very safe" fuel tank location.
Sue Cischke, called as a witness by Ford, reiterated and expanded her testimony provided by deposition during the plaintiffs' case. As the highest-ranking safety officer at Ford, she explained Ford's safety philosophy in the design of its products. First, Ford meets all federal safety standards. Second, it makes voluntary agreements with other manufacturers to improve product safety and then treats compliance with those agreements the same as federal safety standards. Third, Ford has internal safety standards beyond the federal standards that it monitors with extensive product testing. Fourth, it strives to meet public domain guidelines such as those promoted by Consumer Reports. Finally, Ford continually develops and offers enhanced safety features.
Cischke identified the NHTSA report of its investigation into postcrash fires resulting from high-speed rear-end collisions in *365 Panther platform vehicles, and the report was admitted into evidence. The report required no action by Ford and, according to Cischke, supported her decision not to notify nonpolice users of Panther platform vehicles of the danger of trunk contents puncturing the fuel tank. Cischke confirmed her belief that any danger from trunk contents was limited to police vehicles due to their increased exposure to high-speed rear-end collisions. Since the Jablonski accident was the first such occurrence reported to Ford in a non-police vehicle, Ford had no basis upon which to believe that a warning was necessary for civilian users. Further, Cischke testified that, even if she had known of the Jablonski accident, she would not have warned civilian users based upon a single occurrence.
Cischke agreed that engineering safety standards require a manufacturer to first attempt to design a hazard out of a product and, if that is not possible, to shield or guard against the hazard and, if the hazard cannot be shielded, to then warn the consumer about the hazard. In her opinion, however, there was no foreseeable risk of trunk contents puncturing the fuel tank in Panther platform civilian vehicles and no safety hazard that required design consideration or warnings.
Ford called Dr. Paul Taylor as an expert witness. Taylor is a mechanical engineer employed by Exponent Failure Analysis Associates, a nationwide firm involved in analyzing accidents. He is experienced in investigating accidents and in statistical analysis. Taylor disagreed with the similar-incident analysis of Mark Arndt and expressed the opinion that nothing in Arndt's lists of prior similar incidents provides proof that the 1993 Lincoln Town Car was unreasonably dangerous. Taylor analyzed the frequency of fatal rear-end collisions involving postcrash fires by comparing the number of vehicles involved in those incidents to the total number of vehicles of that type manufactured. Millions of 1993 Lincoln Town Cars were sold. According to Taylor, the number of 1993 Lincoln Town Cars involved in fatal rear-end collisions involving postcrash fires is only .0009% of the total number of those vehicles sold. In other words, 99.9991% of 1993 Lincoln Town Cars were not involved in that type of fatal collision. In Taylor's opinion, these statistics show that the 1993 Lincoln Town Car is not an unreasonably dangerous vehicle.
Finally, Dr. Edward Caulfield, president of Packer Engineering, testified for Ford as an expert witness. Caulfield is a consultant in accident investigation. At Ford's request, he studied the strength of the frame on Panther platform vehicles, evaluated the cause of the Jablonski accident, and considered whether a guard would have prevented the accident. First, it was his opinion that the strength of the frame was appropriate, that placing the fuel tank within the frame was a good design, and that the design of the tank location was safe. Second, he concluded that the pipe wrench puncturing the fuel tank was such a rare, unique, and unforeseeable event that a design engineer could not be expected to anticipate and design against such an occurrence. Third, after extensive testing to determine whether adding shields to the fuel tank would have prevented the postcrash fire in this case, it was his conclusion that there is no feasible alternative guarding design which would have prevented the pipe wrench from piercing the tank. Finally, in his opinion, the 1993 Lincoln Town Car has a reasonably safe design and Ford's engineers were not negligent in adopting that design.
At the conclusion of all the evidence, the plaintiffs dismissed their claims for strict product liability and proceeded only on *366 their negligence and willful-and-wanton-conduct counts. The trial court conducted a conference on jury instructions at which Ford objected to various instructions that were given by the court and submitted instructions that were refused. We will discuss those rulings in more detail below. After closing arguments, the case was submitted to the jury, which rendered verdicts in excess of $5 million for the injuries and death of John Jablonski, Sr., in excess of $23 million for the injuries of Dora Jablonski, and $15 million in punitive damages for Dora Jablonski. Ford's posttrial motion for a judgment notwithstanding the verdict or for a new trial was denied, and this appeal followed.
ANALYSIS
We begin by recognizing that the plaintiffs' compensatory-damages claims were submitted to the jury on a negligent-design theory. "Illinois cases considering a cause of action for defective products liability sounding in negligence rather than strict liability are rare, probably because it appears to plaintiffs that it is easier to prove the strict liability count." Blue v. Environmental Engineering, Inc., 215 Ill.2d 78, 95, 293 Ill.Dec. 630, 828 N.E.2d 1128, 1141 (2005). Thus, we must first acknowledge the framework upon which the issues in this case must be analyzed.
To establish a product liability action asserting a claim based upon negligent product design, the plaintiff must establish, as in other negligence cases, "the existence of a duty of care owed by the defendant, a breach of that duty, an injury that was proximately caused by that breach, and damages." Calles v. Scripto-Tokai Corp., 224 Ill.2d 247, 270, 309 Ill. Dec. 383, 864 N.E.2d 249, 263 (2007). "The key distinction between a negligence claim and a strict liability claim lies in the concept of fault." Calles, 224 Ill.2d at 270, 309 Ill.Dec. 383, 864 N.E.2d at 263. A strict liability claim is concerned only with the condition of the product, while "in a negligence claim, a defendant's fault is at issue in addition to the condition of the product." Calles, 224 Ill.2d at 270, 309 Ill.Dec. 383, 864 N.E.2d at 263-64. Thus, in both types of cases alleging a product-design claim, the plaintiff must prove the existence of a defective condition in the product at the time it left the manufacturer's control. Carrizales v. Rheem Manufacturing Co., 226 Ill.App.3d 20, 36, 168 Ill.Dec. 169, 589 N.E.2d 569, 580 (1991). In a negligent-product-design claim, the plaintiff must also provide evidence of "a standard of care by which to measure a defendant's design and establish a deviation from that standard." Blue, 215 Ill.2d at 96, 293 Ill.Dec. 630, 828 N.E.2d at 1141.
"A manufacturer is held to the degree of knowledge and skill of experts" (Anderson v. Hyster Co., 74 Ill.2d 364, 368, 24 Ill.Dec. 549, 385 N.E.2d 690, 692 (1979)) and "has a nondelegable duty to design reasonably safe products." Calles, 224 Ill.2d at 270, 309 Ill.Dec. 383, 864 N.E.2d at 264. An automobile manufacturer has a duty "`to use reasonable care in the design and manufacture of its product, bearing in mind that the intended and actual use of automobiles results in collisions.'" Mack v. Ford Motor Co., 283 Ill.App.3d 52, 56, 218 Ill.Dec. 465, 669 N.E.2d 608, 612 (1996) (quoting Buehler v. Whalen, 70 Ill.2d 51, 61, 15 Ill.Dec. 852, 374 N.E.2d 460, 464-65 (1977)). "The crucial question in a negligent-design case is whether the manufacturer exercised reasonable care in the design of the product." Calles, 224 Ill.2d at 270, 309 Ill.Dec. 383, 864 N.E.2d at 264. "In determining whether the manufacturer's conduct was reasonable, the question is `whether in the exercise of ordinary care the manufacturer should have foreseen that the design would be hazardous to *367 someone.'" Calles, 224 Ill.2d at 271, 309 Ill.Dec. 383, 864 N.E.2d at 264 (quoting American Law of Products Liability 3d § 28:48, at 28-66 (1997)). "To show that the manufacturer acted unreasonably based on the foreseeability of harm, the plaintiff must show the manufacturer knew or should have known of the risk posed by the product design at the time of manufacture." Calles, 224 Ill.2d at 271, 309 Ill. Dec. 383, 864 N.E.2d at 264.
A.
Negligence Claims
Ford first argues that the circuit court erred by not granting it a judgment notwithstanding the verdict because the plaintiffs failed to present sufficient evidence to justify submitting any of their negligence claims to the jury. Our review of the trial court's decision on a motion for a judgment notwithstanding the verdict is de novo. McClure v. Owens Corning Fiberglas Corp., 188 Ill.2d 102, 132, 241 Ill.Dec. 787, 720 N.E.2d 242, 257 (1999). A judgment notwithstanding the verdict is not properly entered unless the evidence, when viewed in the light most favorable to the nonmoving party, so overwhelmingly favors the movant that no contrary verdict could ever stand. Holton v. Memorial Hospital, 176 Ill.2d 95, 109, 223 Ill.Dec. 429, 679 N.E.2d 1202, 1208 (1997). If "reasonable minds might differ as to inferences or conclusions to be drawn from the facts presented," then a judgment notwithstanding the verdict should not be entered. Pasquale v. Speed Products Engineering, 166 Ill.2d 337, 351, 211 Ill.Dec. 314, 654 N.E.2d 1365, 1374 (1995). Neither a trial court nor a court of review is allowed to reweigh the evidence or "substitute its judgment on questions of fact fairly submitted, tried, and determined from the evidence which did not greatly preponderate either way." Maple v. Gustafson, 151 Ill.2d 445, 452-53, 177 Ill.Dec. 438, 603 N.E.2d 508, 512 (1992).
In this case, the trial court submitted four claims of negligence for the jury's consideration. The jury was instructed as follows:
"[The plaintiffs] claims * * * that [Ford] was negligent in one or more of the following respects:
Equipping the 1993 Lincoln Town Car with a vertical-behind-the-axle fuel tank without adding shields or guards; or
Failing to locate the fuel tank above the axle or forward of the rear axle; or
Failing to warn of the risk of trunk contents puncturing the fuel tank; or
Failing to inform of the existence of the Trunk Pack and/or Trunk Pack Recommendations."
The jury entered a general verdict for the plaintiffs. Neither party submitted special interrogatories designed to determine upon which claim or claims of negligence the jury based its verdict. We will first examine Ford's argument that the first three claims of negligence should not have been submitted to the jury. The fourth claim requires a separate analysis.
1.
Claims of Negligent Location of Fuel Tank, Failure to Guard, and Failure to Warn
Ford first argues that the plaintiffs failed to establish that it breached any recognized standard of care in the design of the fuel tank system in the 1993 Lincoln Town Car. As a result, Ford concludes that the trial court erred in submitting the plaintiffs' claims that Ford was negligent in locating the fuel tank, in failing to include guards, and in failing to warn that the fuel tank could be breached by trunk contents. Ford argues that the plaintiffs "made no attempt" to show that the location *368 of the fuel tank behind and not above or forward of the rear axle "violated any standard of care recognized in the industry or by any governmental agency" and that the evidence was "uncontroverted that Ford complied with applicable industry and governmental standards of care." In support of this argument, Ford cites Blue v. Environmental Engineering, Inc., 215 Ill.2d 78, 293 Ill.Dec. 630, 828 N.E.2d 1128 (2005).
In Blue, the plaintiff was injured when he used his foot to push a box into a commercial trash compactor while it was running. Blue, 215 Ill.2d at 83, 293 Ill. Dec. 630, 828 N.E.2d at 1134. A consulting engineer testified for the plaintiff that the machine could have been made safe by incorporating certain safety features that were technologically available when the machine was manufactured, but he offered no testimony about the industry standard. Blue, 215 Ill.2d at 83-84, 293 Ill.Dec. 630, 828 N.E.2d at 1134. The majority opinion in Blue noted that a product suffers from a design defect when it "conforms to the intended design but the intended design itself, or its sale without adequate instructions or warnings, renders the product not reasonably safe." Blue, 215 Ill.2d at 89-90, 293 Ill.Dec. 630, 828 N.E.2d at 1137 (citing Restatement (Third) of Torts: Products Liability § 1, Comment a, at 6 (1998)). In Blue, the court cited with approval the appellate court opinions in Baltus v. Weaver Division of Kidde & Co., 199 Ill.App.3d 821, 145 Ill.Dec. 810, 557 N.E.2d 580 (1990), and Carrizales v. Rheem Manufacturing Co., 226 Ill.App.3d 20, 168 Ill. Dec. 169, 589 N.E.2d 569 (1991), and stated as follows:
"[A] plaintiff raising a negligence claim must do more than simply allege a better design for the product; he must plead and prove evidence of a standard of care by which to measure a defendant's design and establish a deviation from that standard. [Citations.] Thus, to establish a negligence claim for a defective design of a product, a plaintiff must prove that either (1) the defendant deviated from the standard of care that other manufacturers in the industry followed at the time the product was designed[] or (2) that [sic] the defendant knew or should have known, in the exercise of ordinary care, that the product was unreasonably dangerous and defendant failed to warn of its dangerous propensity." Blue, 215 Ill.2d at 96, 293 Ill.Dec. 630, 828 N.E.2d at 1141.
In dicta, the Blue majority opinion noted that since the plaintiff offered no evidence of an industry standard or its breach, the plaintiff likely failed to prove his negligent-product-design claim, although that issue was not raised by the defendant. Blue, 215 Ill.2d at 100, 293 Ill.Dec. 630, 828 N.E.2d at 1143.
We note that the precedential effect of Blue has been called into question. The Blue court described the issue before it as whether "the risk-utility analysis normally used in strict products liability cases is applicable to defective product design cases involving only a negligence theory of recovery." Blue, 215 Ill.2d at 81, 293 Ill. Dec. 630, 828 N.E.2d at 1133. Based upon the court's analysis of Baltus and Carrizales, that question was answered in the negative. Blue, 215 Ill.2d at 97, 293 Ill. Dec. 630, 828 N.E.2d at 1142. In Calles, however, the supreme court found that the appellate court erred in following the holding in Blue that the risk-utility test does not apply to negligent-product-design claims. Calles, 224 Ill.2d at 269-70, 309 Ill.Dec. 383, 864 N.E.2d at 263. As the court noted:
"There was no majority opinion in Blue holding that the risk-utility test was not applicable to negligent-product-design *369 cases. Rather, as Justice Freeman pointed out, only three Justices (Thomas, Garman, and Kilbride) concurred in this conclusion. [Citation.] As such, the conclusion that the risk-utility test is not applicable in negligent-product-design cases is not binding precedent. Accordingly, we conclude that the appellate court erred in reversing summary judgment based on Blue and we must review anew the trial court's order that Scripto owed no duty, nor breached any duty owed." Calles, 224 Ill.2d at 269-70, 309 Ill.Dec. 383, 864 N.E.2d at 263.
The court in Calles then proceeded to analyze the plaintiff's negligence claim without reference to the Blue court's requirement that the plaintiff establish a standard of care in the industry and a deviation from that standard. Rather, the court in Calles stated as follows:
"The crucial question in a negligent-design case is whether the manufacturer exercised reasonable care in the design of the product. [Citations.]
In determining whether the manufacturer's conduct was reasonable, the question is `whether in the exercise of ordinary care the manufacturer should have foreseen that the design would be hazardous to someone.' [Citations.] To show that the manufacturer acted unreasonably based on the foreseeability of harm, the plaintiff must show the manufacturer knew or should have known of the risk posed by the product design at the time of manufacture." Calles, 224 Ill.2d at 270-71, 309 Ill.Dec. 383, 864 N.E.2d at 264.
Since we believe that the plaintiffs in this case produced sufficient evidence for this case to be submitted to the jury under either Blue or Calles, the outcome in this case is not affected by these differences.
In Baltus, a mechanic, who was injured when a transmission he was working on slipped off a transmission jack and injured his hand, sued the manufacturer of the transmission jack on a negligent-design theory. Baltus, 199 Ill.App.3d at 824, 145 Ill.Dec. 810, 557 N.E.2d at 582. The plaintiff in Baltus alleged generally that the manufacturer negligently failed to design the transmission jack with appropriate safety guards and safety devices, but he had no expert testimony to support his claims. Baltus, 199 Ill.App.3d at 824-25, 145 Ill.Dec. 810, 557 N.E.2d at 582. The manufacturer presented the testimony of a registered professional engineer that the transmission jack was in a reasonably safe condition when it left the manufacturer's control and that it was manufactured and designed in a reasonably safe manner. Baltus, 199 Ill.App.3d at 825, 145 Ill.Dec. 810, 557 N.E.2d at 583. In affirming the circuit court's grant of a summary judgment to the defendant, the Baltus court compared negligent-product-design cases to medical malpractice cases and held that these cases generally require both expert testimony and proof of a standard of care against which the manufacturer's design can be judged. Baltus, 199 Ill.App.3d at 836, 145 Ill.Dec. 810, 557 N.E.2d at 589. Because the plaintiff produced no evidence of reasonable and feasible alternative designs in the industry and because his claim of negligent design was based solely upon his opinion, the evidentiary basis of his claim was insufficient to withstand a summary judgment. Baltus, 199 Ill.App.3d at 829-30, 145 Ill.Dec. 810, 557 N.E.2d at 585.
In Carrizales, the plaintiff was injured "when flammable vapors from his gasoline-soaked clothing were ignited by the flame of a gas-fired hot water heater." Carrizales, 226 Ill.App.3d at 23, 168 Ill.Dec. 169, 589 N.E.2d at 571-72. The plaintiff's negligent-product-design claim was dismissed by the trial court. Carrizales, 226 Ill. *370 App.3d at 23, 168 Ill.Dec. 169, 589 N.E.2d at 572. On appeal, the court reversed the dismissal of the plaintiff's failure-to-warn claim, but it affirmed the dismissal of the negligent-product-design claim, stating as follows:
"Plaintiff in this case failed to plead facts alleging that other manufacturers designed heaters with any of the alternative safety features or designs that plaintiff set out in his complaint. Because plaintiff does not establish a standard of care by which to measure defendant's design, it cannot be determined by the pleadings whether defendant negligently manufactured a defective product because it did not conform to such a standard. In a complex products liability case such as this, we may not find defendant negligently designed the heater by simply relying on plaintiff's opinion." Carrizales, 226 Ill.App.3d at 37, 168 Ill.Dec. 169, 589 N.E.2d at 581.
Ford asserts that plaintiffs failed to prove a standard of care and a deviation from that standard. We disagree. This is not a case like Blue, Baltus, or Carrizales where the plaintiff failed to present expert testimony or any evidence of feasible alternative designs used by other manufacturers in the industry. Here, the plaintiffs presented ample evidence of a standard of care to support their negligent-product-design claims.
The plaintiffs' expert, Mark Arndt, and virtually every engineer who testified for Ford agreed to the general engineering standard of care in the design of complex products, and each witness stated that standard in nearly identical terms. Once a design engineer identifies a potential hazard in a product, he is obligated to attempt to design the hazard out of the product. If he is unable to do so, he should design a shield or guard to eliminate the hazard. If that is impossible, he should warn the consumer about the hazard. Not only did all the engineers who testified on the subject agree that these are the obligations of the design engineer but the evidence revealed that Ford specifically taught these principles to its own design engineers. Proof of this general engineering standard alone has been held sufficient. See Sobczak v. General Motors Corp., 373 Ill.App.3d 910, 918, 924, 312 Ill.Dec. 682, 871 N.E.2d 82, 90, 94-95 (2007) (the appellate court reversed the finding of the trial court that the plaintiff had failed to prove a standard of care, where the plaintiff's expert testified that the standard of care within the engineering industry is that "`when you identify a potential hazard that affects the safety to the passengers, you need to guard against that hazard and prevent it from causing some risk or danger to the occupants of the vehicle'").
In this case, however, the plaintiffs' proof goes much further. The plaintiffs' expert, Mark Arndt, testified that, at the time the 1993 Lincoln Town Car was manufactured, other automobile manufacturers were producing automobiles with the fuel tank located forward of the axle. Arndt expressed the opinion that Ford was negligent in the design of the 1993 Lincoln Town Car in that, at the time it was produced, a safer and more practical location for the fuel tank would have been forward of the axle. Arndt further opined that if Ford chose to locate the fuel tank aft of the axle, it should have designed guards or shields which would have protected the tank from being punctured by component parts of the vehicle and trunk contents and which would have required users of the vehicle to align trunk contents laterally. Specifically, feasible shield designs suggested by Arndt included the very designs Ford adopted in its Upgrade Kit and Trunk Pack in response to concerns by police agencies that officers were being *371 injured and killed when trunk contents punctured fuel tanks in Panther platform police vehicles. Finally, it was Arndt's opinion that Ford should have warned users of the danger of objects in the trunk puncturing the fuel tank. Thus, unlike Blue, Baltus, or Carrizales, the plaintiffs in this case presented expert testimony that the product was defective and evidence of an alternative product design in existence in the industry.
Further, the plaintiffs proved that, as early as the 1960s, Ford's own engineers were aware of the potential dangers of an aft-of-the-axle fuel tank location, including the danger of trunk contents puncturing the tank in a collision. Ford's engineers recommended at that time that future automobiles be designed with the tank located above the axle. Ford's witnesses admitted that, beginning in 1981 with the design of the Ford Escort, every new passenger car designed by Ford has been designed with the fuel tank located forward of the axle. The plaintiffs presented evidence that by 1991 a majority of new passenger cars manufactured had fuel tanks located forward of the axle, and that, at the time of the trial, the Panther platform and the Mustang were the only types of vehicles Ford still manufactured with an aft-of-the-axle fuel tank. Thus, the plaintiffs not only presented evidence of feasible alternative designs existing in the industry but also presented evidence of a clear trend in the industry, including at Ford, to eliminate the aft-of-the-axle fuel tank design.
Finally, we note that it was Ford's own instruction that was given to the jury on negligence and the standard of care. That instruction provided as follows:
"When I use the word `negligence' in these instructions, I mean the failure to do something which a reasonably careful manufacturer would do, or the doing of something which a reasonably careful manufacturer would not do, under circumstances similar to those shown by the evidence. The law does not say how a reasonably careful manufacturer would act under those circumstances. That is for you to decide.
To establish a negligence claim for a defective design of a product, a plaintiff must prove that the defendant deviated from its own standard or from the standard of care in the industry when the product was designed. That means it was the duty of the defendant to use ordinary care for the safety of plaintiffs with respect to the design of the 1993 Lincoln Town Car.
When I use the words `ordinary care', I mean the care a reasonably careful manufacturer would use under circumstances similar to those shown by the evidence. The law does not say how a reasonably careful manufacturer would act under those circumstances. That is for you to decide." (Emphasis added.)
Thus, the jury was instructed, at Ford's request, that it is sufficient proof of negligence if the defendant deviated from its own standard of care. The evidence was clear at the trial that Ford's preferred design after 1981 was for the fuel tank to be located forward of the axle. Ford can hardly complain if the jury was instructed, at its request, that it was sufficient for the plaintiffs to prove that Ford deviated from its own standard of care in the design of the 1993 Lincoln Town Car.
We believe that the plaintiffs presented sufficient evidence on the standard of care to justify the submission of their first three claims of negligence to the jury. By far, the primary focus of the evidence in this case was upon the issue of the appropriate location of the fuel tank. The plaintiffs presented extensive evidence of alternative fuel tank locations recognized and *372 used in the automobile industry, including at Ford. The evidence revealed that Ford's engineers were well aware of the danger of an aft-of-the-axle fuel tank being punctured in a rear-end collision, including by trunk contents, long before the manufacture of the 1993 Lincoln Town Car. The plaintiffs alleged that Ford should have either moved the fuel tank to a safer location or provided a guard or shield to prevent a puncture of the fuel tank by component parts of the vehicle or trunk contents or warned consumers about the danger of trunk contents puncturing the fuel tank. There was ample evidence on the standard of care to justify the submission of these claims to the jury, and the trial court did not err in denying Ford's motion for a judgment notwithstanding the verdict on that basis.
We note that Ford also argues that the plaintiffs failed to offer any evidence on the issue of proximate cause with respect to the failure-to-guard and failure-to-warn claims. This argument is without merit. Proximate cause is generally a fact question for the jury to determine. Mack v. Ford Motor Co., 283 Ill.App.3d 52, 57, 218 Ill.Dec. 465, 669 N.E.2d 608, 612 (1996). Evidence presented by the plaintiffs revealed that Ford conducted crash testing of Panther vehicles at 75 miles per hour after the installation of the guards developed for police vehicles, with no penetration of the fuel tank. This evidence alone is sufficient to create a fact question on the issue of whether the failure to provide guards for the fuel tank proximately caused the Jablonskis' injuries. Likewise, there was ample evidence that loading tools and other items into the trunk in a lateral position reduces the likelihood of those items puncturing the fuel tank in a high-speed rear-end collision. No warning to that effect was given, and we believe a fact question existed about whether that failure to warn was a proximate cause of the Jablonskis' injuries.
We have carefully reviewed the record in this case, and we believe that the plaintiffs' claims of negligence based upon the location of the fuel tank, the failure to guard the fuel tank, and the failure to warn of the danger of trunk contents penetrating the fuel tank were properly submitted to the jury. The plaintiffs supported those claims with evidence from which reasonable jurors could conclude that Ford was negligent. Likewise, Ford defended those claims with the testimony of experts that the fuel system in the 1993 Lincoln Town Car was not defective, that it was not negligently designed, and that it met all the industry and government safety standards. The jury heard conflicting evidence and determined the facts based upon that evidence.
2.
Failure to Inform of Trunk Pack and Trunk Pack Recommendations Claim
We next examine separately the plaintiffs' fourth claim of negligence that was submitted to the jury. That claim alleged that Ford was negligent in "[f]ailing to inform of the existence of the Trunk Pack and/or Trunk Pack Recommendations." Ford attacks the submission of this claim to the jury on several fronts. First, Ford argues that there is no postsale duty to warn in Illinois and that, since the evidence is clear that the Trunk Pack and Trunk Pack Recommendations did not exist until long after the manufacture of the 1993 Lincoln Town Car, the trial court submitted a claim which is not recognized under Illinois law. Second, Ford argues that no postsale-duty-to-warn claim was pleaded until after the trial and that it was prejudiced by the allowance of late amendments to include this claim. Finally, Ford argues that even if this claim was recognized *373 under Illinois law, it should not have been submitted to the jury because the plaintiffs failed to prove that Ford breached a recognized standard of care or that the postsale failure to warn caused their injuries. Ford asserts that the submission of this claim entitles it to a new trial.
The plaintiffs counter that any error in submitting this claim was cured by the entry of a general verdict. The plaintiffs argue, however, that the submission of this claim was not error in that, under Illinois law, a manufacturer who has a duty to warn at the time a product leaves its control has a continuing duty to warn of that defect. The plaintiffs further assert that Ford was well aware, in advance of the trial, of the plaintiffs' claims based upon Ford's failure to warn consumers about the Trunk Pack and Trunk Pack Recommendations and cannot claim surprise and prejudice in the submission of this claim. Finally, the plaintiffs argue that sufficient evidence was presented for the submission of this claim to the jury.
a.
General Verdict
We begin our analysis of this issue by examining whether the return of a general verdict cures any error in the submission of the fourth claim. The plaintiffs claim that section 2-1201(d) of the Code of Civil Procedure (735 ILCS 5/2-1201(d) (West 2004)) governs this issue. That section provides as follows:
"(d) If several grounds of recovery are pleaded in support of the same claim, whether in the same or different counts, an entire verdict rendered for that claim shall not be set aside or reversed for the reason that any ground is defective, if one or more of the grounds is sufficient to sustain the verdict; nor shall the verdict be set aside or reversed for the reason that the evidence in support of any ground is insufficient to sustain a recovery thereon, unless before the case was submitted to the jury a motion was made to withdraw that ground from the jury on account of insufficient evidence and it appears that the denial of the motion was prejudicial." 735 ILCS 5/2-1201(d) (West 2004).
The plaintiffs focus upon the first portion of the statute providing that a general verdict shall not be set aside or reversed if any one of several grounds is sufficient to sustain the verdict. The plaintiffs argue that their continuing-duty-to-warn claim was properly presented to the jury but that even if the trial court erred in submitting that claim, any error was cured by the entry of a general verdict, since the plaintiffs' other three claims of negligence were properly submitted and it is impossible to determine upon which of the claims the jury based its verdict. Ford focuses upon the latter part of the statute, points out that it did request that all four claims of negligence be withdrawn from the jury, and argues that even if the other three claims of negligence were properly submitted to the jury, the submission of the plaintiffs' "unsupported, unpleaded[,] and unrecognized" postsale-duty-to-warn claim was prejudicial, entitling Ford to a new trial. We agree with the plaintiffs.
It has long been the rule in Illinois that where there is a general verdict and several claims are presented, the verdict will be upheld against a challenge that a claim is defective, if there is sufficient evidence for any one or more claims, and the defendant cannot claim prejudice if he failed to request separate verdicts or special interrogatories to determine upon which claims the jury found for the plaintiff. Moore v. Jewel Tea Co., 46 Ill.2d 288, 294, 263 N.E.2d 103, 106 (1970) ("It is settled law that where several causes of actions are charged and a general verdict *374 results, the verdict will be sustained if there are one or more good causes of action or counts to support it," and the defendants, having failed "to ascertain upon which count or counts the jury returned its verdicts * * * by submitting a separate form of verdict as to each count" "cannot complain or seek to take advantage of their failure"); Witherell v. Weimer, 118 Ill.2d 321, 329, 113 Ill.Dec. 259, 515 N.E.2d 68, 72 (1987) ("When there is a general verdict and more than one theory is presented, the verdict will be upheld if there was sufficient evidence to sustain either theory, and the defendant, having failed to request special interrogatories, cannot complain"); Dillon v. Evanston Hospital, 199 Ill.2d 483, 492, 264 Ill.Dec. 653, 771 N.E.2d 357, 363 (2002) (in a medical malpractice action where the defendants claimed prejudice in the untimely assertion of an additional claim of negligence that was submitted to the jury, the supreme court refused to set aside a general verdict, which was supported by sufficient evidence on other theories, where the defendants failed to request special interrogatories and there was therefore "no way of knowing on what theory the jury found defendants negligent").
The rule sustaining a general verdict if it is supported by one or more good theories has been applied equally to defense verdicts. Krklus v. Stanley, 359 Ill.App.3d 471, 479, 295 Ill.Dec. 746, 833 N.E.2d 952, 959-60 (2005) (in a medical malpractice action where the plaintiff complained that the issue of contributory negligence should not have been submitted to the jury, a general verdict for the defendants was sustained where the verdict could be based either on a finding that the defendants were not negligent or on a finding that the plaintiff's contributory negligence was more than 50% of the total fault and where the plaintiff failed to submit special interrogatories to determine the basis of the jury's findings); Orzel v. Szewczyk, 391 Ill.App.3d 283, 290, 330 Ill.Dec. 381, 908 N.E.2d 569, 575 (2009) (in a legal malpractice action, a general verdict for the defendants was sustained against a claim of prejudice in submitting a claim of contributory negligence where the verdict could have been based upon a finding that the plaintiff failed to prove negligence and where the plaintiff did not submit special interrogatories).
The court in Foley v. Fletcher, 361 Ill. App.3d 39, 296 Ill.Dec. 916, 836 N.E.2d 667 (2005), provided an excellent explanation of the general-verdict rule. Foley was a medical malpractice case in which the jury was instructed upon four possible theories of negligence. The jury returned a general verdict for the plaintiffs, and neither side requested special interrogatories to determine upon which theories the jury found the defendants negligent. The defendants claimed prejudice in the submission of the fourth theory, arguing that it was based upon an expert opinion allowed in violation of Supreme Court Rule 213 (210 Ill.2d R. 213). Because of its application to this case, we quote extensively from the Foley opinion:
"Plaintiffs claim there was enough evidence to support the jury's verdict under theories, `a,' `b[,'] and `c,' so even if theory `d' was tainted by a Rule 213 violation, reversal would not be necessary. Plaintiffs contend that one defective theory of liability will not disturb a general verdict where there was sufficient evidence to sustain the other theories. * * *
* * *
Defendants contend section 2-1201(d) notwithstanding, the entire verdict must be set aside here because the facts conform to an exception to the general rule that one defective ground is not enough *375 to defeat a verdict. Defendants focus on the clause, `unless before the case was submitted to the jury a motion was made to withdraw that ground from the jury on account of insufficient evidence and it appears that the denial of the motion was prejudicial.' [Citation.] Defendants allege that the criteria in the exception were met because: (1) defendants moved to withdraw theory `d' before the case was submitted to the jury; (2) their basis for the motion was [an opinion witness's] improperly admitted and therefore insufficient evidence; (3) the trial court then denied their motion; and (4) the denial resulted in prejudice to defendants.
But defendants are unable to show prejudice because they cannot show that the jury based its verdict on the instruction at issue. Neither side requested special interrogatories under section 2-1108 of the Code. [Citation.] A defendant cannot expect recourse where a plaintiff presents more than one theory of her case, the defendant does not request special interrogatories[,] and the jury returns a general verdict. [Citations.] Nor can it be presumed that reversal is warranted because the jury was misled by the court's instruction unless there is some indication that the jury was improperly influenced. [Citation.] Without the jury's answer to a special interrogatory on theory `d,' we could not conclude that defendants were prejudiced even if [the opinion witness's] testimony was admitted in error." Foley, 361 Ill.App.3d at 49-50, 296 Ill.Dec. 916, 836 N.E.2d at 676.
The pertinent facts in this case are almost identical to those in Foley. The plaintiffs presented four theories of negligence. We have already determined that the first three theories were properly submitted; therefore, only the fourth theory remains in question. Ford moved to withdraw the fourth theory before the case was submitted to the jury, arguing that the evidence supporting that theory was improperly admitted. The trial court denied Ford's motion and submitted the fourth theory. Ford now claims prejudice resulting from the submission of the fourth theory, entitling it to a new trial.
As in Foley, Ford cannot claim prejudice, because it failed to submit special interrogatories from which the basis of the jury's finding of negligence could be determined.[2] Since Ford submitted no special interrogatories to determine whether the jury relied upon the plaintiffs' fourth theory of negligence"[f]ailing to inform of the existence of the Trunk Pack and/or Trunk Pack Recommendations," we have no way of determining whether that theory played any role in the jury's decision. On the record before us, the jury might have based its decision entirely upon one or more of the plaintiffs' other claims of negligence, without considering the fourth claim at all. Since Ford failed to submit special interrogatories to determine this issue, it cannot now claim prejudice. Consequently, even if the plaintiffs' fourth claim of negligence was improperly submitted and was based upon inadmissible evidence, we must sustain the general verdict.
b.
Continuing Duty to Warn
Regardless of the foregoing, we find no error in the submission of the *376 plaintiffs' fourth claim of negligence. "The decision to give or deny an instruction is within the trial court's discretion. The standard for determining an abuse of discretion is whether, taken as a whole, the instructions are sufficiently clear so as not to mislead and whether they fairly and correctly state the law." Dillon, 199 Ill.2d at 505, 264 Ill.Dec. 653, 771 N.E.2d at 371. We do not believe that the trial court abused its discretion in instructing the jury on the plaintiffs' fourth claim of negligence.
The parties correctly discuss this issue under a failure-to-warn analysis. The instruction in question only asserts that Ford was negligent in "[f]ailing to inform" about the "Trunk Pack and/or Trunk Pack Recommendations." No claim is made that Ford had a duty to retrofit the Jablonskis' 1993 Lincoln Town Car with the Trunk Pack. Ford argues that there is no postsale duty to warn under Illinois law. Although the plaintiffs urge us to adopt that rule, they agree that Illinois law does not generally impose upon a manufacturer a postsale duty to warn of hazards first discovered after a product has left its control. They argue, however, that if a manufacturer knew or should have known of the hazard at the time of manufacture, so that a duty to warn existed when the product left its control, that duty to warn is continuous. Thus, the plaintiffs argue, if a manufacturer later develops safety features or safety information for the purpose of protecting consumers from a hazard of which it had knowledge at the time the product was originally sold, it has a duty to use reasonable care to inform users of the product of the existence of those safety features and information. We agree with the plaintiffs.
First, it is incorrect to state that no Illinois case has imposed a postsale duty to warn of hazards discovered after a product is sold, because that duty has been clearly imposed for pharmaceutical products. A drug manufacturer has a "`continuous duty * * * to warn physicians of the dangers incident to prescribing the drug, to keep abreast of scientific developments touching upon the manufacturer's product[,] and to notify the medical profession of any additional side effects discovered from its use.'" (Emphasis in original.) Proctor v. Davis, 291 Ill.App.3d 265, 278, 225 Ill.Dec. 126, 682 N.E.2d 1203, 1211 (1997) (quoting Schenebeck v. Sterling Drug, Inc., 423 F.2d 919, 922 (8th Cir. 1970)). The need to impose a continuing duty to warn upon a pharmaceutical manufacturer is evident. Illinois cases involving other products and analyzing whether a manufacturer has a postsale duty to warn decline to impose that duty, unless the manufacturer knew or should have known of the hazard at the time the product was manufactured.
Likewise, the cases cited by Ford decline to impose a postsale duty to warn of a hazard discovered after manufacture but suggest that a continuous duty to warn exists if the manufacturer knew or should have known of the hazard when the product left its control. In Collins v. Hyster Co., 174 Ill.App.3d 972, 124 Ill.Dec. 483, 529 N.E.2d 303 (1988), the plaintiff was injured on a forklift. The trial court struck certain allegations of negligence based upon a continuing duty to warn. The specific allegations are not detailed in the opinion. The court stated as follows:
"[T]he trial court's ruling is correct in that we have not discovered any authority in Illinois for extending the duty to warn beyond the time when the product left the manufacturer's control unless Hyster knew or should have known at that time that the product was defective. Here, there is no evidence that Hyster should have known the product was defective *377 at the time it left Hyster's control of which it would have had a continuing duty to warn against in the event the hazard was discovered subsequent to the time it left the manufacturer's control. Certainly the law does not contemplate placing the onerous duty on manufacturers to subsequently warn all foreseeable users of products based on increased design or manufacture expertise that was not present at the time the product left its control." (Emphasis added.) Collins, 174 Ill.App.3d at 977, 124 Ill.Dec. 483, 529 N.E.2d at 306.
Thus, in Collins, the court declined to impose a postsale duty to warn, but that ruling was not applied to circumstances in which the manufacturer knew that the product was defective when it left its control.
In Kempes v. Dunlop Tire & Rubber Corp., 192 Ill.App.3d 209, 139 Ill.Dec. 259, 548 N.E.2d 644 (1989), a child was injured when he cut into a golf ball and the paste center squirted into his right eye. There was no evidence in the record from which it could be determined that the manufacturer knew or should have known of the existence of that danger at the time the golf ball was manufactured. The court stated, "`[T]o hold a manufacturer liable for failure to know of a danger of which it would be impossible to know based on the present state of human knowledge would make the manufacturer a virtual insurer of the product * * *.'" (Emphasis in original.) Kempes, 192 Ill.App.3d at 218, 139 Ill.Dec. 259, 548 N.E.2d at 649 (quoting Woodill v. Parke Davis & Co., 79 Ill.2d 26, 37, 37 Ill.Dec. 304, 402 N.E.2d 194, 199 (1980)). Then the court simply asserted that there is no duty to warn beyond the time a product leaves the manufacturer's control "`unless it knew or should have known at that time that the product was defective.'" Kempes, 192 Ill.App.3d at 218, 139 Ill.Dec. 259, 548 N.E.2d at 649 (quoting Collins, 174 Ill.App.3d at 977, 124 Ill. Dec. 483, 529 N.E.2d at 306). Again, nothing in Kempes suggests that a postsale, continuing duty to warn would not be imposed upon a manufacturer who knew or should have known of the hazard when the product left its control.
Finally, in Modelski v. Navistar International Transportation Corp., 302 Ill. App.3d 879, 236 Ill.Dec. 394, 707 N.E.2d 239 (1999), the plaintiff alleged that the plaintiff's decedent was injured and died as a result of the negligent design of the seat assembly on a Farmall tractor manufactured by the defendant. The plaintiff alleged, in part, that the defendant Navistar International Transportation Corp. was negligent in failing to provide postsale warnings to foreseeable users after learning of the hazard presented by the seat assembly and in failing to retrofit the seat assembly postsale to eliminate the hazard. Those allegations were stricken by the trial court, and a judgment was entered upon a jury verdict for the defendant.
The court in Modelski made a clear distinction between a duty to warn of hazards of which the manufacturer had knowledge at the time the product was manufactured and those of which there was no such knowledge. It is clear that it was the latter which was at issue in Modelski, because the court described the claims of the parties as follows:
"In this case, Navistar argues that it was under no legally recognized duty to warn foreseeable users of any dangers associated with the use of its Farmall Model 450 tractor of which it was not aware, nor should it have been, when the tractor left its control. The plaintiff contends that the manufacturer of a product is under a continuing duty to warn of hazards associated with the use of its products, even those hazards discovered *378 post[]sale." Modelski, 302 Ill. App.3d at 887, 236 Ill.Dec. 394, 707 N.E.2d at 246.
On the precise question presented, the court declined to extend the duty to warn postsale to hazards first discovered after the product left the manufacturer's control. With regard to hazards of which the manufacturer knew or should have known at the time the product was manufactured, however, the court held as follows:
"A manufacturer, reasonably aware of a dangerous propensity of its product, has a duty to warn foreseeable users where there is unequal knowledge, actual or constructive, and it knows or should know that harm might or could occur if no warning is given. Failure to warn under such circumstances can expose the manufacturer to liability for negligence. [Citation.] Manufacturers are charged with the knowledge of experts. [Citation.] Given that presumed degree of knowledge, a manufacturer's subjective understanding of the dangers associated with the use of its products, while relevant, is not determinative of its obligation to warn. Rather, it is sufficient to impose a duty to warn if an expert in the field would have known of the product's dangerous propensity and foreseen injury in the absence of a warning. Under such circumstance, the duty to warn may well be continuous." (Emphasis added.) Modelski, 302 Ill.App.3d at 887-88, 236 Ill.Dec. 394, 707 N.E.2d at 246.
As the above analysis indicates, the cases cited by Ford stand for the proposition that a manufacturer has no duty in Illinois to provide a postsale warning when the manufacturer had no reason to know of the hazard when the product left its control. The same cases, however, impose a continuing duty to warn of hazards of which a manufacturer knew or should have known at the time the product was manufactured. We believe that this is a commonsense rule. It would make no sense for a duty to warn, which already exists, to disappear after a hazardous product leaves the control of the manufacturer. Sound public policy requires that a manufacturer be held to a continuing duty to warn of a hazard and to notify consumers of its product if the hazard can be avoided. We hold that a manufacturer has a continuing duty to warn of a hazard of which it had a duty to warn at the time the product was manufactured, including using reasonable care to inform foreseeable users of product developments designed to eliminate the hazard.
The plaintiffs urge us to go further and adopt a postsale duty to warn of hazards first discovered after a product leaves the control of a manufacturer. We note the growing list of jurisdictions which have recognized that duty.[3] We are specifically urged to adopt section 10 of the Restatement *379 (Third) of Torts: Products Liability (Restatement (Third) of Torts: Products Liability § 10 (1998)).[4] However, in order to decide the issues in this case, we do not need to determine whether Illinois should adopt a postsale duty to warn of hazards not discovered until after a product leaves the manufacturer's control. Therefore, we offer no opinion on that issue.
Here, Ford was well aware of the danger of fuel tanks being punctured by trunk contents in rear-end collisions long before the Jablonskis' 1993 Lincoln Town Car was manufactured. The evidence disclosed that, as early as 1970, Ford's own design engineers were considering the danger from trunk contents in determining the fuel tank location in its automobiles. This hazard was not just foreseeable by Ford; it was, in fact, foreseen. In addition to having actual knowledge of the hazard, Ford was aware that there were a substantial number of accidents before the manufacture of the Jablonskis' automobile in which the fuel tank was ruptured in Ford vehicles. The plaintiffs introduced into evidence a list of 416 such accidents, compiled by Ford in 1992, which revealed 378 fatal burn injuries. Thus, at the time the Jablonski vehicle left Ford's control, Ford knew that serious and fatal burn injuries were resulting from fuel tank ruptures in automobile collisions and that the trunk's contents could potentially cause such a rupture. As we have already determined, this evidence was sufficient to submit to the jury the issue of whether Ford was negligent in "[f]ailing to warn of the risk of trunk contents puncturing the fuel tank."
Ford's obligation to warn of this hazard was a continuing duty, and after the manufacture of the Jablonski automobile, Ford continued to gain information from which it could reasonably conclude that a warning was necessary. Between 1993 and 2003 Ford became aware of rear-end collisions involving Panther platform Police Interceptors in which police officers were killed or seriously injured when the fuel tanks were punctured by trunk contents or component parts of the automobile. Those accidents prompted complaints by police agencies and an NHTSA investigation. As a consequence, in 2001, Ford issued a TSB to all the Ford dealers to make modifications to Panther vehicles to avoid the puncture of the fuel tanks by component parts. In 2002, as a result of negotiations with the Arizona Attorney General, Ford developed an Upgrade Kit, consisting of shields to prevent punctures by component parts, and a Trunk Pack, which was a drop-in trunk liner designed to prevent fuel tank rupture by trunk contents, to be used in Panther platform Police Interceptor vehicles. In addition, Trunk Packing Considerations were developed that instructed police officers on ways to pack *380 equipment in the trunk, with or without the Trunk Pack, in order to reduce the danger of trunk contents rupturing the fuel tank in high-speed rear-end collisions. Ford determined that the hazard of fuel tank ruptures required that it give postsale warnings to all the registered owners of police vehicles, all the United States Ford, Lincoln and Mercury dealers, and 32,000 government fleet customers.
We believe that the circumstances of this case warranted instructing the jury upon Ford's continuing duty to warn of the danger of trunk contents puncturing the fuel tank. Since Ford specifically developed the Trunk Pack and Trunk Packing Considerations for the purpose of reducing or eliminating that danger, we believe that it was appropriate to allow the jury to determine whether Ford was negligent in failing to inform the plaintiffs of their existence. Further, the trial court did not abuse its discretion in the manner in which it instructed the jury on this issue.
First, the trial court gave Ford's instructions on its duty to warn. Those instructions stated as follows:
"To establish a negligence claim for a failure to warn, the plaintiff must prove that the defendant knew or should have known, in the exercise of ordinary care, that the product was unreasonably dangerous and defendant failed to warn of its dangerous propensity."
"The manufacturer has a duty to adequately warn the consumer about the dangers of its product of which it knew, or, in the exercise of ordinary care, should have known, at the time the product left the manufacturer's control."
Ford's instructions accurately stated the law on Ford's duty to warn based upon what it knew or should have known when the 1993 Lincoln Town Car left Ford's control, but they do not limit the jury to warnings given at that time.
The trial court also gave two instructions submitted by the plaintiffs to guide the jury in determining if Ford was negligent in failing to give a postsale warning. These instructions must be read in conjunction with Ford's instructions on the duty to warn. The first instruction was patterned after Section 10 of Restatement (Third) of Torts: Products Liability, and it instructed the jury as follows:
"One engaged in the business of selling or otherwise distributing products is subject to liability for harm to persons caused by the seller's failure to provide a warning after the time of sale or distribution of a product if a reasonably careful person in the seller's position would provide such a warning under the circumstances.
A reasonably careful person in the seller's position would provide a warning after the time of sale if:
The seller knows or reasonably should know that the product poses a substantial risk of harm to persons; and
Those to whom a warning might be provided can be identified and can reasonably be assumed to be unaware of the risk of harm; and
A warning can be effectively communicated to and acted on by those to whom a warning might be provided; and
The risk of harm is sufficiently great to justify the burden of providing a warning.
Whether or not Ford Motor Company acted as a reasonably careful person under the circumstances of this case is for you to decide."
The second instruction submitted by the plaintiffs was based upon a voluntary-undertaking theory, and it stated as follows:
*381 "A manufacturer who voluntarily undertakes to provide an after[-]the[-]sale warning to some of its customers may be subject to liability if it does not warn other customers.
Whether the manufacturer's conduct in warning some of its customers and not others was reasonable under the circumstances is for you to decide."
None of the instructions given suggested that Ford was required to warn of hazards it should not have discovered before the 1993 Lincoln Town Car left its control.
"In Illinois, the parties are entitled to have the jury instructed on the issues presented, the principles of law to be applied, and the necessary facts to be proved to support its verdict." Dillon, 199 Ill.2d at 505, 264 Ill.Dec. 653, 771 N.E.2d at 371. There are no pattern jury instructions describing the circumstances under which a manufacturer may be held liable for failing to give a postsale warning. In situations where pattern instructions are inadequate and additional instructions are appropriate, nonpattern instructions may be given so long as they are "simple, brief, impartial, and nonargumentative." Magna Trust Co. v. Illinois Central R.R. Co., 313 Ill.App.3d 375, 388, 245 Ill.Dec. 715, 728 N.E.2d 797, 808 (2000); 177 Ill.2d R. 239(a).
As we have already indicated, we believe that the evidence in this case was sufficient to allow the jury to determine whether Ford was negligent in "[f]ailing to inform of the existence of the Trunk Pack and/or Trunk Pack Recommendations." Under the facts in this case, we believe that the instruction modeled after Section 10 of Restatement (Third) of Torts: Products Liability, was appropriately given to guide the jury in making that determination. Further, since the evidence revealed that Ford made a decision to give a postsale warning to some of its customers, we believe that the voluntary-undertaking instruction was appropriate, under the facts of this case, to guide the jury in determining whether Ford was negligent in failing to warn its other customers. Taken as a whole, the instructions were clear and fairly and accurately stated the law. Dillon, 199 Ill.2d at 505, 264 Ill.Dec. 653, 771 N.E.2d at 371. Accordingly, we do not believe that the trial court erred in instructing the jury on the issue of postsale warnings.
Ford also argues that it was prejudiced because the trial court allowed the plaintiffs to plead their fourth allegation of negligence based upon a postsale failure to warn in an amended complaint filed after the trial and for the purpose of conforming the pleadings to the proof. Ford cannot claim surprise at the introduction of this evidence. The record reflects that Ford was well aware of the evidence supporting the plaintiffs' postsale-warning claim and filed pretrial motions seeking to exclude that evidence, which were denied. "A pleading may be amended at any time, before or after judgment, to conform the pleadings to the proofs * * *." 735 ILCS 5/2-616(c) (West 2004). Section 2-616(c) of the Code of Civil Procedure (735 ILCS 5/2-616(c) (West 2004)) should be liberally construed, and "[a]ny doubt as to whether pleadings should be amended should be resolved in favor of the amendment." Deming v. Montgomery, 180 Ill.App.3d 527, 533, 129 Ill.Dec. 466, 536 N.E.2d 150, 154 (1989). We do not believe that the trial court abused its discretion in allowing the amendment.
Finally, Ford argues that the evidence was insufficient to justify submitting the plaintiffs' fourth claim of negligence to the jury. We see no reason to restate the evidence in this regard. The Trunk Pack and Trunk Packing Considerations were specifically developed by Ford to reduce *382 the hazard of the trunk's contents puncturing the fuel tank in Panther platform police vehicles. Ford makes no claim that the use of the Trunk Pack and Trunk Packing Considerations would not perform the same function in other Panther platform vehicles. Rather, Ford simply claims that police vehicles have a greater exposure to the risk of high-speed rear-end collisions and that it was therefore not negligent for failing to inform owners of civilian vehicles of the existence of the Trunk Pack and Trunk Packing Considerations. After a careful review of the record in this case, we believe that the questions of whether Ford was negligent in failing to warn of the danger of trunk contents puncturing the fuel tank and whether it was negligent in failing to inform users of postsale developments designed to reduce that hazard are questions peculiarly appropriate for a jury to decide.
The plaintiffs and Ford were each allowed an adequate opportunity to present evidence on the issues in this case. We find no error in the trial court's submission of the plaintiffs' first three claims of negligence. Any one of those claims is sufficient to support the general verdict in favor of the plaintiffs, and since Ford failed to submit special interrogatories to determine upon which claims of negligence the jury's decision was based, it cannot claim prejudice in the submission of the plaintiffs' fourth claim of negligence based upon a continuing duty to warn. While we would sustain the general verdict even if the continuing-duty-to-warn claim was submitted in error, under the peculiar facts of this case, we find no error in the submission of that claim. Thus, the trial court did not err in denying Ford's motion for a judgment notwithstanding the verdict or for a new trial based upon the submission to the jury of the plaintiffs' four claims of negligence.
B.
Evidentiary Rulings
Ford raises three issues in which it claims that the trial court erred in ruling upon the admission of evidence. Ford argues that it was error for the court to admit any evidence about its preinjury, postsale design efforts to improve Panther platform Police Interceptors, that it was error to admit the plaintiffs' exhibit listing 416 previous accidents as similar incidents, and that the court erred in refusing to allow Ford to introduce evidence that the 1993 Lincoln Town Car complied with the version of FMVSS 301 scheduled to first apply to 2006 model vehicles. "Evidentiary rulings are within the sound discretion of the trial court and will be upheld absent an abuse of discretion that resulted in prejudice to the objecting party." Stallings v. Black & Decker (U.S.), Inc., 342 Ill.App.3d 676, 683, 277 Ill.Dec. 428, 796 N.E.2d 143, 149 (2003). "An abuse of discretion occurs when no reasonable person would rule as the circuit court ruled." Aguirre v. City of Chicago, 382 Ill.App.3d 89, 98, 320 Ill.Dec. 512, 887 N.E.2d 656, 663 (2008). With these principles in mind, we will consider each of Ford's claims of error.
1.
Panther Platform Police Interceptor Evidence
Ford first challenges the trial court's rulings allowing testimony and exhibits pertaining to its development of additional safety features for the Police Interceptor during the 10-year period after the manufacture of the Jablonski vehicle, but before the accident. Ford specifically argues that the court committed reversible error, requiring a new trial, by allowing the introduction of evidence of the Upgrade Kit, *383 the TSB that Ford sent to its dealers, the Trunk Pack and Trunk Packing Considerations, and testimony about Ford's activities to improve the safety of the Police Interceptor through the development of those items. The basis of Ford's objection to this evidence is that it violates the rule against the introduction of subsequent remedial measures.
As has been succinctly stated by the supreme court, "Evidence of post[]accident remedial measures is not admissible to prove prior negligence." Herzog v. Lexington Township, 167 Ill.2d 288, 300, 212 Ill.Dec. 581, 657 N.E.2d 926, 932 (1995). The policy reasons for the rule were described by the Herzog court as follows:
"Several considerations support this general rule. First, a strong public policy favors encouraging improvements to enhance public safety. [Citation.] Second, subsequent remedial measures are not considered sufficiently probative of prior negligence, because later carefulness may simply be an attempt to exercise the highest standard of care. [Citation.] Third is a general concern that a jury may view such conduct as an admission of negligence." Herzog, 167 Ill.2d at 300, 212 Ill.Dec. 581, 657 N.E.2d at 932.
However, the court further noted, "Although evidence of subsequent remedial measures is not admissible to prove prior negligence, such evidence may be admissible for other purposes." Herzog, 167 Ill.2d at 300, 212 Ill.Dec. 581, 657 N.E.2d at 932. "Generally, evidence of subsequent remedial measures is not admissible as proof of negligence, although it may be introduced as to feasibility of design." Carrizales, 226 Ill.App.3d at 40, 168 Ill.Dec. 169, 589 N.E.2d at 583. "Evidence of the feasibility of an alternative design is relevant and material in an action alleging an unreasonably dangerous product under both negligence and strict liability theories." Stallings, 342 Ill.App.3d at 684, 277 Ill.Dec. 428, 796 N.E.2d at 149.
Analyzing this issue as framed by Ford, we believe that the evidence to which Ford objects falls within the alternative-feasible-design exception to the subsequent-remedial-measures rule. It is clear from the evidence that the Upgrade Kit, the Trunk Pack, and the Trunk Packing Considerations were developed by Ford for the purpose of reducing the risk of the fuel tank being punctured by component parts and trunk contents in high-speed rear-end collisions. This is the very hazard that the plaintiffs alleged was the cause of their injuries. The plaintiffs' expert, Mark Arndt, testified that at the time the 1993 Lincoln Town Car was manufactured, Ford should have located the fuel tank above or forward of the axle, or it should have equipped the vehicle with shields like the Upgrade Kit and the Trunk Pack and should have provided warnings similar to the Trunk Pack Considerations. Ford offered no evidence that these designs were not feasible at the time the Jablonski vehicle left its control. Further, the evidence revealed that, after the incorporation of these design changes, the Police Interceptor passed a 75-mile-per-hour crash test. Thus, it seems clear that this evidence was at least admissible to show that an alternative feasible design was available at the time the 1993 Lincoln Town Car left Ford's control and that it could have prevented the Jablonskis' injuries. On this basis alone, we believe that the trial court did not abuse its discretion in allowing the introduction of this evidence. In order to complete our analysis of the issue of Ford's continuing duty to warn, however, we will also consider the admissibility of the evidence in support of that theory.
*384 We first note that an analysis of the admissibility of the Police Interceptor evidence does not fit squarely within the rule barring the admission of subsequent remedial measures. That rule bars the admission of postaccident repairs or design changes that are often a direct result of the accident at issue. Here, the design changes represented by the Upgrade Kit and the Trunk Pack, and all the circumstances surrounding those changes, occurred before the Jablonski accident.
The rule barring the admission of subsequent remedial measures is deeply embedded in our jurisprudence. An examination of the historical basis of the rule is helpful to our analysis. Early cases applying the rule barring the admission of subsequent remedial measures simply held that the issue of negligence must be determined based upon what occurred "before and at the time of the accident." Grubb v. Illinois Terminal Co., 366 Ill. 330, 341, 8 N.E.2d 934, 939 (1937) (in an action involving a railroad crossing accident where the plaintiff sought to introduce evidence that the flasher signal was replaced after the accident, the court held that "the question of negligence is to be determined only from what occurred before and at the time of the accident, and evidence of repairs made after the accident is not admissible"); Howe v. Medaris, 183 Ill. 288, 295, 55 N.E. 724, 727 (1899) (in an action by an employee who was injured operating a machine at work who sought to introduce evidence that the machine was repaired after the accident to show an implied admission of negligence, the court held, "The rule in such cases is[,] that the question of negligence should be determined only by what occurred before and at the time of the accident, and evidence of repairs made after the accident is not admissible").
In Hodges v. Percival, 132 Ill. 53, 23 N.E. 423 (1890), the plaintiff was injured when an elevator fell in a building owned by the defendant. The defendant claimed error in the admission of testimony that an air-cushion was put in the elevator shaft after the accident. The court found that the admission of this evidence was error, although it did not require a reversal in that case. We quote the supreme court's opinion at length, because its analysis applies with equal force today:
"Evidence of precautions taken after an accident is apt to be interpreted by a jury as an admission of negligence. The question of negligence should be determined by what occurred before and at the time of the accident, and not by what is done after it. New measures or new devices adopted after an accident do not necessarily imply that all previous devices or measures were insufficient. A person operating a passenger elevator is bound to avail himself of all new inventions and improvements known to him, which will contribute materially to the safety of his passengers, whenever the utility of such improvements has been thoroughly tested and demonstrated, and their adoption is within his power, so as to be reasonably practicable. For this reason it was proper to show that a valuable device for securing safety was known to the defendant, and its use neglected by him, before the accident; but it would seem unjust that he could not take additional precautions after the accident without having his acts construed into an admission of prior negligence. Persons[] to whose negligence accidents may be attributed[] will hesitate about adopting such changes as will prevent the recurrence of similar accidents, if they are thereby to be charged with an admission of their responsibility for the past. The happening of an accident may inspire a party with greater diligence to prevent a repetition of a similar occurrence, but the exercise *385 of such increased diligence ought not necessarily to be regarded as tantamount to a confession of past neglect." Hodges, 132 Ill. at 56-57, 23 N.E. at 424.
Thus, the focus of concern is that a defendant not be punished for postaccident remedial measures. The same concern does not apply to measures of which the defendant was aware and could have implemented before the accident.
The precise issue before this court is not the admissibility of evidence of subsequent remedial measures; rather, the issue is the admissibility of evidence of preinjury, postsale design changes solely on the issue of a failure to warn of those changes. The only Illinois negligent-product-design case to directly address this issue is Carrizales. In that case, the plaintiff sought to introduce evidence, on the issue of negligence regarding warnings, that after the manufacture of the water heater, but before the plaintiff's injury, the defendant began putting warning labels on the heaters and developed an 18-inch stand as an option that would allow purchasers to raise the pilot light above floor level. Carrizales, 226 Ill.App.3d at 40, 168 Ill.Dec. 169, 589 N.E.2d at 583. The trial court granted the defendant's motion to exclude the evidence, and the First District Appellate Court affirmed. The court analyzed the issue by analogy to the rule barring evidence of subsequent remedial measures and held that the policy reasons for barring postaccident remedial measures also applied to preinjury measures to improve mass-produced items such as water heaters. In those cases, the court held, "[A]llowing evidence of pre[]injury remedial measures would have a chilling effect on the incentive to improve safety in such widely[]used products." Carrizales, 226 Ill.App.3d at 41, 168 Ill.Dec. 169, 589 N.E.2d at 584. The reasoning of Carrizales has since been followed in strict product liability cases in Smith v. Black & Decker (U.S.), Inc., 272 Ill.App.3d 451, 457, 209 Ill.Dec. 135, 650 N.E.2d 1108, 1113 (1995), and Brown v. Ford Motor Co., 306 Ill.App.3d 314, 318, 239 Ill.Dec. 637, 714 N.E.2d 556, 559 (1999). In each of those cases, the appellate court found that the trial court had not abused its discretion in barring the admission of evidence of preinjury, postsale remedial measures.
We do not believe that the trial court abused its discretion in admitting evidence of Ford's preinjury, postsale safety improvements to the Panther platform Police Interceptor on the issue of Ford's continuing duty to warn of a hazard that existed at the time of sale. Accordingly, we decline to follow Carrizales and its progeny on this issue, because we do not agree that the same policy considerations that bar the admission of postaccident remedial measures apply equally to preinjury, postsale safety measures.
First, Hodges demonstrates that the rule barring postaccident remedial measures was never intended to apply to preinjury remedial measures. As early as 1890, the supreme court allowed evidence of what occurred "before and at the time of the accident," including "that a valuable device for securing safety was known to the defendant, and its use neglected by him, before the accident." Hodges, 132 Ill. at 56, 23 N.E. at 424. The admission of such evidence was not believed to cause the same hesitation to adopt safety changes as the admission of evidence of postaccident measures.
Second, while a manufacturer may be hesitant to adopt postaccident remedial measures if those measures are admissible as evidence to prove negligence in the case involving that accident, other policy considerations prevail preinjury. For example, when a manufacturer develops postsale safety measures to remedy a defect which *386 existed at the time of sale, that manufacturer has a strong motivation to notify consumers of those measures in order to avoid future tort liability. Further, consumer demand for safe products provides an incentive for manufacturers to take steps to remedy defects.
Finally, if the policy goal is to promote the development of safer products, we believe that policy is better advanced by requiring manufacturers to inform consumers of safety measures which will remedy defects that already exist in products. In the context of product liability law, the policy behind the exclusion of postaccident remedial measures to prove negligence is to encourage manufacturers to develop safer products without a fear of liability for past acts. The policy goal in requiring manufacturers to notify consumers of postsale, preinjury remedial measures to correct existing hazards is to encourage manufacturers to develop safety features in order to avoid future liability. In our view, manufacturers are more likely to develop safer products if they are held accountable, on a continuing basis, for a failure to warn of hazards that they knew or should have known existed at the time the product was manufactured.
In this case, long before the design of the Panther platform vehicles, Ford's engineers had considered the potential for trunk contents to puncture the fuel tank in determining where the tank should be located. Despite notice of that hazard, and other hazards which could lead to the puncture of the fuel tank, Ford opted to design the Panther platform vehicles with a vertical-behind-the-axle fuel tank and to provide no warning of the hazard of trunk contents puncturing the tank in a high-speed rear-end collision. After the manufacture of the Jablonski vehicle, but before the accident, in response to consumer demand, Ford developed shields and warnings for the purpose of protecting occupants of the Panther platform vehicles from the very hazards that caused the injuries and death in this case. Prior to this accident, Ford chose to warn police agencies, dealers, and government fleet owners of the development of these safety features, but it provided no warnings to consumers. Under these circumstances, we believe that the perpetuation of a rule which shields the manufacturer from liability does little to promote safe products. Accordingly, we find that the trial court did not abuse its discretion in allowing the introduction of the Panther platform Police Interceptor evidence on the issue of Ford's failure to warn.
2.
Prior Similar Incidents
Ford next challenges the introduction into evidence of the plaintiffs' exhibit consisting of a list of 416 alleged similar incidents involving postcollision fires in Ford vehicles. The evidence reveals that this list was compiled from Ford's answer to an interrogatory in another case in 1992 in which Ford was required to list all such accidents within its knowledge. The plaintiffs' expert, Mark Arndt, modified the answer to the interrogatory, which was more extensive, by making a separate list that included only those accidents involving Ford vehicles with aft-of-the-axle fuel tanks. The list includes only accidents in which the occupants were injured or killed in accidents in which postcollision fires occurred in rear-end collisions. That reduced list is the exhibit to which Ford objects.
"It is well established in Illinois that evidence of prior accidents is competent to show that the common cause of the accidents is a dangerous or unsafe thing or condition." Bass v. Cincinnati, Inc., 180 Ill.App.3d 1076, 1079, 129 Ill.Dec. *387 781, 536 N.E.2d 831, 832 (1989). In addition, "[e]vidence of prior similar occurrences is admissible for the purpose of demonstrating that a manufacturer possessed knowledge of a defect in a particular product prior to the accident in the litigated case." Holmes v. Sahara Coal Co., 131 Ill.App.3d 666, 672, 86 Ill.Dec. 816, 475 N.E.2d 1383, 1387 (1985). "Evidence of prior accidents is admissible to demonstrate that a vehicle is dangerous if the proponent establishes that the accidents occurred in a substantially similar manner." Davis v. International Harvester Co., 167 Ill.App.3d 814, 825, 118 Ill.Dec. 589, 521 N.E.2d 1282, 1289 (1988). "It need not be shown that the accidents occurred in an identical manner. Substantial similarity is all that is required." Rucker v. Norfolk & Western Ry. Co., 77 Ill.2d 434, 441, 33 Ill.Dec. 145, 396 N.E.2d 534, 538 (1979). "The determination whether prior occurrences or accidents are substantially similar to the one at issue lies within the trial court's sound discretion." Bachman v. General Motors Corp., 332 Ill. App.3d 760, 786, 267 Ill.Dec. 125, 776 N.E.2d 262, 286 (2002).
The primary focus of the plaintiffs' claims in this case is that aft-of-the-axle fuel tanks are defective because they tend to rupture in rear-end collisions, causing postcollision fires, that Ford was aware of this defect, and that Ford was negligent in designing the Panther platform with an aft-of-the-axle fuel tank. Thus, evidence of prior similar accidents was relevant and admissible to prove that the design of the 1993 Lincoln Town Car was defective and unsafe and that Ford knew of its unsafe condition prior to the manufacture of the Jablonski vehicle. The list of 416 similar accidents only included rear-end collisions that caused postcollision fires in Ford vehicles with aft-of-the-axle fuel tanks as a result of the fuel tank being punctured in the accident. We find that the trial court did not abuse its discretion in determining that the accidents submitted were substantially similar to the accident in this case. Thus, the list of 416 similar incidents was properly admitted to prove both negligence and notice.
3.
2006 Federal Safety Standards
At the time the Jablonski vehicle was manufactured, FMVSS 301 required that a vehicle withstand, with minimal fuel leakage, a rear impact with a nondeformable 4,000-pound barrier moving at 30 miles per hour. Ford was allowed to introduce evidence that the 1993 Lincoln Town Car met this standard, that Ford performed the certification testing, that the Town Car passed at 35 miles per hour, and that Ford also conducted internal testing which required that the vehicle pass three separate car-to-car fuel-system-integrity crashes at 50 miles per hour. After the accident in this case, the NHTSA adopted a new standard for FMVSS 301 which required that vehicles withstand a rear impact at 50 miles per hour, rather than 30 miles per hour, with the new standard applicable to 2006 model vehicles. For purposes of this litigation, Ford conducted crash testing under the new standard and determined that the 1993 Lincoln Town Car met that standard. Ford sought to introduce into evidence the crash testing it had performed and testimony that the Jablonski vehicle met the new standard. The trial court, without objection, allowed the introduction of the crash test, but it refused, as irrelevant, testimony that the 1993 Lincoln Town Car complied with the new NHTSA safety standard. Ford argues that the trial court abused its discretion in refusing evidence that the 1993 Lincoln Town Car met the version of FMVSS 301 first applicable to 2006 vehicles.
*388 "[E]vidence of compliance with [f]ederal standards is relevant to the issue of whether a product is defective [citation], as well as the issue of whether a defective condition is unreasonably dangerous * * *." Rucker, 77 Ill.2d at 439, 33 Ill. Dec. 145, 396 N.E.2d at 536-37. Likewise, "[e]vidence of standards promulgated by industry, trade, or regulatory groups or agencies may be admissible to aid the trier of fact in determining the standard of care in a negligence action." Ruffiner v. Material Service Corp., 116 Ill.2d 53, 58, 106 Ill.Dec. 781, 506 N.E.2d 581, 584 (1987). However, that evidence is not conclusive. "The finder of fact may conclude that a product is in an unreasonably dangerous defective condition notwithstanding its conformity to [f]ederal standards." Rucker, 77 Ill.2d at 440, 33 Ill.Dec. 145, 396 N.E.2d at 537. "To be admissible, standards must be relevant `in terms of both time and conduct involved.'" Ruffiner, 116 Ill.2d at 58, 106 Ill.Dec. 781, 506 N.E.2d at 584 (quoting Murphy v. Messerschmidt, 68 Ill.2d 79, 84, 11 Ill.Dec. 553, 368 N.E.2d 1299, 1302 (1977)). Evidence of proposed safety standards that have not been adopted is irrelevant and inadmissible. Kelley v. American Motors Corp., 130 Ill. App.3d 662, 678, 85 Ill.Dec. 854, 474 N.E.2d 814, 825 (1985).
We fail to see the relevance of a version of FMVSS 301 that was not adopted until after this accident occurred and was first applicable to 2006 vehicles. A federal motor vehicle safety standard that is not applicable to the vehicle in question does not meet the "time" requirement in order to be relevant. Here, the jury received evidence that the 1993 Lincoln Town Car passed the applicable version of FMVSS 301, and as will be discussed later, the jury was properly instructed on the significance of that standard. Further, although the 2006 standard was not admitted into evidence, Ford was allowed to introduce evidence that the Jablonski vehicle exceeded the standard applicable to its model year and, in addition, passed 50 mile-per-hour fuel-system-integrity testing. Under these circumstances, we do not believe that the trial court abused its discretion in refusing the admission of evidence of the 2006 standards.
C.
Jury Instructions and Special Interrogatories
Ford argues that the trial court erred and abused its discretion in refusing various instructions and special interrogatories it submitted at the jury instructions conference. We will review Ford's arguments pertaining to instructions on punitive damages later in this opinion. Here, we will address the trial court's rejection of Ford's instructions on the significance of federal motor vehicle safety standards, a verdict form allocating fault between Ford and Natalie Ingram, and special interrogatories. We review the trial court's decisions on the submission of jury instructions on an abuse-of-discretion standard. Dillon, 199 Ill.2d at 505, 264 Ill.Dec. 653, 771 N.E.2d at 371.
1.
Instruction on Significance of Federal Motor Vehicle Safety Standards
Ford asserts that it was error for the trial court to refuse its nonpattern instruction which it characterizes as explaining the "significance" of federal motor vehicle safety standards. In that instruction, Ford sought to instruct the jury that NHTSA standards are prescribed to "meet the need for motor vehicle safety" and defined "motor vehicle safety" as the performance of a motor vehicle in a way that "protects the public against unreasonable risk of accidents * * * and against unreasonable *389 risk of death or injury in an accident." Although the trial court rejected this instruction, it gave another nonpattern instruction submitted by Ford which stated that FMVSS 301 was adopted to reduce "deaths and injuries occurring from fires that result from fuel spillage during and after motor vehicle crashes" and that "[i]f you find that the 1993 Lincoln Town [C]ar met or surpassed the requirements of this standard, that fact should be considered by you in deciding whether the vehicle was reasonably safe, but it is not conclusive."
As we previously noted, government standards are admissible evidence in a negligent-design case. Ruffiner, 116 Ill.2d at 58, 106 Ill.Dec. 781, 506 N.E.2d at 584. However, compliance with government standards alone is not conclusive regarding whether a product is defective. Rucker, 77 Ill.2d at 440, 33 Ill.Dec. 145, 396 N.E.2d at 537. Accordingly, we believe that the jury was properly instructed on the significance of evidence of compliance with the government standard. It is clear that the version of FMVSS 301 in effect when the Jablonski vehicle was manufactured is the government standard applicable to the circumstances of this case. Ford was allowed to introduce evidence that it met and surpassed that standard. The jury was instructed that compliance with the standard, although not conclusive, could be considered in determining whether the vehicle was reasonably safe. We believe that Ford's additional instruction would have been confusing to the jury in that it instructed that compliance with government standards eliminates any "unreasonable risk" of accidents or injuries. Thus, the jury would have been instructed, on the one hand, that compliance with government standards is not conclusive on whether a product is "reasonably safe," but it would also have been instructed that the compliance is tantamount to eliminating any "unreasonable risk." We find that the trial court did not abuse its discretion in rejecting this instruction.
2.
Verdict Forms Allocating Fault
At the jury instructions conference, Ford submitted proposed verdict forms that would have required the jury to allocate fault between Ford and Natalie Ingram. Under the terms of section 2-1117 of the Code of Civil Procedure, a joint tortfeasor who the jury determines is less than 25% at fault is only severally liable for the damages remaining after the payment of medical expenses. 735 ILCS 5/2-1117 (West 2004). Ford sought to have any negligence assessed against it compared to the fault of Ingram and to argue that its portion of the total fault was less than 25%. The trial court followed the controlling precedent in this district and rejected Ford's proposed verdict forms. When this case was briefed and argued, there was a conflict between this district and the Fourth District of the appellate court regarding whether a defendant who settles before trial should be included in the jury's apportionment of fault under section 2-1117. See Blake v. Hy Ho Restaurant, Inc., 273 Ill.App.3d 372, 210 Ill. Dec. 5, 652 N.E.2d 807 (1995) (the Fifth District held that a settling tortfeasor should not be included in the jury's apportionment of fault); Skaggs v. Senior Services of Central Illinois, Inc., 355 Ill. App.3d 1120, 291 Ill.Dec. 435, 823 N.E.2d 1021 (2005) (the Fourth District concluded that the jury should be informed about a settling tortfeasor under section 2-1117).
The foregoing conflict has now been resolved by the Illinois Supreme Court. In Ready v. United/Goedecke Services, Inc., 232 Ill.2d 369, 328 Ill.Dec. 836, 905 N.E.2d 725 (2008), the court held that settling tortfeasors should not be included *390 in the apportionment of fault pursuant to section 2-1117. Accordingly, the trial court did not abuse its discretion in refusing Ford's proposed verdict forms.
3.
Special Interrogatories
Ford argues that it is entitled to a new trial because the trial court improperly refused its four special interrogatories. The special interrogatories Ford tendered were as follows:
"Is the 1993 Lincoln Town Car reasonably safe for all reasonably intended uses?" Ford's proposed instruction No. 26.
"Did Ford Motor Company fail to use ordinary care for the safety of Dora Mae Jablonski?" Ford's proposed instruction No. 27.
"Did Ford Motor Company fail to use ordinary care for the safety of John L. Jablonski, Sr.?" Ford's proposed instruction No. 28.
"Did Ford Motor Company act in a way which shows utter indifference to or conscious disregard for the safety of Dora Mae Jablonski?" Ford's proposed instruction No. 29.
Special interrogatories are governed by section 2-1108 of the Code of Civil Procedure, which provides as follows:
"Unless the nature of the case requires otherwise, the jury shall render a general verdict. The jury may be required by the court, and must be required on request of any party, to find specially upon any material question or questions of fact submitted to the jury in writing. Special interrogatories shall be tendered, objected to, ruled upon[,] and submitted to the jury as in the case of instructions. Submitting or refusing to submit a question of fact to the jury may be reviewed on appeal, as a ruling on a question of law. When the special finding of fact is inconsistent with the general verdict, the former controls the latter and the court may enter judgment accordingly." 735 ILCS 5/2-1108 (West 2004).
Ford argues that the court should have given all four of its special interrogatories because they were all in proper form. The plaintiffs respond that the interrogatories were not in proper form, failed to include critical and necessary elements of the cause of action, would have confused or misled the jury, and could not have controlled the general verdict because the answers, whether yes or no, would not have been inconsistent with a general verdict.
The general rules concerning special interrogatories are well-established. Special interrogatories serve as the "`guardian of the integrity of a general verdict in a civil jury trial.'" Simmons v. Garces, 198 Ill.2d 541, 555, 261 Ill.Dec. 471, 763 N.E.2d 720, 730 (2002) (quoting O'Connell v. City of Chicago, 285 Ill.App.3d 459, 460, 220 Ill.Dec. 834, 674 N.E.2d 105, 106 (1996)). The purpose of a special interrogatory is that "[i]t tests the general verdict against the jury's determination as to one or more specific issues of ultimate fact." Simmons, 198 Ill.2d at 555, 261 Ill.Dec. 471, 763 N.E.2d at 730. "In determining whether answers to special interrogatories are inconsistent with a general verdict, all reasonable presumptions are exercised in favor of the general verdict." Simmons, 198 Ill.2d at 556, 261 Ill.Dec. 471, 763 N.E.2d at 730.
"A special interrogatory is in proper form if (1) it relates to an ultimate issue of fact upon which the rights of the parties depend[] and (2) an answer responsive thereto is inconsistent with some general verdict that might be returned. [Citations.] Special findings are inconsistent with a general verdict *391 only where they are `clearly and absolutely irreconcilable with the general verdict.' [Citation.] If a special interrogatory does not cover all the issues submitted to the jury and a `reasonable hypothesis' exists that allows the special finding to be construed consistently with the general verdict, they are not `absolutely irreconcilable' and the special finding will not control. [Citation.]" Simmons, 198 Ill.2d at 555-56, 261 Ill. Dec. 471, 763 N.E.2d at 730.
If a special interrogatory is in proper form, it must be given, but the failure to do so may be harmless error. McGovern v. Kaneshiro, 337 Ill.App.3d 24, 30, 271 Ill.Dec. 457, 785 N.E.2d 108, 114 (2003). Our review of a trial court's refusal to give a special interrogatory is de novo. Hooper v. County of Cook, 366 Ill.App.3d 1, 6, 303 Ill.Dec. 476, 851 N.E.2d 663, 668 (2006).
The statutory provisions requiring that a special interrogatory be given if in proper form and that a special finding controls an inconsistent general verdict are merely codifications of the common law. Albaugh v. Cooley, 87 Ill.2d 241, 252, 57 Ill.Dec. 720, 429 N.E.2d 837, 842 (1981). The reason behind the rule is the belief "that a jury more clearly understands a particularized special interrogatory than a composite of all of the questions in a case, and therefore a special finding upon which a jury presumably has more intensively focused its attention should prevail over an inconsistent general verdict." Borries v. Z. Frank, Inc., 37 Ill.2d 263, 266, 226 N.E.2d 16, 19 (1967). However, as one court noted:
"The argument could be made that special interrogatories frequently do not achieve their purpose and often disrupt a trial with a result not understood by the jury and not expected by the court or the parties. The possibility of an unintended, unreasoned result is made more likely by the fact that the court and counsel are severely restricted in their discussion of a special interrogatory. * * * In a jurisdiction where no comment is allowed on the special interrogatory it is very important that the special interrogatory be carefully worded." Blakey v. Gilbane Building Corp., 303 Ill.App.3d 872, 880-81, 237 Ill.Dec. 147, 708 N.E.2d 1187, 1193-94 (1999).
Particular attention must be given to the wording of a special interrogatory seeking to test a general verdict on the issue of negligence when the plaintiff has alleged multiple theories of negligence. Northern Trust Co. v. University of Chicago Hospitals & Clinics, 355 Ill.App.3d 230, 252, 290 Ill.Dec. 445, 821 N.E.2d 757, 777 (2004). In those cases, in order to be in proper form, the interrogatory must consist of a single question that, standing alone, would control the verdict on all the theories of negligence. Northern Trust Co., 355 Ill.App.3d at 252, 290 Ill.Dec. 445, 821 N.E.2d at 776-77. If a special interrogatory covers only one of the plaintiff's two theories of negligence, it is not in proper form since an answer contrary to a general verdict would not be inconsistent with the remaining theory of negligence. Stach v. Sears, Roebuck & Co., 102 Ill. App.3d 397, 411, 57 Ill.Dec. 879, 429 N.E.2d 1242, 1252 (1981). Accordingly, if a reasonable hypothesis exists that a special interrogatory seeking to test a general verdict on the issue of negligence could be understood by the jury to include less than all the theories of negligence asserted by the plaintiff, the interrogatory is not in proper form and should not be given.
In this case, each of the special interrogatories submitted by Ford appears to be designed to test the jury's verdict on either the issue of negligence or the issue of willful and wanton conduct. The plaintiffs submitted multiple claims of negligence *392 to be determined by the jury. Those claims included allegations of both a negligent design and a failure to warn. The same allegations of negligence were submitted as claims of willful and wanton conduct for Dora's claim for punitive damages. The jury was instructed in the burden-of-proof instructions that it should find for the plaintiffs if it determined that Ford was negligent or guilty of willful and wanton conduct "in one of the ways" claimed by the plaintiffs. This was a complicated product liability case in which the jury heard extensive testimony from expert witnesses offering divergent opinions on the design of the fuel tank in the Jablonskis' 1993 Lincoln Town Car and the potential danger of items in the trunk puncturing the fuel tank in a high-speed rear-end collision. Thus, the special interrogatories submitted required careful scrutiny to be certain that the jury could not interpret an interrogatory to include less than all the plaintiffs' claims so that an answer would be "absolutely irreconcilable" with a contrary general verdict. Having carefully considered the special interrogatories submitted by Ford in the context of the evidence and instructions in this case, we believe that the trial court correctly refused to submit them to the jury.
In its proposed instruction No. 26, Ford sought to ask the jury as follows: "Is the 1993 Lincoln Town Car reasonably safe for all reasonably intended uses?" This interrogatory could reasonably be understood to only address the negligent-design claims and not the allegations of a failure to warn. The court gave the jury multiple instructions on the issue of duty. At the request of the plaintiffs, the court gave plaintiffs instruction No. 25, which stated that a manufacturer is "under a duty to make a product which is reasonably safe for all reasonably intended uses." (Emphasis added.) The special interrogatory generally tracked the language of that instruction. However, at the request of Ford, the court gave two additional instructions on the issue of duty. Defendant's instruction No. 1 informed the jury as follows: "[I]t was the duty of the defendant to use ordinary care for the safety of plaintiffs with respect to the design of the 1993 Lincoln Town Car." Defendant's instruction No. 2 advised as follows: "To establish a negligence claim for a failure to warn, the plaintiff must prove that the defendant knew or should have known, in the exercise of ordinary care, that the product was unreasonably dangerous and defendant failed to warn of its dangerous propensity." The jury could have easily interpreted these various instructions so that the special interrogatory would be understood to only pertain to Ford's duty to "make a product" to the exclusion of any duty to warn. Thus, under the instructions given by the court, if the jury determined that Ford was negligent in failing to warn, but not in the design of the fuel tank, a reasonable hypothesis exists that the jury could have answered the interrogatory "yes" and still entered a general verdict for the plaintiffs. In those circumstances, the answer to the special interrogatory would not be "absolutely irreconcilable" with the general verdict. For these reasons, we believe that the foregoing special interrogatory submitted by Ford as defendant's instruction No. 26 was confusing and ambiguous, and the trial court was correct in refusing it.
We next examine the special interrogatories submitted as defendant's instruction Nos. 27 and 28, which are identical except for the name of the plaintiff. Each interrogatory asks, "Did Ford Motor Company fail to use ordinary care for the safety of [Dora Mae Jablonski or John L. Jablonski, Sr.]?" These interrogatories are too vague and ambiguous in that they do not explicitly cover all the plaintiffs' allegations of *393 negligence. For example, the question that needed to be asked was, "Did Ford Motor Company fail to use ordinary care for the safety of [Dora Mae Jablonski or John L. Jablonski, Sr.] in any of the ways claimed by [the plaintiffs]?" If the jury answered this more specific question "no" and rendered a general verdict for the plaintiffs, the answer would be absolutely irreconcilable with the verdict. However, the jury could just as easily have interpreted the general interrogatories submitted by Ford to ask, "Did Ford Motor Company fail to use ordinary care for the safety of [Dora Mae Jablonski or John L. Jablonski, Sr.] in all of the ways claimed by [the plaintiffs]?" In that case, the jury could have answered the question "no" even though it found that Ford was negligent in one or more of the ways claimed by the plaintiffs and entered a general verdict for the plaintiffs. The interrogatories, as submitted by Ford, are simply not sufficiently specific in this case to cover all the allegations of negligence. Consequently, a reasonable hypothesis exists that an answer to the interrogatories would not be inconsistent with a general verdict. Accordingly, the trial court was correct in refusing Ford's special interrogatories submitted as defendant's instruction Nos. 27 and 28.
Finally, we turn to Ford's fourth special interrogatory, submitted as defendant's instruction No. 29, which asked as follows: "Did Ford Motor Company act in a way which shows utter indifference to or conscious disregard for the safety of Dora Mae Jablonski?" This interrogatory suffers from the same defect discussed in the preceding paragraph. It is simply not sufficiently specific to cover all the allegations of willful and wanton conduct and is therefore subject to an interpretation by the jury that would not result in an answer which is absolutely irreconcilable with a general verdict. The trial court was correct in refusing the special interrogatory submitted by Ford as defendant's Instruction No. 29.
We reiterate that our determination of whether the special interrogatories submitted in this case were in proper form is based upon the context of the parties' claims and the instructions given by the court. Special interrogatories are to be read in the context of the court's other instructions, which set forth the claims of the parties, to determine how the interrogatories might be interpreted by the jury and whether the jury might be confused. Simmons, 198 Ill.2d at 564, 261 Ill.Dec. 471, 763 N.E.2d at 735. In a complex case involving multiple allegations of negligence and willful and wanton conduct, it is imperative that special interrogatories designed to test the jury's verdict upon those issues be carefully worded so that there is no question that an inconsistent answer is absolutely irreconcilable with a general verdict. To do otherwise is to risk "[t]he possibility of an unintended, unreasoned result." Blakey, 303 Ill.App.3d at 881, 237 Ill.Dec. 147, 708 N.E.2d at 1193. We find that the trial court did not err in refusing the special interrogatories submitted by Ford.
D.
Punitive Damages
We finally consider the issues raised by Ford in regard to the jury's award of $15 million in punitive damages to plaintiff Dora Jablonski. Ford first argues that the trial court erred in submitting the punitive-damages claim to the jury because insufficient evidence was introduced to support an award of punitive damages and that it is therefore entitled to the entry of a judgment notwithstanding the verdict on that issue. Ford also claims that the submission of the plaintiffs' willful-and-wanton-conduct *394 claim on an allegation of a postsale duty to warn was error entitling it to a new trial. In the alternative, Ford asserts that the trial court erred in refusing certain nonpattern jury instructions it tendered on the issue of punitive damages, entitling Ford to a new trial. Ford makes no claim that the amount of punitive damages awarded was excessive.
Dora responds that there was ample evidence to justify the trial court's submission of the punitive-damages claim to the jury. Further, Dora argues that it was proper for the trial court to submit the postsale-duty-to-warn allegation but that, in any event, Ford cannot prove prejudice in the submission of that allegation since it did not submit special interrogatories to determine upon which allegations of willful and wanton conduct the jury found Ford liable and Ford is therefore bound by the general verdict on punitive damages. As to the nonpattern jury instructions submitted by Ford, Dora argues that the jury was properly instructed with pattern instructions on willful and wanton conduct and punitive damages and that Ford's proposed instructions were properly rejected. We examine each of Ford's claims in detail below.
1.
The Trial Court's Submission of the Punitive Damages Claim
In Illinois, a plaintiff is not allowed to seek punitive damages without first obtaining leave of court. The Code of Civil Procedure provides, in pertinent part, as follows:
"In all actions on account of bodily injury or physical damage to property, based on negligence, or product liability based on any theory or doctrine, where punitive damages are permitted no complaint shall be filed containing a prayer for relief seeking punitive damages. However, a plaintiff may, pursuant to a pretrial motion and after a hearing before the court, amend the complaint to include a prayer for relief seeking punitive damages. The court shall allow the motion to amend the complaint if the plaintiff establishes at such hearing a reasonable likelihood of proving facts at trial sufficient to support an award of punitive damages." 735 ILCS 5/2-604.1 (West 2004).
In this case, Dora filed a pretrial motion, pursuant to the above statute, requesting that she be allowed to pursue a claim for punitive damages based upon willful and wanton conduct. The motion was supported by the affidavit of an expert which generally set forth the same evidence that the plaintiffs ultimately produced at the trial. Ford countered the motion with a written objection and the affidavit of its expert, Jack Ridenour, which generally set forth the evidence Ford offered at the trial in defense of the plaintiffs' claims. The court conducted a hearing upon the motion, at which oral arguments were heard, and then granted the motion, allowing Dora to amend her pleadings to claim willful and wanton conduct and to seek punitive damages. Ford does not claim error in this ruling, or even discuss it in its brief. Rather, Ford argues that the trial court erred in "submitting" the punitive-damages claim to the jury and in failing to grant Ford a judgment notwithstanding the verdict on that claim.
"It has long been established in this [s]tate that punitive or exemplary damages may be awarded when torts are committed with fraud, actual malice, deliberate violence[,] or oppression[] or when the defendant acts willfully[] or with such gross negligence as to indicate a wanton disregard of the rights of others." Kelsay v. Motorola, Inc., 74 Ill.2d 172, 186, 23 Ill.Dec. 559, 384 N.E.2d 353, 359 (1978). *395 Thus, it has long been recognized in Illinois product liability cases that "where there is evidence of wilful and wanton conduct, punitive damages may be allowed." Moore, 116 Ill.App.2d 109, 135, 253 N.E.2d 636, 648 (1969), aff'd on other grounds, 46 Ill.2d 288, 263 N.E.2d 103 (1970). Punitive damages are not favored in the law, and are not awarded as compensation, but may be awarded in a proper case "to punish the offender and to deter that party and others from committing similar acts of wrongdoing in the future." Loitz v. Remington Arms Co., 138 Ill.2d 404, 414, 150 Ill.Dec. 510, 563 N.E.2d 397, 401 (1990). "In a products liability case, the goal of awarding punitive damages is to deter manufacturers from placing dangerously defective products into the stream of commerce by making it unprofitable to an unpredictable degree." Baier v. Bostitch, 243 Ill.App.3d 195, 205, 183 Ill.Dec. 455, 611 N.E.2d 1103, 1110 (1993). In the context of a punitive-damages claim, willful and wanton conduct "`"approaches the degree of moral blame attached to intentional harm, since the defendant deliberately inflicts a highly unreasonable risk of harm upon others in conscious disregard of it."'" Loitz, 138 Ill.2d at 416, 150 Ill.Dec. 510, 563 N.E.2d at 402 (quoting Bresland v. Ideal Roller & Graphics Co., 150 Ill.App.3d 445, 457, 103 Ill.Dec. 513, 501 N.E.2d 830, 839 (1986) (quoting Restatement (Second) of Torts § 886A, Comment k (1979))). "The essential elements of wilful and wanton conduct in a product liability case include knowledge of the defect, knowledge or notice that the defect was likely to cause injury[,] and failure to warn of or remedy a known defect or take some other affirmative action to avoid the injury." Collins v. Interroyal Corp., 126 Ill.App.3d 244, 256, 81 Ill.Dec. 389, 466 N.E.2d 1191, 1199 (1984).
"Appropriately enough, the initial decision whether punitive damages may be imposed in a particular case in this [s]tate is a matter normally reserved to the trial judge." Loitz, 138 Ill.2d at 414, 150 Ill.Dec. 510, 563 N.E.2d at 401. The determination of whether punitive damages are available as a matter of law for the cause of action is reviewed de novo. Franz v. Calaco Development Corp., 352 Ill.App.3d 1129, 1138, 288 Ill.Dec. 669, 818 N.E.2d 357, 367 (2004).
"The trial court submits the issue of punitive damages to the jury when it determines that, as a matter of law, the evidence will support an award of punitive damages. [Citation.] In other words, the trial court may submit the issue of punitive damages to the jury only if the plaintiff has made out a prima facie case for such damages. [Citation.] This decision to submit the question to the jury is a matter reserved to the trial court and will not be reversed absent abuse of discretion." Franz, 352 Ill.App.3d at 1138, 288 Ill.Dec. 669, 818 N.E.2d at 367.
When faced with conflicting evidence, "the question of whether a defendant's conduct was sufficiently willful or wanton to justify the imposition of punitive damages is for the jury to decide." Cirrincione v. Johnson, 184 Ill.2d 109, 116, 234 Ill.Dec. 455, 703 N.E.2d 67, 70 (1998). Thus, the factual finding by the jury on the issue of whether the defendant has committed willful and wanton conduct that would support a claim for punitive damages is reviewed under a manifest-weight standard. Franz, 352 Ill.App.3d at 1138, 288 Ill.Dec. 669, 818 N.E.2d at 367.
Here, we find no error in the trial court's initial decision to allow Dora to proceed with a willful-and-wanton-conduct claim for punitive damages or its decision to submit the punitive-damages claim to the jury. We see no need to restate all the evidence in support of the punitive-damages *396 claim, but we will summarize. The plaintiffs presented significant evidence in support of their claim that Ford's Panther platform vehicles are defective in that the aft-of-the-axle location of the unshielded fuel tank renders them susceptible to postcrash fires in high-speed rear-end collisions because the fuel tank is crushed or breached, causing gasoline to spill and ignite. Evidence of this claim was presented by expert testimony and by the presentation of numerous substantially similar accidents that resulted in severe injuries and deaths. The plaintiffs offered evidence of Ford's knowledge of the alleged defective condition of the Panther platform vehicles through proof that Ford was aware of the many prior similar occurrences and evidence that, long before the Panther platform was manufactured, a researcher funded by Ford, as well as Ford's own engineers, had recommended that a safer design was to place the fuel tank above the axle. Well before the Jablonski accident, Ford adopted a policy of placing the fuel tank forward of the axle in all new passenger automobile designs. Finally, the evidence offered by the plaintiffs revealed that, prior to the Jablonski accident, Ford did nothing to warn civilian users of Panther platform vehicles of the potential danger, did nothing to remedy the defect, and took no other action to avoid injuries caused by the defect. In fact, the evidence reveals that it was not until mounting complaints led to a NHTSA investigation, and the state police agencies of at least two states demanded action, that Ford addressed the problem. Once Ford acknowledged the need for corrective action, in less than a year it developed relatively simple design modifications that resulted in the modified Panther platform vehicle passing a 75-mile-per-hour rear-end crash test, but it took no action to warn or otherwise remedy the danger for civilian users such as the Jablonskis.
Despite the foregoing evidence, Ford argues that under the analysis in Loitz, the plaintiff in this case failed to present sufficient evidence of willful and wanton conduct to justify an award of punitive damages. Loitz, 138 Ill.2d 404, 150 Ill.Dec. 510, 563 N.E.2d 397. In Loitz, the plaintiff, who was injured when the barrel of the shotgun he was using exploded, based his claim that the defendant manufacturer had notice of a defect upon a relatively small number of prior similar claims. The supreme court held, "Guns are inherently dangerous instrumentalities, and the mere occurrence of other explosions does not, without more, establish outrageous misconduct or some other basis sufficient to warrant the imposition of punitive damages." Loitz, 138 Ill.2d at 419, 150 Ill.Dec. 510, 563 N.E.2d at 404. The evidence in this case is easily distinguishable from Loitz.
Here, although the evidence of Panther platform vehicles involved in prior similar occurrences represented a small percentage of the total Panther platform vehicles manufactured, additional evidence presented by the plaintiffs revealed that Panther platform vehicles had a higher rate of postcollision fires when subjected to high-speed rear-end collisions than vehicles designed with a forward-of-the-axle fuel tank. This evidence was compiled by a Ford employee prior to the accident in this case. In addition, unlike Loitz, Ford's own engineers had advised it not to use aft-of-the-axle fuel tanks in its vehicles long before the Panther platform was manufactured, due to safety concerns related to postcrash fires, including a concern that articles in the trunk could breach the fuel tank.
We believe that this evidence clearly supports the trial court's decision to submit Dora's punitive-damages claim to the jury. Dora presented a prima facie case and the trial court did not abuse its discretion *397 in submitting the claim. Likewise, we do not believe that the decision of the jury to award punitive damages is against the manifest weight of the evidence. Certainly, Ford presented conflicting evidence to explain its actions and offered the testimony of experts that Panther platform vehicles are not defective. In the end, however, the jury resolved the conflicting evidence in favor of the plaintiff and awarded punitive damages. We see no reason to grant Ford a judgment notwithstanding the verdict. Viewing all the evidence in the light most favorable to the plaintiff, we conclude that the decision of the jury to award punitive damages was well-justified.
2.
Willful and Wanton Postsale-Failure-to-Warn Claim
Next, Ford claims that it was error for the trial court to submit Dora's postsale-failure-to-warn allegation on the willful-and-wanton-conduct claim and that it is therefore entitled to a new trial on the issue of punitive damages. In addition to claiming that Ford was negligent by "[f]ailing to inform of the existence of the Trunk Pack and/or Trunk Pack Recommendations," Dora also alleged that the failure amounted to willful and wanton conduct. Ford makes the same objection to the submission of this willful-and-wanton-conduct claim to the jury as it did to the negligence claim. Both parties' arguments are essentially the same.
We have already extensively analyzed this issue in this opinion and we see no need for further discussion. As with the negligence claims, the willful-and-wanton-conduct claim was submitted on four separate theories, and a general verdict was entered on that claim. We have held that the trial court did not err in submitting the willful-and-wanton-conduct claim on at least some of the plaintiffs' theories. Since Ford did not submit special interrogatories to determine upon which theories the jury decided that Ford had engaged in willful and wanton conduct, it is unable to show prejudice from the submission of the alleged postsale-duty-to-warn theory, even if the submission of that theory was error. See Witherell, 118 Ill.2d at 329, 113 Ill. Dec. 259, 515 N.E.2d at 72 ("When there is a general verdict and more than one theory is presented, the verdict will be upheld if there was sufficient evidence to sustain either theory, and the defendant, having failed to request special interrogatories, cannot complain"). We hold that Ford is not entitled to a new trial on punitive damages as a result of the submission of the postsale-duty-to-warn claim.
3.
Ford's Nonpattern Instruction No. 20
Ford argues that the trial court erred and violated due process by refusing its proposed instruction No. 20 on the issue of punitive damages. That instruction stated as follows:
"You may award punitive damages only if you find by clear and convincing evidence that Ford Motor Company employees had no arguably legitimate reasons for concluding that the 1993 Lincoln Town Car was reasonably safe. You may not award punitive damages if reasonable people can disagree about whether the 1993 Lincoln Town Car was reasonably safe."
In the trial court, Ford claimed that this instruction was modified from Illinois Pattern Jury Instructions, Civil, No. 35.02 (2005) (IPI Civil 2005). We fail to see any similarity between the proposed instruction and IPI Civil 35.02, which instructs juries that they cannot assess punitive damages against a corporate defendant based upon the actions of its employees unless one or more of certain conditions *398 apply. Therefore, we find that it is a nonpattern instruction and apply the rules accordingly.
The law is clear that if a pattern instruction is available in a civil case, it is to be used, "giving due consideration to the facts and the prevailing law," unless the court determines that it does not accurately state the law. 177 Ill.2d R. 239(a). Regardless of which instructions were given and which were refused, our task is essentially to discern whether the jury was given an accurate statement of the law from which to decide the issues.
In the present case, the court gave the jury five pattern instructions submitted by Dora on her claim for punitive damages. The jury was instructed (1) with IPI Civil (2005) 20.01.01, an issues instruction that defined the issues in the claim of willful and wanton conduct, (2) with IPI Civil (2005) 21.02.02, a burden-of-proof instruction that detailed what Dora was required to prove on the willful-and-wanton-conduct claim, (3) with IPI Civil (2005) 14.04, a duty instruction that stated that it was Ford's duty "before and at the time of the occurrence, to refrain from willful and wanton conduct which would endanger the safety of Dora Jablonski," (4) with IPI Civil (2005) 14.01, a definition instruction that defined "willful and wanton conduct" as "a course of action which shows an utter indifference to or conscious disregard for the safety of others," and (5) with IPI Civil (2005) 35.01, which advised the jury that if it found that Ford's conduct "was willful and wanton and proximately caused" Dora's injury and that if the jury believed "that justice and the public good require it," punitive damages "may" be awarded "to punish the Defendant Ford Motor Company and to deter Ford Motor Company and others from similar conduct." In addition to the foregoing, the trial court gave two nonpattern instructions on punitive damages submitted by Ford: (1) an instruction advising the jury that the plaintiffs' burden of proof on punitive damages was "by clear and convincing evidence" and (2) an instruction advising the jury that in determining the proper amount of punitive damages, it could not consider Ford's "wealth or size."
We find that the trial court did not abuse its discretion in refusing to give the jury Ford's proposed instruction No. 20. It is a nonpattern instruction that does not accurately state the law, and the jury was otherwise accurately instructed about punitive damages. By submitting a nonpattern instruction that would have prohibited the jury from awarding punitive damages if reasonable people could disagree about whether the 1993 Lincoln Town Car was reasonably safe, Ford was attempting to create a new standard for punitive damages that has never existed in Illinois law, a standard that would not allow punitive damages if a defendant manufacturer could find an expert to claim that the product in question was reasonably safe. That is, quite simply, not the law. In a previous section, we have reviewed the law pertaining to the circumstances under which punitive damages may be awarded in a products liability case, and we believe that the instructions given by the trial court accurately instructed the jury.
Ford submitted a jury instruction which essentially advised the jury that it could not find for the plaintiffs if the parties presented conflicting testimony from expert witnesses. In this case, the jury was presented with conflicting evidence on the claim of willful and wanton conduct. The jury was free to accept the evidence presented by Dora and reject the evidence presented by Ford. We hold that Ford's proposed instruction No. 20 did not advise the jury of the proper standard for awarding *399 punitive damages, and the trial court did not abuse its discretion in refusing it.
Based upon our ruling that Ford's proposed instruction No. 20 did not accurately state the law and was, therefore, properly refused, we also reject Ford's related argument that it was denied due process by the exclusion of this instruction. It is elementary that a party has no due process right to instructions that do not accurately state the law. 177 Ill.2d R. 239(a). Ford argues that the trial court's refusal to give this proposed instruction "was not simply an error under Illinois law[;] it also rendered the I.P.I. Civil standard for awarding punitive damages unconstitutionally vague as applied to this case." (Emphasis in original.) We disagree. Ford and other manufacturers should have known the standard for the imposition of punitive damages for several decades. See Moore, 116 Ill.App.2d at 135-36, 253 N.E.2d at 648-49 ("It is well established in Illinois that where there is evidence of wilful and wanton conduct, punitive damages may be allowed. * * * The question of wilful and wanton conduct is essentially whether the failure to exercise care is so gross that it shows a lack of regard for the safety of others") aff'd on other grounds, 46 Ill.2d 288, 263 N.E.2d 103 (1970); Collins, 126 Ill.App.3d at 256, 81 Ill.Dec. 389, 466 N.E.2d at 1199 ("Punitive damages based on wilful and wanton conduct are allowed in product liability actions where there is evidence of conscious disregard for the safety of others"). Ford was not denied due process by the trial court's rejection of its proposed instruction No. 20.
4.
Ford's Nonpattern Instruction Nos. 15 and 19
Ford's final argument is that it was denied due process by the trial court's rejection of two nonpattern instructions Ford claims were required by decisions of the United States Supreme Court. Ford's proposed instructions provided as follows:
"You may not award any punitive damages for the purpose of punishing Ford Motor Company for the sale of vehicles in other states, for any injuries that may have occurred in other states, or for the purpose of changing Ford Motor Company's conduct outside the State of Illinois." Ford's proposed instruction No. 15.
"Any individuals other than the plaintiff who might claim to have been harmed by the defendant have the right to bring their own lawsuit seeking compensatory and punitive damages for the wrong, if any done to them. Therefore, if you decide to impose punitive damages, you may not impose punitive damages for the purpose of punishing the defendant for any wrong except the wrong done to the plaintiffs in this case." Ford's proposed instruction No. 19.
In a series of recent decisions, the United States Supreme Court has provided guidelines to aid state courts in preventing the imposition of excessive punitive-damage awards. Pacific Mutual Life Insurance Co. v. Haslip, 499 U.S. 1, 111 S.Ct. 1032, 113 L.Ed.2d 1 (1991) (while an excessive punitive-damages award may violate the due process clause, the common law method of assessing punitive damages is not per se unconstitutional); TXO Production Corp. v. Alliance Resources Corp., 509 U.S. 443, 113 S.Ct. 2711, 125 L.Ed.2d 366 (1993) (although no mathematical bright-line test can be formulated to determine whether a punitive-damages award is constitutionally excessive, a general concern of "reasonableness," under the circumstances of a particular case, must be considered); BMW of North America, Inc. v. Gore, 517 U.S. 559, 116 S.Ct. 1589, 134 L.Ed.2d 809 (1996) (while evidence of out-of-state *400 transactions is relevant to the degree of reprehensibility of the defendant's conduct, a state court may not sanction procedures that punish a defendant in order to deter conduct which is lawful in other states); State Farm Mutual Automobile Insurance Co. v. Campbell, 538 U.S. 408, 123 S.Ct. 1513, 155 L.Ed.2d 585 (2003) (due process does not allow a state to punish a defendant for out-of-state conduct that is lawful where it occurred or to adjudicate other parties' hypothetical claims under the guise of a reprehensibility analysis); Philip Morris USA v. Williams, 549 U.S. 346, 127 S.Ct. 1057,166 L.Ed.2d 940 (2007) (while a jury may be allowed to consider harm to nonparties in determining the degree of the reprehensibility of the defendant's conduct, the jury must be instructed, upon request, not to punish the defendant for harm to nonparties).
We see no need for an extensive analysis of the foregoing cases since this case is clearly distinguishable. In each of the above cases, the defendant appealed the punitive-damages award, arguing that it was excessive. The only issue in those cases concerned the amount of the punitive damages awarded. The Supreme Court rulings cited by Ford did not implicate in any way a defendant's liability for a punitive-damages award. The Supreme Court promulgated guidelines for trial courts to follow to decrease the likelihood of an excessive award, and for reviewing courts to follow, once a decision had been made that the defendant was liable for punitive damages, to determine whether the amount awarded was unconstitutionally excessive.
Here, Ford makes no claim that the amount of the punitive damages awarded is excessive. Instead, Ford argues only that the foregoing decisions are equally applicable to whether Ford is liable for punitive damages, and Ford requests a new trial on its liability for punitive damages. In fact, Ford seeks to bootstrap its argument into a claim that it is entitled to a new trial on all the issues. We disagree with Ford's argument. We believe that the authorities upon which Ford relies are limited to claims of excessive punitive damages, and we hold that, in the absence of such a claim, Ford has waived any error in the trial court's failure to submit Ford's proposed jury instructions.
We find no authority for Ford's argument that the failure to give its proposed instructions requires a new trial on its liability for punitive damages, much less a new trial on all the issues. In fact, in each of the cases Ford cites as examples of decisions reversing a punitive-damages award for a failure to give similar instructions, the defendant argued that the award was excessive, and the court's remand of the case was limited to a new determination of the amount of the award. See White v. Ford Motor Co., 500 F.3d 963 (9th Cir.2007) (the district court erred in failing to instruct the jury that it could not punish Ford for harm to nonparties, and the cause was remanded for a new trial on the amount of punitive damages); Sand Hill Energy, Inc. v. Smith, 142 S.W.3d 153 (Ky.2004) (the failure to instruct the jury that it could not punish defendant Ford for out-of-state conduct was error, and the cause was remanded for a new trial limited to the amount of the punitive-damages award); Estate of Schwarz v. Philip Morris Inc., 206 Or.App. 20, 135 P.3d 409 (2006) (the failure to instruct the jury that it could not punish the defendant for the impact of its conduct on individuals in other states was error, and the cause was remanded for a new trial limited to a determination of the amount of punitive damages), appeal allowed, 346 Or. 213, 208 P.3d 963 (2009).
*401 Indeed, there are good reasons that Ford has not claimed that the punitive-damages award in this case is excessive or asked this court to remand for a new trial on the amount of the award. In all of the cases discussed above, the jury awarded punitive damages that were multiples of the compensatory damages awarded. In one case affirmed by the Supreme Court, the punitive-damages award was 526 times the compensatory-damages award (TXO Production Corp., 509 U.S. at 453, 113 S.Ct. at 2718, 125 L.Ed.2d at 376), although the Court has since expressed the view that a punitive-damages award more than a single-digit multiple of compensatory damages may be suspect in a due process analysis (State Farm Mutual Automobile Insurance Co., 538 U.S. at 425, 123 S.Ct. at 1524, 155 L.Ed.2d at 605-06). Here, the punitive-damages award was less than the compensatory-damages award.
Thus, Ford finds itself in a difficult situation in its challenge to the punitive-damages award. If it argues that the award is excessive and the award is reversed as a result of the trial court's failure to give its proposed instructions, any new trial would be limited to the amount of the punitive-damages award. However, Ford clearly does not want a new trial limited to the amount of punitive damages because a new award may be higher. As a result, Ford limits its argument on appeal to an attempt to extend the holdings of the Supreme Court to allow a new trial on its liability for punitive damages or, in the alternative, on all the issues. We have already held that the trial court did not err in submitting the issue of punitive damages to the jury and that the jury's decision to render a punitive-damages award is not against the manifest weight of the evidence. We decline to extend the Supreme Court's due process analysis of excessive punitive-damage awards to the issue of liability for punitive damages. By making no claim that the punitive-damages award is excessive or requesting a new trial on the amount of punitive damages, Ford has waived any error in the trial court's failure to give its proposed instructions.
CONCLUSION
We have carefully reviewed the extensive record in this case and considered the myriad issues raised by Ford. We firmly believe that the parties received a fair trial in this case. The jury heard extensive evidence from both sides, and the contested issues were fully and fairly presented. As one court succinctly noted in a similar case: "Both sides presented lengthy and conflicting testimony from a long list of experts. The jury made its decision." Carillo v. Ford Motor Co., 325 Ill.App.3d 955, 966, 259 Ill.Dec. 619, 759 N.E.2d 99, 107 (2001).
We find no reversible error and therefore affirm the judgment in its entirety.
Affirmed.
DONOVAN and SPOMER, JJ., concur.
NOTES
[1] The material developed by Ford refers to "Trunk Packing Considerations." However, the jury instructions used the phrase "Trunk Pack Recommendations." The two phrases were used interchangeably during the trial. We will use both phrases in this opinion and, to the extent possible, as they appear in the record.
[2] Although Ford appeals the trial court's refusal to submit certain special interrogatories that were tendered, and those arguments will be determined later in this opinion, those special interrogatories were not designed to determine upon which claims the jury based its verdict.
[3] See, e.g., Comstock v. General Motors Corp., 358 Mich. 163, 99 N.W.2d 627 (1959); Downing v. Overhead Door Corp., 707 P.2d 1027 (Colo.App.1985); Hodder v. Goodyear Tire & Rubber Co., 426 N.W.2d 826 (Minn. 1988); Smith v. Selco Products, Inc., 96 N.C.App. 151, 385 S.E.2d 173 (1989); Patton v. Hutchinson Wil-Rich Manufacturing Co., 253 Kan. 741, 861 P.2d 1299 (1993); Dixon v. Jacobsen Manufacturing Co., 270 N.J.Super. 569, 637 A.2d 915 (1994); Crowston v. Goodyear Tire & Rubber Co., 521 N.W.2d 401 (N.D.1994); United States Gypsum Co. v. Mayor & City Council of Baltimore, 336 Md. 145, 647 A.2d 405 (1994); Novak v. Navistar International Transportation Corp., 46 F.3d 844 (8th Cir. 1995); Liriano v. Hobart Corp., 92 N.Y.2d 232, 677 N.Y.S.2d 764, 700 N.E.2d 303 (1998); Lovick v. Wil-Rich, 588 N.W.2d 688 (Iowa 1999); Watkins v. Ford Motor Co., 190 F.3d 1213 (11th Cir. 1999); Lewis v. Ariens Co., 434 Mass. 643, 751 N.E.2d 862 (2001); Couch v. Astec Industries, Inc., 132 N.M. 631, 53 P.3d 398 (2002); Brown v. Crown Equipment Corp., 2008 ME 186, 960 A.2d 1188 (2008).
[4] Section 10 of Restatement (Third) of Torts: Products Liability provides as follows:
"(a) One engaged in the business of selling or otherwise distributing products is subject to liability for harm to persons or property caused by the seller's failure to provide a warning after the time of sale or distribution of a product if a reasonable person in the seller's position would provide such a warning.
(b) A reasonable person in the seller's position would provide a warning after the time of sale if:
(1) the seller knows or reasonably should know that the product poses a substantial risk of harm to persons or property; and
(2) those to whom a warning might be provided can be identified and can reasonably be assumed to be unaware of the risk of harm; and
(3) a warning can be effectively communicated to and acted on by those to whom a warning might be provided; and
(4) the risk of harm is sufficiently great to justify the burden of providing a warning." Restatement (Third) of Torts: Products Liability § 10 (1998).
| {
"pile_set_name": "FreeLaw"
} |
United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 24, 2006
Charles R. Fulbruge III
Clerk
No. 05-11377
Conference Calendar
JACKIE D. JOHNSON,
Plaintiff-Appellant,
versus
MARK YARBROUGH,
Defendant-Appellee.
--------------------
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 5:05-CV-239
--------------------
Before JOLLY, DeMOSS, and STEWART, Circuit Judges.
PER CURIAM:*
Jackie D. Johnson, Lamb County, Texas prisoner # 7037,
appeals from the district court’s dismissal of his 42 U.S.C.
§ 1983 complaint as frivolous and for failure to state a claim
upon which relief may be granted. Because Johnson has failed to
challenge the bases for the district court’s dismissal on appeal,
this appeal is subject to dismissal on that basis. See Brinkmann
v. Dallas County Deputy Sheriff Abner, 813 F.2d 744, 748 (5th
Cir. 1987). However, even if Johnson’s appeal were not dismissed
on that basis, the appeal lacks merit because Johnson’s complaint
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
No. 05-11377
-2-
was barred pursuant to Heck v. Humphrey, 512 U.S. 477, 486-87
(1994).
Johnson’s appeal is without arguable merit and is frivolous.
See Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983).
Because the appeal is frivolous, it is dismissed. See 5TH CIR.
R. 42.2.
Johnson is cautioned that the dismissal of this appeal as
frivolous counts as a strike under 28 U.S.C. § 1915(g), as does
the district court’s dismissal of his complaint. See Adepegba v.
Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996). He is also
cautioned that if he accumulates three strikes under § 1915(g),
he will not be able to proceed in forma pauperis in any civil
action or appeal filed while he is incarcerated or detained in
any facility unless he is under imminent danger of serious
physical injury. See § 1915(g).
APPEAL DISMISSED; SANCTION WARNING ISSUED.
| {
"pile_set_name": "FreeLaw"
} |
Opinion issued May 13, 2004
In The
Court of Appeals
For The
First District of Texas
NO. 01-03-00282-CR
NO. 01-03-00283-CR
KEITH HAMILTON DOWNS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 179th District Court
Harris County, Texas
Trial Court Cause Nos. 900246 & 900247
OPINION ON MOTION FOR REHEARING
Appellant, Keith Hamilton Downs, has filed a pro se motion for rehearing of
our opinion issued on March 18, 2004. We grant rehearing and withdraw our opinion
and judgment of March 18, 2004, and issue this opinion in its stead.
Appellant was charged by separate indictments with two felony offenses of
aggravated robbery with a deadly weapon. Appellant pleaded guilty to the charges
without an agreed recommendation for punishment from the State, and, following a
pre-sentence investigation (PSI) hearing, the trial court sentenced appellant to 40
years’ confinement and a $10,000 fine for each offense. On appeal, appellant’s
appointed counsel filed an Anders brief
stating that he had not found any arguable
grounds for appeal. Appellant filed a pro se response to counsel’s Anders brief
asserting three issues that he believed constituted arguable grounds for appeal.
Appellant contends that his pleas of guilty were unknowing and involuntary because
the trial court and trial counsel erroneously informed him that community supervision
was available as a possible punishment, and that he was denied effective assistance
of counsel because his trial counsel did not elicit certain mitigating evidence with
respect to his punishment. We conclude that appellant has raised no arguable
grounds for appeal, affirm, and grant appellant’s counsel’s motion to withdraw.
Anders Procedure
Under Anders, after this Court receives a brief from the defendant’s court-appointed attorney claiming that there are no arguable grounds for appeal, we must
review the record to make an independent determination. Stafford v. State, 813
S.W.2d 503, 511 (Tex. Crim. App. 1991). We consider any pro se response that the
defendant may file to the Anders brief, but we do not rule on the ultimate merits of
the defendant’s pro se response. If we determine that there are arguable grounds for
appeal, we must abate the appeal, remand the case to the trial court, and allow the
court-appointed attorney to withdraw. Id. The trial court must then either (1) appoint
another attorney to present all arguable grounds for appeal or (2) allow the defendant
to proceed pro se if the defendant so desires. Id. at 511.
Voluntariness of Plea
In his first two issues, appellant claims that his pleas of guilty were unknowing
and involuntary because (1) the trial court failed to admonish him that community
supervision was not an available punishment for the felony offense of aggravated
robbery, and (2) his trial counsel erroneously advised him that he was eligible for
community supervision.
The voluntariness of a plea is determined by the totality of circumstances.
Lopez v. State, 25 S.W.3d 926, 928 (Tex. App.—Houston [1st Dist.] 2000, no pet.).
There is a presumption of regularity of the judgment and the proceedings, and the
burden is on the defendant to overcome this presumption. Id. When, as in this case,
the defendant waives a court reporter at the plea hearing, the burden is nonetheless
on the defendant to see that a sufficient record is presented on appeal to show error.
See id at 928-29. Here, both judgments provide as follows:
The Defendant waived his right of trial by jury, and pleaded as indicated
above [guilty of aggravated robbery]. Thereupon, the Defendant was
admonished by the Court as required by law. It appearing to the Court
that the Defendant is mentally competent to stand trial, that the plea is
freely and voluntarily made, and that the Defendant is aware of the
consequences of his plea; the plea is hereby received by the Court and
entered of record.
In the absence of an affirmative showing to the contrary, the foregoing recitation in
the judgment is entitled to a presumption of regularity. Id. at 929.
Court Admonishments
Appellant waived the right to have a court reporter record his plea of guilty and
sentencing hearing, and the record is silent concerning whether appellant also
received oral admonishments in addition to the written ones. Thus, we do not know
whether the trial court admonished him orally about his ineligibility for community
supervision for aggravated robbery under the Code of Criminal Procedure Article
42.12, Sections 3 and 3g. Tex. Code Crim. Proc. Ann. art. 42.12 §§ 3, 3g (Vernon
Supp. 2004).
Even if appellant received only written admonishments from the court
concerning community supervision, however, those written admonishments were
substantially correct. Appellant was admonished for each of his offenses that:
(1) you are charged with the felony of aggravated robbery . . . If
convicted, you face the following range of punishment:
FIRST DEGREE FELONY: a term of life or any term of not
more than 99 years or less than 5 years in the Institution Division of the
Texas Department of Criminal Justice, and in addition, a fine not to
exceed $10,000 may be assessed.
Each admonishment included an acknowledgment by appellant concerning deferred
adjudication, which stated as follows:
(7) I understand that if the Court grants me Deferred Adjudication
under Article 42.12 Sec. 3d(a) V.A.C.C.P. on violation of any condition
I may be arrested and detained as provided by law. I further understand
that I am then entitled to a hearing limited to a determination by the
Court of whether to proceed with an adjudication of guilt on the original
charge. If the court determines that I violated a condition of probation,
no appeal may be taken from the Court’s determination and the Court
may assess my punishment within the full range of punishment for this
offense. After adjudication of guilt, all proceedings including the
assessment of guilt and my right to appeal continue as if adjudication of
guilt had not been deferred.
The written admonishments from the court also include appellant’s acknowledgment
that:
(8) I have freely, knowingly, and voluntarily executed this
statement in open court with the consent of and approval of my attorney.
. . .
(11) Joined by my counsel, I state that I understand the foregoing
admonishments and I am aware of the consequences of my plea. . . . I
am totally satisfied with the representation provided by my counsel and
I received effective and competent representation . . . .
Appellant initialed each written admonishment at the beginning of each document.
Appellant, his trial attorney, the State’s attorney, and the trial court judge each signed
the last page of the documents, which contained all of the written admonishments,
statements, and waivers by appellant.
A trial court has an affirmative duty to admonish a defendant on the “range of
punishment attached to the offense” before the court may accept any plea of guilty.
Tex. Code Crim. Proc. Ann. art. 26.13(a)(1) (Vernon Supp. 2004). A trial court has
no duty to admonish a defendant about his eligibility for community supervision. Ex
Parte Williams, 704 S.W.2d 773, 775 (Tex. Crim. App. 1986); Richard v. State, 788
S.W.2d 917, 919 (Tex. App.—Houston [1st Dist.] 1990, no pet.). The Court of
Criminal Appeals has “long held” that the range of punishment that must be included
in the required admonishment does not include community supervision. Williams,
704 S.W.2d at 775. However, if a court volunteers information about community
supervision, the information provided must be accurate. Id. at 775; Richard, 788
S.W.2d at 919. A guilty plea is involuntarily induced, therefore, if it is shown that:
(1) the trial court volunteered an admonishment that included information on the
availability of community supervision, thereby creating an affirmative duty to provide
accurate information on the availability of community supervision; (2) the trial court
provided inaccurate information on the availability of community supervision,
thereby leaving the defendant unaware of the consequences of his plea; and (3) the
defendant was misled or harmed by the inaccurate admonishment. Williams, 704
S.W.2d at 776-77; Tabora v. State, 14 S.W.3d 332, 334 (Tex. App.—Houston [14th
Dist] 2000, no pet.).
Because the written documents concerning appellant’s pleas do not advise
appellant of any eligibility for probation or community supervision under the Code
of Criminal Procedure article 42.12, section 3, the record before us does not show that
appellant was misled by the trial court. See Tex. Code Crim. Proc. Ann. art. 42.12
§§ 3, 3g; Williams, 704 S.W.2d at 776-77; Tabora, 14 S.W.3d at 334; Richard, 788
S.W.2d at 919. The record reflects that the trial court correctly advised appellant
concerning the possibility of receiving community supervision or probation only
through deferred adjudication pursuant to the Code of Criminal Procedure article
42.12, section 5, for which appellant was eligible. See Tex. Code Crim. Proc. Ann.
art. 42.12 § 5 (Vernon Supp. 2004).
Attorney’s Advice
Appellant contends that the motion for community supervision, signed by
appellant, and requesting that “the judge presiding place me on community
supervision” indicates that he was misadvised by his attorney concerning his
eligibility for probation. We will not speculate concerning appellant’s trial attorney’s
reasons for filing the motion for probation and the discussions between appellant and
his attorney. See Powers v. State, 727 S.W.2d 313, 315-16 (Tex. App.—Houston [1st
Dist.] 1987, pet. ref’d). An attorney could have correctly advised appellant that he
could receive probation or community supervision through deferred adjudication for
the offenses. See Tex. Code Crim. Proc. Ann. art. 42.12 § 5(d) (Vernon
Supp. 2004). Appellant raises other complaints concerning his attorney’s advice
about his eligibility for community supervision by the court, but these are not
supported by the record. Accordingly, we will not accept appellant’s assertations as
fact. See Gelabert v. State, 712 S.W.2d 813, 816 (Tex. App.—Houston [1st Dist.]
1986, pet. ref’d).
We conclude that there is no merit to appellant’s first and second issues.
Ineffective Assistance of Counsel
In his third issue, appellant claims that he was denied effective assistance of
counsel because his trial counsel failed to present evidence during the sentencing
hearing.
To be entitled to a new trial based on ineffective assistance, an appellant must
show that (1) counsel’s performance was so deficient that he was not functioning as
acceptable counsel under the Sixth Amendment, and that (2) there is a reasonable
probability that, but for counsel’s error, the result of the proceedings would have been
different. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984);
Hernandez v. State, 726 S.W.2d 53, 55-56 (Tex. Crim. App. 1986). The defendant
bears the burden to prove ineffective assistance of counsel. Strickland, 466 U.S. at
687, 104 S. Ct. at 2064. A claim of ineffective assistance of counsel must be firmly
supported in the record. McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App.
1996).
Appellant contends that his trial counsel failed to introduce mitigating evidence
during the sentencing hearing, including character witnesses and medical evidence
demonstrating his drug dependency and confused mental state. Because appellant
waived his right to have a court reporter record the sentencing hearing, there is no
record of the evidence that appellant’s trial counsel presented. We conclude that the
record fails to support appellant’s contentions concerning trial counsel’s actions
during the sentencing hearing. See McFarland, 928 S.W.2d at 500. Appellant has
failed to establish that trial counsel was ineffective, and we will not make a finding
of ineffectiveness based on speculation. See Gamble v. State, 916 S.W.2d 92, 93
(Tex. App.—Houston [1st Dist.] 1996, no pet.).
We conclude that there is no merit to appellant’s third issue.
Conclusion
After reviewing appellant’s pro se responses and conducting an independent
examination of the appellate record, we conclude that there are no arguable grounds
for appeal. Accordingly, we affirm the judgment of the trial court and grant
appellant’s counsel’s motion to withdraw.
Elsa Alcala
Justice
Panel consists of Chief Justice Radack and Justices Alcala and Bland.
Publish. Tex. R. App. P. 47.2(b).
| {
"pile_set_name": "FreeLaw"
} |
652 F.Supp.2d 999 (2009)
Caryl VONDRA, Personal Representative of the Estate of Melvin Vondra, William Meyers, Personal Representative of the Estate of Patricia Meyers, and Corey Ilg, Personal Representative of the Estate of Duane Ilg, Plaintiffs,
v.
CHEVRON U.S.A., INC., Shell Chemical L.P., Shell Oil Company, Union Oil Company of California, Barton Solvents, Inc., and Citgo Petroleum Corporation, Defendants.
No. 8:07CV85.
United States District Court, D. Nebraska.
August 17, 2009.
*1000 Christin A. Dimartino, Lonny L. Walters, Walters Law Firm, Kansas City, MO, Rodney J. Rehm, Rehm, Bennett Law Firm, Lincoln, NE, for Plaintiffs.
Courtney D. Carter, Chilton, Yambert Law Firm, Larry J. Chilton, Chilton, Yambert Law Firm, Scott C. Solberg, William S. Booth, Eimer, Stahl Law Firm, Chicago, IL, Janice Holmes, Robert M. Slovek, Kutak, Rock Law Firm, Donald P. Dworak, Stinson, Morrison Law Firm, Omaha, NE, George P. Pappas, Sheehy, Serpe Law Firm, Houston, TX, Walter E. Zink, II, Baylor, Evnen Law Firm, Lincoln, NE, for Defendants.
*1001 MEMORANDUM AND ORDER
JOSEPH F. BATAILLON, Chief Judge.
This matter is before the court on the defendants' motions for summary judgment, Filing Nos. 187, 190, and 198, and motions for hearings thereon, Filing Nos. 188, 192, and 200. The court finds there is no need for a hearing or oral argument on the motions for summary judgment, and the motions for a hearing will be denied. This is a wrongful death products liability action based on exposure to chemicals. In their Fourth Amended Complaint, plaintiffs assert negligence and strict liability claims for defective design and failure to warn, breach of implied warranty, failure to utilize a reasonable alternative under section 2(B) of the Restatement (Third) of Torts, and negligent failure to warn. The plaintiffs' decedents were all employees of Goodyear Tire & Rubber Co. ("Goodyear") in Lincoln, Nebraska. The plaintiffs allege their decedents sustained injuries, including contracting the disease Acute Myelogenous Leukemia ("AML"), by exposure to solvents containing benzene. Defendants Barton Solvents, Chevron U.S.A. Inc., Citgo Petroleum Corporation, Shell Chemical, L.P., d/b/a Shell Chemical Company, Shell Oil Company, and Union Oil Company of California, d/b/a Unocal Corporation, sold products containing benzene to Goodyear.
Defendant Citgo Petroleum Corporation ("Citgo") asserts that it cannot be liable for any alleged exposure that took place prior to March 18, 1983, because it did not exist until then and is not the successor to any prior entity. It also asserts that it cannot be liable for the claims of Melvin Vondra, who retired in 1994 and Patricia Meyers, who retired in 1995, because they cannot establish that they were ever exposed to a Citgo product.
All of the defendants contend that they did not, as a matter of law, owe a duty to warn of an unreasonably dangerous product because Goodyear was a "sophisticated user" of the products. They also argue that they are entitled to summary judgment on the plaintiffs' strict liability and implied warranty claims because they did not sell or distribute any "unreasonably dangerous" products to Goodyear or fail to adopt a reasonable alternative design. Further, the defendants argue that there is no evidence to establish proximate causation, an essential element of the plaintiffs' claims.
I. BACKGROUND
The parties have submitted voluminous evidence in support of their respective positions. See Filing Nos. 193, 194, 195, 196, 197, 198, 202, 208, 209, & 210, Indices of Evidence ("Evid."). In their respective briefs, the parties agree to many undisputed facts. See Filing Nos. 191, 199, 206, 214, & 215, Briefs. The following facts are gleaned from the parties' statements of undisputed facts. Essentially, the parties agree that the plaintiffs' decedents, Melvin Vondra, Duane Ilg and Patricia Meyers, contracted and died of Acute Myelogenous Leukemia ("AML"). Goodyear Lincoln is a rubber products facility that manufactures V-belts for use in a wide range of mechanical operations. Duane Ilg worked at Goodyear from 1984 until he officially retired in January 2006. Patricia Meyers worked at Goodyear Lincoln from July 1965 to July 1995. She officially retired in August 1995. Melvin Vondra began to work at Goodyear in 1968 and retired in 1994.
There is no dispute that Goodyear has been a longtime member of the National Safety Council and was aware, beginning in 1926, that dangers were associated with industrial uses of benzene. In a 1926 report, the National Safety Council Committee warned that there was a danger of chronic benzene poisoning arising from prolonged or repeated exposure to benzene *1002 fumes in the rubber industry. It recommended precautions such as increased ventilation to decrease workers' exposure to benzene and blood tests to detect and control incipient poisoning at the earliest possible stages. As early as 1942, Goodyear was testing workers for blood changes associated with exposure to benzene.
In 1969, Goodyear, other tire manufacturers, and employee Unions entered into a joint venture, known as the Joint Occupational Health Program ("JOHP") to evaluate the potential health hazards of occupational exposure to chemicals and solvents in rubber-industry workers. The University of North Carolina School of Public Health conducted several studies as part of the program. Goodyear's local union in Lincoln, Nebraska, Local 286 of the United Rubber, Cork, Linoleum and Plastic Workers of America ("URW"), participated in the program.
In 1974, the National Institute for Occupational Safety and Health ("NIOSH"), in a published report entitled "Criteria for a Recommended Standard, Occupational Exposure to Benzene," recommended that workers should not be exposed a concentration of benzene greater than 10 parts per million (ppm) parts of air, determined by a time-weighted average ("TWA") exposure for up to a 10-hour workday and 40-hour workweek.
Louis Beliczky, a certified industrial hygienist employed by the URW, was a review consultant for that report. At least as early as 1975, following a site visit by Mr. Beliczky, Goodyear was aware that workers at Goodyear's Lincoln, Nebraska plant ("Goodyear Lincoln") were coming into direct contact with chemicals that might be carcinogenic and was advised of inadequate ventilation at the plant. Mr. Beliczky authored a report based upon that visit. Attached to the Beliczky report was an epidemiological study about solvent exposure and leukemia among rubber workers. The president of Local Union 286 received a copy of the report.
In 1976, after a walk-through of a Goodyear division for an epidemiologic evaluation of mortality patterns among employees using benzene, the National Institute for Occupational Safety and Health ("NIOSH") reported that Goodyear performed monthly white blood and hemoglobin counts of certain employees exposed to benzene and removed employees who exhibited decreased white blood cell counts from areas where they could be exposed. NIOSH recommended that "[e]xposure to benzene should be controlled so that no worker will be exposed to benzene in excess of 1 ppm as determined by an air sample collected at one liter/minute for two hours." The president of Local 286 was forwarded the Occupational Health Studies News Letter from the University of North Carolina on studies involving leukemia and other blood related diseases and deaths associated with Goodyear's Pliofilm operations. In 1977, NIOSH reported on the deaths of Goodyear Pliofilm workers and its report showed a significantly increased risk of AML among Goodyear Pliofilm workers exposed to benzene.
At least by 1977, Goodyear purchased more than twenty (20) types of petroleum-derived solvents for use in the manufacture of tires, belts, hose sealants, cements, adhesives and numerous other products. It purchased these solvents primarily in bulk quantities. Goodyear assigned codes to the solvents and did not identify them by name. It used its own internal code names for identifying the rubber solvents used in its plants. At that time, OSHA estimated that 60,000 facilities with over 400,000 workers were engaged in industrial operations using liquid mixtures containing 1% or less benzene by volume.
*1003 Goodyear Lincoln authorized the JOHP to conduct an environmental survey of its plant in order to locate health hazards and recommend control measures. All normal first-shift operations were observed and engineering control measures, personal protective equipment and general exposure-related work procedures were observed and evaluated. Several bulk samples were procured for analysis by the Occupational Health Studies Group laboratory. Several management employees of Goodyear Lincoln and also the president and other members of the local union participated in the environmental survey. As part of the 1977 environmental survey, air monitoring samples, including samples for benzene, were obtained from various locations throughout Goodyear Lincoln. A Ventilation Survey was also conducted of the entire Goodyear Lincoln plant.
In 1977, NIOSH published a report entitled "Criteria for a Recommended Standard, Occupational Exposure to Refined Petroleum Solvents," which provided "that workers shall not be exposed to rubber solvents containing benzene at a concentration greater than a TWA concentration of 200 milligrams per cubic meter of air for up to a 10 hour work shift and a 40 hour week." All Goodyear local union presidents received a JOHP study entitled "An Epidemiological Study of Leukemia Among Rubber and Tire Industry Workers," which correlated benzene exposures in rubber plant workers with an apparent increased association with leukemia. As part of Goodyear's participation in JOHP, Goodyear's director of occupational health received copies of University of North Carolina reports on benzene exposure, leukemia and mortality rates. Pamphlets and newsletters that discussed practices for minimizing exposure to Benzene were disseminated to the participants in the JOHP studies.
In 1978, Goodyear was the world's largest tire company with 1977 sales of 6.6 billion dollars, and the 22nd largest manufacturing company in the United States, with the tenth largest number of worldwide employees. The evidence includes the testimony of several Goodyear occupational health managers at OSHA's 1978 Benzene Standard rulemaking process. In that testimony, Goodyear representatives stated that its information indicated that petroleum solvents suitable for tire building contain from .11 to .63 percent benzene. Goodyear management authored a training manual about benzene safety in 1978.
In 1983, in response to OSHA's request for information on strategies for controlling the level of benzene in the workplace, a Goodyear safety manager recommended that the control strategy for further reducing exposure to benzene be left to the employer. OSHA published its Final Rule on Occupational Exposure to Benzene in 1987, reducing the permissible exposure level to 1 part benzene per million parts of air, based upon an 8-hour time weighted average. See 29 C.F.R. Part 1910.
In opposition to the motion, the plaintiffs have presented evidence that shows that, although the URW International Union may have received information about benzene dangers and a safety training manual, there is no evidence that it was distributed to Union members. The plaintiffs presented evidence that shows that Goodyear's employees at the Lincoln plant were not familiar with a training program, entitled Health Training for Working with Benzene, allegedly implemented in 1978. There is no evidence that occupational health instructors taught any or all of the seven lesson modules of Health Training for Working with Benzene. Plaintiff William Meyers, personal representative for the estate of his late wife, Patricia Meyers, *1004 testified that he also works at Goodyear's Lincoln plant and was never offered training similar to Health Training for Working with Benzene. Several other former Goodyear employees also testified that they were not offered training.
Further, plaintiffs presented evidence that their decedents and other Goodyear employees had not been provided or used air filtering or monitoring devices. Patricia Meyers testified that she was not offered gloves to wear until the last few years of her employment and that she did not participate in the personal air monitoring program. The evidence shows that the plaintiffs' decedents' blood was not tested until they had worked for Goodyear for many years and tested only sporadically.
Plaintiffs also presented evidence that the only safe concentration of Benzene is zero and that defendants knew how to reduce the concentration of benzene-containing solvents to nearly zero by 1950. The defendants dispute that evidence. There is also evidence that the defendants would not supply Goodyear with benzene-free solvent. The parties disagree with respect to the significance of the evidence.
Defendant Citgo presented evidence that it did not manufacture, distribute, or sell any of the products alleged to have harmed plaintiffs' decedents Melvin Vondra or Patricia Meyers until May 1, 1997, after Vondra and Meyers had retired. The plaintiffs do not challenge that evidence.
II. DISCUSSION
A. Law
Summary judgment is appropriate when, viewing the facts and inferences in the light most favorable to the nonmoving party, "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); Harder v. ACandS, Inc., 179 F.3d 609, 611 (8th Cir.1999). The burden of establishing the nonexistence of any genuine issue of material fact is on the moving party. Fed.R.Civ.P. 56(c); Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). Therefore, if defendant does not meet its initial burden with respect to an issue, summary judgment must be denied notwithstanding the absence of opposing affidavits or other evidence. Adickes, 398 U.S. at 159-60, 90 S.Ct. 1598; Cambee's Furniture, Inc. v. Doughboy Recreational Inc., 825 F.2d 167, 174 (8th Cir.1987). If the moving party meets the initial burden of establishing the nonexistence of a genuine issue, the burden then shifts to the opposing party to produce evidence of the existence of a genuine issue for trial. Johnson v. Crooks, 326 F.3d 995, 1006 (8th Cir.2003). A "genuine" issue of material fact exists "when there is sufficient evidence favoring the party opposing the motion for a jury to return a verdict for that party." Id.
In determining whether a genuine issue of material fact exists, the evidence is to be taken in the light most favorable to the nonmoving party. Id. "In ruling on a motion for summary judgment, a court must not weigh evidence or make credibility determinations." Kenney v. Swift Transp., Inc., 347 F.3d 1041, 1044 (8th Cir.2003). "Where the unresolved issues are primarily legal rather than factual, summary judgment is particularly appropriate." Koehn v. Indian Hills Cmty. Coll., 371 F.3d 394, 396 (8th Cir.2004).
Under Nebraska law, a breach of implied-warranty claim (under contract law) is merged with a product liability claim for defective product design and failure to warn. Freeman v. Hoffman-La Roche, Inc., 260 Neb. 552, 618 N.W.2d 827, 843 (2000) (noting the law governing liability *1005 for harm to persons from the sale of defective products requires a consistent definition of defect that should properly come from tort law, whether the claim carries the label of tort or implied warranty of merchantability). A plaintiff can recover for a product defect under the theory of negligence or the theory of strict liability in tort. Id. at 845. In order to recover under a negligence theory, a plaintiff must establish a duty, a breach, causation, and damages. Morris v. Chrysler Corp., 208 Neb. 341, 303 N.W.2d 500, 502 (1981). To recover on a theory of strict liability, the plaintiff must prove that: (1) the defendant placed the product on the market for use and knew, or in the exercise of reasonable care should have known, that the product would be used without inspection for defects; (2) the product was in a defective condition when it was placed on the market and left the defendant's possession; (3) the defect is the proximate or a proximately contributing cause of the plaintiff's injury sustained while the product was being used in a way and for the general purpose for which it was designed and intended; (4) the defect, if existent, rendered the product unreasonably dangerous and unsafe for its intended use; and (5) the plaintiff's damages were a direct and proximate result of the alleged defect. Krajewski v. Enderes Tool Co., Inc., 469 F.3d 705, 708-09 (8th Cir.2006); Haag v. Bongers, 256 Neb. 170, 589 N.W.2d 318, 328 (1999); Restatement (Second) of Torts § 402A.
"Unreasonably dangerous" means that a product has a propensity for causing physical harm beyond that which would be contemplated by the ordinary user or consumer who purchases it, with the ordinary knowledge common to the foreseeable class of users as to its characteristics. Krajewski, 469 F.3d at 708-09; Rahmig v. Mosley Mach. Co., Inc., 226 Neb. 423, 412 N.W.2d 56, 69 (1987) (adopting consumer expectations test for strict liability under Restatement (Second) of Torts § 402A). A product may be defective and unreasonably dangerous because the product was sold without sufficient warnings or instructions. Id.; Haag, 589 N.W.2d at 329.
Comment k to 402A of the Restatement (Second) of Torts, provides an exception from strict liability when a product is deemed "unavoidably unsafe." Restatement (Second) of Torts, § 402A, cmt. k (referring to prescription drugs). In Nebraska, that exception does not provide a blanket immunity from strict liability, but must be applied on a case-by-case basis as an affirmative defense. Freeman, 618 N.W.2d at 834.
With respect to "Chattel Known to be Dangerous for Intended Use," the Restatement (Second) of Torts provides:
One who supplies directly or through a third person a chattel for another to use, is subject to liability to those whom the supplier should expect to use the chattel with the consent of the other or to be in the vicinity of its probable use, for bodily harm caused by the use of the chattel in the manner for which and by a person for whose use it is supplied, if the supplier
(a) knows, or from facts known to him should realize, that the chattel is or is likely to be dangerous for the use for which it is supplied;
(b) and has no reason to believe that those for whose use the chattel is supplied will realize its dangerous condition; and
(c) fails to exercise reasonable care to inform them of its dangerous condition or of the facts which make it likely to be so.
Restatement (Second) of Torts § 388 (1965). The "sophisticated user" defense has its genesis in subsection (b) of Section 388, which has been interpreted in Nebraska *1006 to mean that "there is no duty to warn if the user knows or should know of the potential danger, especially when the user is a professional who should be aware of the characteristics of the product." Strong v. E.I. DuPont de Nemours Co., Inc., 667 F.2d 682, 687 (8th Cir.1981) (applying Nebraska law); see also Vandelune v. 4B Elevator Components Unlimited, 148 F.3d 943, 946 (8th Cir.1998) (applying Section 388 under Iowa law); Erickson v. Monarch Indus., 216 Neb. 875, 347 N.W.2d 99, 108 (1984) (stating that "warning of a product's defects is unnecessary where the supplier of the product has reason to believe that those who will use it will have such special experience as will enable them to perceive the danger") (quotation omitted). Under the sophisticated user defense, a supplier has no duty to warn the ultimate user if it has reason to believe that the user will realize its dangerous condition. Gray v. Badger Mining Corp., 676 N.W.2d 268, 276 (Minn.2004); see also Ritchie v. Glidden, 242 F.3d 713, 724 (7th Cir.2001) (stating, under Indiana law, that the sophisticated purchaser defense to a failure-to-warn claim brought under negligence or strict liability theories provides that product suppliers do not have a duty to warn employees or customers of knowledgeable industrial purchasers as to product-related hazards).
In addition to limiting a supplier's duty, the "sophisticated user" concept also affects the element of proximate cause. Crook v. Kaneb Pipe Line Operating P'ship, L.P., 231 F.3d 1098, 1102 (8th Cir. 2000) (holding that if a user actually knows of the danger, a failure to warn cannot be a proximate cause of the injury); Strong, 667 F.2d at 688 ("Even if [the defendant] was under a duty to warn, its failure to do so could not have been the proximate cause of the accident because [the employer] and the plaintiff's decedent [a supervisory employee] were aware of the danger"); Peitzmeier v. Hennessy Indus., Inc., 97 F.3d 293, 300 (8th Cir.1996) (same); Hammond v. Nebraska Natural Gas Co., 204 Neb. 80, 86, 281 N.W.2d 520, 524 (1979) (holding that failure to warn of a gas leak "could not have been a proximate cause of the accident" if the gas company already knew of the leak). Accordingly, under Nebraska law, the "rule of the `sophisticated user' is no more than an expression of common sense as to why a party should not be liable when no warnings or inadequate warnings are given to one who already knows or could reasonably have been expected to know of the dangers." Crook, 231 F.3d at 1102 (noting that constructive knowledge of a danger will suffice to limit a duty to warn, but actual notice is required to negate proximate cause).
The sophisticated user defense is an analog to the "learned intermediary" defense as described in § 6(d) of the Restatement (Third) of Products Liability. See, e.g., Freeman, 618 N.W.2d at 842 (adopting learned intermediary doctrine for prescription drugs). Courts have held, however, that the rationale for the learned intermediary doctrine, that a patient may obtain a product only through a qualified professional who presumably will explain the dangers of the product to the patient, "cannot sensibly be stretched to apply" in all industrial employer/employee situations. See, e.g., Donahue v. Phillips Petroleum Co., 866 F.2d 1008, 1013 n. 9 (8th Cir.1989) (applying Missouri law).
In certain situations, a bulk supplier may discharge his duty to warn by giving warnings to a third person, an intermediary. See Restatement (Second) of Torts § 388, comment n. The Restatement focuses on the conduct of the supplier of the dangerous product, not on the conduct of the intermediary, and requires that the conduct be reasonable. O'Neal v. Celanese Corp., 10 F.3d 249, 251 (4th Cir.1993) *1007 (noting that focus remains on the conduct of the supplier, but that conduct is judged in light of the circumstances); see also Jay v. Moog Automotive, 264 Neb. 875, 881, 652 N.W.2d 872 (Neb.2002) (noting that the manufacturer's conduct is at issue, that is, whether the manufacturer's conduct was reasonable in view of the foreseeable risk of injury). Thus, proof that an intermediary knows the product is dangerous will not always absolve the supplier of a duty to warn ultimate consumers. O'Neal, 10 F.3d at 251; see also Gray v. Badger Mining Corp., 676 N.W.2d 268, 274-77 (Minn.2004); Hall v. Ashland, 625 F.Supp. 1515 (D.Conn.1986) (knowledge of a risk is not the same as knowledge of the extent of the risk); Whitehead v. Saint Joe Lead Co., Inc., 729 F.2d 238, 253 (3d Cir.1984) (rejecting the theory that the fact that bulk sales of natural materials are made to industrial purchasers who might be termed "knowledgeable users" should insulate the manufacturers of the materials from any duty to warn and affirming the denial of summary judgment to a lead manufacturer on theory that it sold lead to employer who was knowledgeable user and that dangers of lead were well known); Oman v. Johns-Manville, 764 F.2d 224, 233 (4th Cir.1985) (finding no error in court's refusal to instruct jury that the fact that the plaintiff's employer was a sophisticated user cut off the manufacturer's duty to warn). "Giving a third person through whom the chattel is supplied all the information necessary to its safe use" is not always sufficient to relieve the supplier from liability; the issue is whether this method "gives a reasonable assurance that the information will reach those whose safety depends on their having it." Restatement (Second) of Torts § 388, comment n; Adams v. Union Carbide Corp., 737 F.2d 1453, 1465 (6th Cir.1984) ("[T]he [supplier's] duty to warn may be discharged by providing information of the dangerous propensities of the product to a third person . . . upon whom it can reasonably rely to communicate the information to the ultimate users of the product"); Weekes v. Michigan Chrome & Chemical Co., 352 F.2d 603, 607 (6th Cir.1965) ("[D]efendant was required to exercise reasonable care . . . to reasonably assure itself that its immediate vendee and distributor was so informed as to be able and likely to transmit . . . knowledge of [the product's] dangers."); In re Brooklyn Navy Yard Asbestos Litigation, 971 F.2d 831, 838 (2d Cir.1992) (stating that "[t]he sophisticated intermediary doctrine protects a manufacturer from liability only if the chain of distribution is such that the duty to warn ultimate users should fall on an intermediary in that chain, rather than on the manufacturer"); Smith v. Walter C. Best, Inc., 927 F.2d 736, 741 (3rd Cir.1990) (weighing totality of factors is required to determine reasonableness of reliance on a third party as a conduit of necessary product information); Stuckey v. Northern Propane Gas Co., 874 F.2d 1563, 1568 (11th Cir.1989) (holding that a supplier's duty to warn an ultimate consumer can be discharged by a warning given to an intermediary, but focus is on whether the intermediary's knowledge was sufficient to protect the ultimate consumer); Hunnings v. Texaco, Inc., 29 F.3d 1480 (11th Cir.1994) (holding that manufacturers of inherently dangerous products do not enjoy blanket protection from liability because others in chain of distribution reformulate or repackage it and stating that "[i]f a manufacturer knows or should know that downstream distributors are not giving adequate warnings to the end user of a product, then the bulk manufacturer may be held liable for failing to take appropriate action").
The finder of fact must consider a variety of factors in order to determine *1008 whether a supplier's reliance on an intermediary to warn ultimate users was reasonable. O'Neal, 10 F.3d at 252; Gray v. Badger Mining Corp., 676 N.W.2d at 278 (stating that the sophisticated intermediary defense is generally only available where the supplier can show that it used reasonable care in relying upon the intermediary to give the warning to the end user). Those factors include:
(1) the dangerous condition of the product; (2) the purpose for which the product is used; (3) the form of any warnings given; (4) the reliability of the third party as a conduit of necessary information about the product; (5) the magnitude of the risk involved; and (6) the burdens imposed on the supplier by requiring that he directly warn all users.
Eagle-Picher Industries, Inc. v. Balbos, 326 Md. 179, 604 A.2d 445, 464 (1992); see Restatement (Second) of Torts § 388 cmt. n. Courts typically apply the sophisticated intermediary defense when: (1) the employer maintained full knowledge of the range of dangers equal to that of the manufacturer; or (2) the manufacturer made the employer knowledgeable by providing adequate warnings and safety instructions to the employer. Gray v. Badger Mining Corp., 676 N.W.2d at 277-78.
B. Analysis
The defendants argue that the uncontroverted evidence that Goodyear was knowledgeable concerning the dangers of benzene and that the defendants, as suppliers, had no duty to warn the ultimate users of the dangers. Defendants' arguments are an amalgam of the "sophisticated user," "bulk supplier," and "learned intermediary" defenses. The parties contend that resolution of this issue requires the court to determine whether Nebraska courts have adopted, or are likely to adopt this defense or defenses. The court finds, however, that it need not make that determination because even if such a defense is available in Nebraska, the defendants have not presented evidence that shows, as a matter of law, that they are entitled to the defense. At this point in the litigation, the defendants have not shown that any combination of these theories would shield them from liability. All of these defenses require a defendant to show that reliance on a third party to warn ultimate users of a product's dangers is reasonable. The evidence does not establish reasonable reliance.
In order to be absolved of liability, defendants must not only show that they took reasonable steps to warn end-users of the dangers associated with benzene through their intermediary, but that it was reasonable for them to rely on the intermediary to impart the warnings. The evidence presented to the court does not establish either of these facts. Although defendants have shown that Goodyear had some level of knowledge and awareness of the dangers associated with benzene, they have not shown that it was reasonable for the defendants to rely on Goodyear to convey the appropriate warnings to its employees, who were foreseeable end-users of the products. There has been no showing that the defendants actually apprised Goodyear of the dangers, that Goodyear fully appreciated those dangers, or that they acted in a manner reasonably calculated to ensure that the necessary information would be passed on to the ultimate handlers of the products. Defendants have not shown that they attempted to ascertain the extent to which Goodyear was disseminating information about the dangers of the product.
The court finds there are genuine issues with respect to numerous material facts. The evidence regarding the nature and extent of the defendants' knowledge of the danger, Goodyear's knowledge of the danger, and the plaintiffs' decedents' *1009 knowledge of the danger is in dispute. The adequacy of Goodyear's warnings or safety measures is at issue, and there are conflicts in the evidence with respect to when and to what extent the plaintiffs' decedents could have appreciated the specific danger of benzene exposure. There is further conflicting evidence on whether it was possible or feasible for the defendants to eliminate the danger and on whether there is any safe level of exposure to benzene. Plaintiffs have presented evidence that defendants did not adhere to specifications that Goodyear made with respect to benzene content and that they inaccurately advised Goodyear that it was not feasible to remove all of the benzene from petroleum solvents used in the manufacture of tires. There is also some evidence that the defendants were aware of some of the risks of benzene as early as 1943 and aware of that it could reduce the concentration of benzene in its solvents through fractional distillation as early as 1950.
There are also genuine issues of material fact with respect to the plaintiffs' decedents' exposure to the chemical. Although the defendants presented evidence that Goodyear trained its employees on the safe handling of benzene, there is a conflict in the testimony with respect to whether such training was actually provided to these decedents. The evidence is also inconclusive with respect to whether or to what extent the plaintiffs' decedents were informed of the dangers by the unions. Viewing the evidence in the light most favorable to plaintiffs, defendants have not shown that they are entitled to judgment as a matter of law by reason of the "sophisticated user" defense.
Defendant Citgo, however, has presented evidence that shows that it is not liable to the personal representatives of the estates of Melvin Vondra and Patricia Meyers because it did not supply the allegedly harmful products to Goodyear while Vondra and Meyers worked at the Goodyear Lincoln plant. The plaintiffs do not dispute defendant Citgo's contentions. Accordingly, the court finds that defendant Citgo's motion for summary judgment should be granted with respect to the claims of plaintiffs Caryl Vondra, Personal Representative of the Estate of Melvin Vondra, and William Meyers, Personal Representative of the Estate of Patricia Meyers.
IT IS ORDERED:
1. Defendant Barton Solvents motion for summary judgment (Filing No. 187) is denied.
2. Defendants Shell Oil Company, Shell Chemical LP, Union Oil Company of California and Chevron U.S.A. Inc.'s motion for summary judgment (Filing No. 190) is denied.
3. Defendant Citgo Petroleum Corporation's motion for summary judgment (Filing No. 198) is granted in part; the claims of Caryl Vondra, Personal Representative of the Estate of Melvin Vondra, against defendant Citgo Petroleum Corporation are dismissed; the claims of William Meyers, Personal Representative of the Estate of Patricia Meyers, against Citgo Petroleum Corporation are dismissed; defendant Citgo Petroleum Corporation's motion for summary judgment is denied in all other respects.
4. Defendants' motions for hearings (Filing Nos. 188, 192, and 200) are denied.
| {
"pile_set_name": "FreeLaw"
} |
***********************************************
The “officially released” date that appears near the be-
ginning of each opinion is the date the opinion will be pub-
lished in the Connecticut Law Journal or the date it was
released as a slip opinion. The operative date for the be-
ginning of all time periods for filing postopinion motions
and petitions for certification is the “officially released”
date appearing in the opinion.
All opinions are subject to modification and technical
correction prior to official publication in the Connecticut
Reports and Connecticut Appellate Reports. In the event of
discrepancies between the advance release version of an
opinion and the latest version appearing in the Connecticut
Law Journal and subsequently in the Connecticut Reports
or Connecticut Appellate Reports, the latest version is to
be considered authoritative.
The syllabus and procedural history accompanying the
opinion as it appears in the Connecticut Law Journal and
bound volumes of official reports are copyrighted by the
Secretary of the State, State of Connecticut, and may not
be reproduced and distributed without the express written
permission of the Commission on Official Legal Publica-
tions, Judicial Branch, State of Connecticut.
***********************************************
AMY BINKOWSKI v. BOARD OF EDUCATION OF
THE CITY OF NEW HAVEN ET AL.
(AC 39298)
DiPentima, C. J., and Bright and Bishop, Js.
Syllabus
The plaintiff school teacher sought to recover damages from the defendants
J and O, the principal and assistant principal of the school at which she
taught, for intentional infliction of emotional distress in connection with
a work related incident at the school. In her complaint, the plaintiff
alleged, inter alia, that the defendants had instituted a policy of denying
assistance to teachers confronted by violent and disruptive students in
their classrooms, and had refused to assist her when she was assaulted
and injured by two students. She further alleged that the defendants’
conduct was wilful and malicious and carried out for the conscious
purpose of causing physical and emotional injury to her and other teach-
ers. The defendants filed a motion to strike the complaint on the ground
that the plaintiff’s claims were barred by the exclusivity provision (§ 31-
293a) of the Workers’ Compensation Act (act) (§ 31-275 et seq.), which
provides that the act is the exclusive remedy for employees injured by
a coworker and that no civil action may be brought against a coworker
unless the wrongful conduct was wilful or malicious. The trial court
granted the defendants’ motion to strike, concluding that the plaintiff’s
complaint did not state a legally sufficient cause of action that fell
within intentional tort exception to the exclusivity provision of the act.
Thereafter, the trial court granted the defendants’ motion for judgment
and rendered judgment in favor of the defendants. On the plaintiff’s
appeal to this court, held that the trial court properly granted the defen-
dants’ motion to strike, as the plaintiff’s complaint failed to state a cause
of action that fell within the intentional tort exception to the exclusivity
provision of the act: the plaintiff’s complaint failed to state a cause of
action under the actual intent standard set forth in Suarez v. Dickmont
Plastics Corp. (242 Conn. 255), the factual allegations in the complaint
having been insufficient to demonstrate that the defendants actually
intended to cause the plaintiff’s injury, as the complaint was devoid of
any factual allegations that supported the plaintiff’s conclusory allega-
tion that the defendants had the conscious purpose of causing the plain-
tiff physical or emotional injury, or that they directed or authorized the
students to assault the plaintiff, the complaint, which alleged that O
sent a nurse to assist the plaintiff, contained factual allegations that
undermined the plaintiff’s claim, and although the complaint alleged
that J stood at the end of the hallway and did nothing during the incident,
there was no allegation that J knew what had happened to the plaintiff;
moreover, the plaintiff’s complaint failed to state a cause of action under
the substantial certainty standard set forth in Suarez because, although
it alleged that the defendants implemented a policy denying assistance
to teachers with the intent to cause her physical and emotional injury, it
failed to allege sufficient facts that would establish that they intentionally
created a situation that they believed was substantially certain to cause
the plaintiff’s injuries.
Submitted on briefs November 29, 2017—officially released March 27, 2018
Procedural History
Action to recover damages for intentional infliction
of emotional distress, and for other relief, brought to
the Superior Court in the judicial district of New Haven,
where the action was withdrawn as against the defen-
dant Board of Education of the City of New Haven;
thereafter, the court, Nazzaro, J., granted the motion
to strike filed by the defendant Yolanda Jones-Generette
et al.; subsequently, the court, Blue, J., granted the
motion for judgment filed by the defendant Yolanda
Jones-Generette et al. and rendered judgment thereon,
from which the plaintiff appealed to this court.
Affirmed.
John R. Williams filed a brief for the appellant
(plaintiff).
Audrey C. Kramer, assistant corporation counsel,
filed a brief for the appellees (defendant Yolanda Jones-
Generette et al.).
Opinion
BRIGHT, J. The plaintiff, Amy Binkowski, appeals
from the judgment of the trial court rendered in favor
of the defendants Yolanda Jones-Generette and Linda
O’Brien1 following the granting of their motion to strike
her third revised complaint. On appeal, the plaintiff
claims that the court improperly concluded that her
complaint failed, as a matter of law, to allege facts that
would bring it within the intentional tort exception to
the exclusivity provision of the Workers’ Compensation
Act (act), General Statutes § 31-275 et seq., as set forth
in General Statutes § 31-293a. We disagree and, accord-
ingly, affirm the judgment of the trial court.
The plaintiff’s third revised complaint2 contains two
counts, one against each defendant, alleging intentional
infliction of emotional distress. Both counts allege iden-
tical facts. The plaintiff’s claims arise out of a work
related incident that occurred on February 26, 2014. At
that time, the plaintiff was a tenured teacher in the
New Haven public school system at Lincoln-Bassett
Elementary School (school) in New Haven. Jones-Gen-
erette was the principal, and O’Brien was the assistant
principal, for the school during the 2013–2014 school
year.
In the summer of 2013, the defendants instituted a
policy for the school regarding student discipline. The
policy established that the administrators of the school
would not be involved in any issues related to student
discipline. In accordance with the policy, the defen-
dants ‘‘refused to allow classroom teachers to send
disruptive students out of the classroom to a different
environment, refused to intervene in any disrupted
classroom, refused to discipline disruptive or violent
students or to permit classroom teachers to discipline
disruptive or violent students, refused to allow help to
be summoned from outside of the school under any
circumstances, and refused to provide any protection
whatsoever to teachers confronted with disruptive or
violent students.’’
During the 2013–2014 school year, violence at the
school escalated. On February 26, 2014, two students
assaulted the plaintiff in her classroom, knocking her
to the floor. As a result of the assault, the plaintiff
severely sprained her left ankle and knee. The plaintiff
was unable to stand, so she called out for help. Adrianna
Petrucci, the teacher in the classroom across the hall,
responded to the plaintiff’s call for help. The plaintiff
was in pain, lying on the floor, and Petrucci immediately
called the school’s main office for assistance. Petrucci
‘‘also sent a text message to . . . O’Brien, stating: ‘[The
plaintiff] is on the floor in her room from being shoved
out of the way.’ ’’ After receiving the text message,
O’Brien told Petrucci to send a student to the office.
Petrucci repeated that the plaintiff ‘‘is on the floor’’ in
her classroom, and O’Brien responded that she did not
know what that meant.
Although O’Brien did not send security to assist the
plaintiff or go to the classroom herself, she sent the
school nurse to help the plaintiff. While the nurse and
another teacher helped place the plaintiff in a wheel-
chair, some students began fighting in the classroom;
the defendants still had not gone to the plaintiff’s class-
room. The plaintiff alleged that ‘‘Jones-Generette was
standing down at the end of the hallway doing nothing.
At no point was 911 called, and at no point was any
outside assistance summoned.’’
The plaintiff alleged that the defendants’ conduct was
‘‘wilful and malicious. It was carried out for the con-
scious purpose of causing physical and emotional injury
to the plaintiff and other teachers and to cause condi-
tions in the school to deteriorate so badly that the state
of Connecticut would offer special financial assistance
to the school, which otherwise would not have been
available. The said conduct was carried out in conscious
disregard of the injuries it would cause to the plaintiff,
to other teachers, and to the students in the school.’’
The plaintiff further alleged that the defendants’ con-
duct ‘‘was extreme and outrageous and was carried out
with the knowledge that it would cause the plaintiff to
suffer severe emotional distress.’’ The plaintiff sought
compensatory and punitive damages, claiming that she
suffered physical injuries and emotional distress as the
result of the defendants’ conduct.
The defendants filed a motion to strike the plaintiff’s
third revised complaint. They argued that the plaintiff’s
claims are barred by the exclusivity provision of the
act because the complaint failed to allege sufficient
facts to support the claim that the defendants’ conduct
was wilful or malicious. Following a hearing on June
22, 2015, the trial court, Nazzaro, J., issued a memoran-
dum of decision granting the defendants’ motion to
strike. The court concluded that there was ‘‘nothing in
the complaint to suggest that there was intent on the
part of the defendants to cause the plaintiff’s particular
injuries.’’ Specifically, the court held that ‘‘the defen-
dants’ failure to take action does not demonstrate that
they intended to cause the harmful situation under
which the plaintiff suffered injury, and therefore their
actions do not fall within an exception [to] the exclusiv-
ity provision of the [a]ct. Accordingly, the plaintiff has
not set forth a legally sufficient cause of action.’’ The
plaintiff filed a notice of intent to appeal on October
9, 2015, and, thereafter, the trial court, Blue, J., granted
the defendants’ motion for judgment and rendered judg-
ment in favor of the defendants. This appeal followed.
We begin by setting forth the standard of review
and legal principles that govern our resolution of this
appeal. ‘‘The standard of review on an appeal challeng-
ing the granting of a motion to strike is well established.
A motion to strike challenges the legal sufficiency of a
pleading, and, consequently, requires no factual find-
ings by the trial court. As a result, our review of the
court’s ruling is plenary. . . . We take the facts to be
those alleged in the complaint that has been stricken
and we construe the complaint in the manner most
favorable to sustaining its legal sufficiency. . . . Thus,
[i]f facts provable in the complaint would support a
cause of action, the motion to strike must be denied.
. . . [W]e assume the truth of both the specific factual
allegations and any facts fairly provable thereunder.
. . . A [motion to strike] admits all facts well pleaded;
it does not admit legal conclusions or the truth or accu-
racy of opinions stated in the pleadings.’’ (Citations
omitted; emphasis omitted; internal quotation marks
omitted.) Mercer v. Champion, 139 Conn. App. 216, 223,
55 A.3d 772 (2012).
Section 31-293a provides in relevant part that ‘‘[i]f an
employee . . . has a right to benefits or compensation
under [the act] on account of injury . . . caused by
the negligence or wrong of a fellow employee, such
right shall be the exclusive remedy of such injured
employee . . . and no action may be brought against
such fellow employee unless such wrong was wilful or
malicious . . . .’’
‘‘In Jett v. Dunlap, 179 Conn. 215, 425 A.2d 1263
(1979), our Supreme Court recognized an exception
to the exclusivity provision for intentional torts of an
employer. . . . Subsequently, in Suarez v. Dickmont
Plastics Corp., 229 Conn. 99, 639 A.2d 507 (1994)
(Suarez I), and Suarez v. Dickmont Plastics Corp., 242
Conn. 255, 698 A.2d 838 (1997) (Suarez II), the court
expanded the intentional tort exception to the exclusiv-
ity provision to include circumstances in which either
. . . the employer actually intended to injure the plain-
tiff (actual intent standard) or . . . the employer inten-
tionally created a dangerous condition that made the
plaintiff’s injuries substantially certain to occur (sub-
stantial certainty standard).’’ (Citation omitted; empha-
sis omitted; internal quotation marks omitted.) Dinino
v. Federal Express Corp., 176 Conn. App. 248, 255–56,
169 A.3d 303 (2017).
On appeal, the plaintiff argues that her complaint
states a cause of action under both the actual intent
standard and the substantial certainty standard. We
disagree.
I
The plaintiff first claims that her complaint ‘‘clearly
and explicitly alleged intentional conduct . . . with
great factual detail.’’ The plaintiff argues that the factual
allegations in her complaint ‘‘would support a jury’s
finding that the defendants intentionally and mali-
ciously took affirmative actions, and took some of those
actions with the intent that this specific plaintiff suffer
the injuries which she did suffer.’’ We are not persuaded.
The actual intent prong of Suarez II requires that
‘‘[b]oth the action producing the injury and the resulting
injury must be intentional. . . . [The] characteristic
element is the design to injure either actually enter-
tained or to be implied from the conduct and circum-
stances.’’ (Citation omitted; internal quotation marks
omitted.) Suarez II, supra, 242 Conn. 279. ‘‘Without a
showing that the employer’s violations of safety regula-
tions were committed with a conscious and deliberate
intent directed to the purpose of inflicting an injury
. . . [a] wrongful failure to act to prevent injury is not
the equivalent of an intention to cause injury.’’ (Citation
omitted; internal quotation marks omitted.) Ramos v.
Branford, 63 Conn. App. 671, 685, 778 A.2d 972 (2001).
‘‘A result is intended if the act is done for the purpose
of accomplishing such a result . . . .’’ (Emphasis in
original; internal quotation marks omitted.) Suarez II,
supra, 279.
In her complaint, the plaintiff alleges that the defen-
dants instituted a policy of denying assistance to teach-
ers confronted by violent and disruptive students in
their classrooms, and then refused to assist the plaintiff
when she was assaulted in her classroom by two stu-
dents. According to the plaintiff, this policy of inaction,
and the defendants’ failure to take action once the plain-
tiff had been injured, were ‘‘carried out for the con-
scious purpose of causing physical and emotional injury
to the plaintiff and other teachers’’ in order to receive
financial assistance from the state of Connecticut. Con-
struing these facts in the manner most favorable to
sustaining the legal sufficiency of the complaint, as we
must, we, nevertheless, conclude that the plaintiff has
failed to state a cause of action that falls within the
intentional tort exception to the exclusivity provision
of the act.
In order to satisfy the actual intent prong, there has to
be factual allegations that establish that the employer’s
intentional conduct was designed to cause the employ-
ee’s injury. In McCoy v. New Haven, 92 Conn. App. 558,
560, 886 A.2d 489 (2005), the plaintiff alleged that he
was assaulted by a coemployee and that, ‘‘as the city
affirmatively condoned and thereby positively fostered
. . . assaultive conduct by [the coemployee] against his
co-workers, the city either intended or was substantially
certain that the plaintiff’s injuries would occur.’’ (Inter-
nal quotation marks omitted.) This court affirmed the
trial court’s granting of the city’s motion to strike. Id.
We reasoned that ‘‘[a]lthough [the plaintiff’s complaint]
alleges in conclusory fashion that the [Suarez] excep-
tion applies, the complaint contains no allegations that
the city intended to injure the plaintiff or that the city
directed or authorized [the coemployee] to injure the
plaintiff.’’ Id., 563. Relying on our Supreme Court’s deci-
sion in Jett v. Dunlap, supra, 179 Conn. 215, this court
explained that merely alleging that the employer con-
doned the acts that resulted in the plaintiff’s injury
is not enough. Id., 564. We concluded that ‘‘[a]bsent
allegations that the city . . . directed or authorized the
assault, the Suarez exception does not apply.’’ Id.
In the present case, the plaintiff’s complaint contains
a conclusory allegation that the defendants undertook
their actions for the ‘‘conscious purpose’’ of causing
the plaintiff physical and emotional injury. As in McCoy,
there is no allegation that the defendants directed or
authorized the students to assault the plaintiff, and the
plaintiff’s factual allegations do not support the conclu-
sory allegation that the defendants intended to cause
the plaintiff’s injuries. In fact, the complaint contains
factual allegations that undermine the plaintiff’s claim
that the defendants intended to cause her to suffer
physical and emotional injuries. For example, the com-
plaint alleges that O’Brien sent a nurse to assist the
plaintiff, which is inconsistent with an intent to cause
the plaintiff any type of harm. Additionally, the com-
plaint alleges that Jones-Generette stood at the end of
the hallway doing nothing during the incident, but there
is no allegation that Jones-Generette even knew what
had happened to the plaintiff. Accordingly, the plain-
tiff’s complaint is devoid of any factual allegations that
would support her conclusory allegation that the defen-
dants actually intended to injure the plaintiff. At best,
the plaintiff’s complaint alleges that the defendants con-
doned violence in the school, which is insufficient to
establish that the defendants actually intended to injure
the plaintiff. See McCoy v. New Haven, supra, 92 Conn.
App. 563–64.
Simply put, the factual allegations in the complaint,
if proven, are insufficient to demonstrate that the defen-
dants actually intended to injure the plaintiff. Accord-
ingly, the plaintiff’s complaint fails to state a cause of
action under the actual intent prong of Suarez II.
II
The plaintiff also claims that she has sufficiently
pleaded facts to sustain the legal sufficiency of her
complaint under the substantial certainty standard. The
plaintiff argues that the factual allegations establish that
her ‘‘injuries were known to the defendants to be a
substantially certain consequence of their actions.’’
We disagree.
‘‘Although it is less demanding than the actual intent
standard, the substantial certainty standard is, nonethe-
less, an intentional tort claim requiring an appropriate
showing of intent to injure on the part of the defendant.
. . . Specifically, the substantial certainty standard
requires that the plaintiff establish that the employer
intentionally acted in such a way that the resulting
injury to the employee was substantially certain to
result from the employer’s conduct. . . . To satisfy the
substantial certainty standard, a plaintiff must show
more than that [a] defendant exhibited a lackadaisical
or even cavalier attitude toward worker safety . . . .
Rather, a plaintiff must demonstrate that [the] employer
believed that its conduct was substantially certain to
cause the employee harm.’’ (Citations omitted; empha-
sis omitted; internal quotation marks omitted.) Sullivan
v. Lake Compounce Theme Park, Inc., 277 Conn. 113,
118, 889 A.2d 810 (2006). ‘‘Substantial certainty exists
when the employer cannot be believed if it denies that
it knew the consequences were certain to follow.’’ Sor-
ban v. Sterling Engineering Corp., 79 Conn. App. 444,
455, 830 A.2d 372, cert. denied, 266 Conn. 925, 835 A.2d
473 (2003).
The trial court, relying on this court’s decision in
Melanson v. West Hartford, 61 Conn. App. 683, 767 A.2d
764, cert. denied, 256 Conn. 904, 772 A.2d 595 (2001),
concluded that the plaintiff had failed to state a cause
of action under the substantial certainty prong of
Suarez II. In Melanson, the plaintiff was a police officer
who had been shot accidentally by a fellow police offi-
cer while they were executing a search warrant. Id.,
685–86. The plaintiff, relying on the substantial certainty
standard, claimed that the town’s failure to manage,
train, and staff his team of police officers adequately
permitted the inference that the town intentionally had
created a situation that it knew was substantially certain
to cause his injuries. Id., 686.
This court affirmed the trial court’s granting of the
defendants’ motion to strike the plaintiff’s complaint,
concluding that the plaintiff had not alleged facts that
would permit a finding that the town knew that the
plaintiff’s injury was substantially certain to occur. Id.,
689–90. This court rejected the plaintiff’s claim for two
reasons. First, we reasoned that ‘‘the alleged town fail-
ings on which the plaintiff rests his case are allegations
of misconduct that address negligence rather than
intentional misconduct. Failure to take affirmative
remedial action, even if wrongful, does not demonstrate
an affirmative intent to create a situation that causes
personal injury.’’ (Footnote omitted.) Id., 689. Second,
the plaintiff’s ‘‘complaint provide[d] no factual basis for
a finding that the town was substantially certain that
the specific injury that the plaintiff suffered would
occur.’’ Id.
The present case is controlled by this court’s decision
in Melanson. In Melanson, the plaintiff alleged that the
town and the individual defendants had failed to take
affirmative remedial action. On appeal, this court noted
that such allegations ‘‘address negligence rather than
intentional misconduct.’’ Id., 689. In the present case,
the plaintiff has alleged that the defendants affirma-
tively failed to take certain actions and that they knew
the plaintiff’s injuries would occur as the result of their
policy of inaction. Although the plaintiff has framed
the defendants’ failure to take action as ‘‘intentional
conduct,’’ the plaintiff’s claim is indistinguishable from
the plaintiff’s claim in Melanson. At best, the defen-
dants’ conduct, as alleged in the complaint, establishes a
‘‘lackadaisical or even cavalier attitude towards worker
safety . . . .’’ (Internal quotation marks omitted.) Sul-
livan v. Lake Compounce Theme Park, Inc., supra, 277
Conn. 119. The defendants’ allegedly wrongful conduct
‘‘is not the equivalent of ordering [a] soldier to walk
through a mine field all by himself just to see if it was
working.’’ (Internal quotation marks omitted.) Melan-
son v. West Hartford, supra, 61 Conn. App. 689 n.7.
Although the plaintiff has alleged that the defendants
implemented a policy denying assistance to teachers
with the intent to cause her physical and emotional
injury, she has failed to allege sufficient facts that would
establish that the defendants intentionally created a
situation that they believed was substantially certain to
cause the plaintiff’s injuries. Accordingly, the plaintiff’s
complaint fails to state a cause of action under the
substantial certainty prong of Suarez II.
In sum, the plaintiff failed to allege facts that, if
proven, would be sufficient to allow recovery under
either the actual intent standard or the substantial cer-
tainty standard. Accordingly, the trial court properly
granted the defendants’ motion to strike the plain-
tiff’s complaint.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The plaintiff initially filed her complaint against the Board of Education
of the city of New Haven (board), Jones-Generette, and O’Brien. Following
the trial court’s granting of the defendants’ first motion to strike, the plaintiff
withdrew the action as to the board. All references to the defendants in
this opinion are to Jones-Generette and O’Brien.
2
The defendants filed a request to revise the original complaint on Decem-
ber 4, 2014, and the plaintiff then filed a revised complaint on December
5, 2014. Thereafter, the defendants filed a motion to strike the plaintiff’s
revised complaint on December 22, 2014, which the trial court granted on
February 23, 2015. The plaintiff then filed the operative complaint on April
13, 2015.
| {
"pile_set_name": "FreeLaw"
} |
423 F.Supp. 690 (1976)
Thomas E. HILL and Clyde Wade Sewell, Plaintiffs,
v.
W. J. ESTELLE, Jr., Director, Texas Department of Corrections, Defendant.
Civ. A. No. 76-H-1479.
United States District Court, S. D. Texas, Houston Division.
November 16, 1976.
Thomas E. Hill and Clyde Wade Sewell pro se.
MEMORANDUM AND ORDER
CARL O. BUE, Jr., District Judge.
I. INTRODUCTION
Plaintiffs, inmates filing in forma pauperis, seek declaratory and monetary relief under the Civil Rights Act for allegedly discriminatory treatment on the basis of sex. Plaintiffs assert that women prisoners at the Texas Department of Corrections (TDC) have occasional access to telephones and are granted wide discretion in personal standards of grooming. Male prisoners, they submit, do not have telephone privileges, are forced to shave and are compelled to obey a vague, capriciously applied, haircut rule. Plaintiffs claim that the aforementioned prison policies violate the United States Constitution and Texas law.
Because of a prior action filed in this Court and appealed to the United States Court of Appeals for the Fifth Circuit by *691 these two plaintiffs, the Court concludes for reasons hereinafter discussed that plaintiffs' present action is brought with malicious intent to abuse the processes of the Court. Accordingly, this action is dismissed pursuant to 28 U.S.C. § 1915(d) (1966).
II. PLAINTIFFS' "MALICIOUS" INTENT
A. Comparing the Instant Action with Civil Action 75-H-1858
Plaintiffs Hill and Sewell were both named plaintiffs in a prior lawsuit styled Hill, et al v. Estelle, Civil Action 75-H-1858, in which the Honorable Woodrow Seals granted the Defendant's Motion to Dismiss on January 30, 1976. The case was appealed to the United States Court of Appeals for the Fifth Circuit which affirmed the decision of Judge Seals on August 20, 1976.[1] Ten days later, on August 30, 1976, this present cause of action was submitted for filing by Hill and Sewell.[2] Even a cursory review and comparison of the complaint considered by Judge Seals and the Fifth Circuit Court of Appeals with the instant complaint is sufficient for one to ascertain that the two pleadings are virtually identical in substance and form.
Excluding jurisdictional statements and slight changes in the order of the clauses, the complaints, as submitted, read as follows:[3]
1. Civil Action 75-H-1858; The Old Complaint
a. Grooming
(1) Male inmates of TDC are required to wear their hair in a uniform, short. They are not allowed beards, mustaches and only the minimum of sideburns.
(2) Female inmates of TDC are allowed to chose the length, style and even color of their hair. They are given the choice of whether they shave, pluck or allow their facial and body hair to grow.
(3) Female inmates are allowed to decorate and personalize their cells. Male inmates must maintain bare walls and drab cells.
(4) Male inmates are stripped of their usual appearance, thus, suffering a personal defacement, depriving the inmate of his sense of identity and presence.
(5) TDC Rules and Regulations, policies and practices that compel male inmates to wear uniform haircuts and the minimum of *692 sideburns, are prison efforts that are dehumanization by forced conformity.
(6) The whole process of cutting male inmates' hair really amounts to a grisly flashback into an age when it was a recognized, accepted practice of penal institutions to disfigure prisoners in some fashion so as to mark him, at least for some period of time, to be held up to scorn by the public.
(7) This depersonalization is an attempt to break down the inmate to an acceptable level of subserviency.
(8) These restrictions are not supportable for reasons of prison sanitation, discipline or morale.
(9) The personal appearance of a person is his right to determine, even in prison, unless the officials can support a contrary regulation by compelling reasons.
(10) Unless prison officials can advance a reason for women prisoners, but not men, to wear long hair, this is a plain violation of the man's right to equal protection of the laws since arbitrary discrimination based on sex is unconstitutional. Fourteenth Amendment of the Constitution of the United States, Equal Protection.
2. Civil Action 76-H-1479; The Present Complaint
a. Grooming
(1) Male prisoners of TDC are required to wear their hair in a uniform manner, short, not exceeding an inch to an inch and a half on top, with only a minimum of sideburns. Beards and mustaches are forbidden.
(2) Female prisoners of TDC are allowed to choose the length, style and even color of their hair. They are given the choice of whether they shave, pluck or allow their facial hair to grow.
(3) Male prisoners on the Ellis Unit who are not working are only allowed to shower and change clothes on Monday, Wednesday, Friday and Sunday.
(4) There are no licensed barbers in TDC. Rule 3.1.4. Haircuts, is by action of the agents of Defendant Estelle, arbitrary and capriciously enforced, this same rule being utilized by the Ellis Unit Disciplinary Committee as a means of punishment. The rule is vague and provides no guidelines as to just what constitutes "good taste" or how "properly" a haircut is.
(5) Male prisoners who have their case on appeal are required to cut their hair short and shave their mustaches and beards even though they may be called back to court, released or retried at any time without an opportunity to regain their original appearance concerning their hair, beards, or mustaches.
(6) The convictions of all prisoners with their case on appeal to the Texas Court of Criminal Appeals are not final convictions until they are affirmed by that court, and to compel them to appear at hearings, or retrials with an altered appearance is a violation of the Fourteenth Amendment of the United States Constitution, when female prisoners are allowed to return to court with their appearance intact.
(7) Rules and Regulations of TDC, November 1, 1975, are as follows:
Rule 1.2.6. The Director's Authority is defined in Article 6166j, V.C.S. (Vernon's Civil Statutes).
Rule 1.3.3. Enforcement No warden, officer in charge, or other employee shall knowingly permit any subordinate or inmate nor shall he himself commit any act or engage in any conduct which would violate these rules and regulations. (remainder omitted by drawer)
Rule 3.1.1. Bathing Each inmate will be required to bathe at least once a day, providing facilities are available.
Rule 3.1.2. Clothes Each inmate will be required to make a change of clothing at least once a day.
Rule 3.1.3. Shaving Each inmate must be clean shaven.
Rule 3.1.4. Haircuts Each inmate will be required to have his hair cut properly, within good taste. Barber services are provided for all inmates, and they are expected to avail themselves of this service.
*693 (8) Texas state law requires that there be one (1) licensed barber for every three (3) unlicensed barbers operating.
3. Civil Action 75-H-1858; The Old Complaint
a. Telephone Privileges
(1) Female inmates are allowed phone calls home every sixty (60) days or so. This privilege is not allowed male inmates.
(2) To deny male prisoners phone calls home is a violation of the Equal Protection Clause of the Fourteenth Amendment.
(3) The treatment afforded male prisoners is cruel and unusual and a violation of the Eighth Amendment since it is discriminatory in violation of the Equal Protection Clause.
4. Civil Action 76-H-1479; The Present Complaint
a. Telephone Privileges
(1) Female prisoners are allowed phone calls home every sixty (60) days or so. This privilege is denied male prisoners.
(2) It is a violation of state law, Article 6166j, V.C.S., to enforce a rule or regulation that applies to male and female prisoners alike, to male prisoners only or to allow privileges to female prisoners and deny them to male prisoners.
(3) Section 11, Chapter 212, Acts of the 40th Legislature, Regular Session, 1927 (Article 6166j, Vernon's Civil Statutes), was amended (House Bill 989), and signed into law on October 28th, 1975, to read:
`Neither the Department of Corrections nor the director may discriminate against a prisoner on the basis of sex, race, color, creed, or national origin.'
(4) Male prisoners are denied adequate and equal contact and access to the community, their families and lawyers and courts when phone calls are allowed to female prisoners only and not to male prisoners.
(5) For the Defendant to enforce a rule or regulation that is in violation of Texas state law is a violation of the Equal Protection and Due Process Clauses of the Fourteenth Amendment.
5. Civil Action 75-H-1858; The Old Complaint
a. Relief Sought
The Plaintiffs have no plain, adequate or complete remedy at law to redress the wrongs described herein. Plaintiffs have been and will continue to be irreparably injured by the conduct of the Defendant unless this Court grants the declaratory relief which Plaintiffs seek.
WHEREFORE, Plaintiffs respectfully pray that this Court enter judgment granting Plaintiffs:
(1) A declaratory judgment that the Defendant's acts, policy and practices described herein violate Plaintiffs' rights under the United States Constitution.
(2) Compensatory damages in the amount of $25,000 to each Plaintiff from the Defendant.
(3) Punitive damages of $50,000 to each Plaintiff from the Defendant.
(4) Trial by jury on all issues triable by jury.
(5) Plaintiff's costs of this suit.
(6) Such other and further relief as the Court deems just.
6. Civil Action 76-H-1479; The Present Complaint
a. Relief Sought
The Plaintiffs have no plain, adequate or complete remedy at law to redress the wrongs described herein. Plaintiffs have been and will continue to be irreparably injured by the conduct of the Defendant unless this Court grants the declaratory relief which Plaintiffs seek.
WHEREFORE, Plaintiffs respectfully pray that this Court enter judgment granting Plaintiffs:
(1) A declaratory judgment that the Defendant's acts, policy and practices described herein violate Plaintiffs' rights under the United States Constitution;
*694 (2) Compensatory damages in the amount of $25,000 to Plaintiffs and each of them, from the Defendant;
(3) Punitive damages of $50,000 to Plaintiffs and each of them, from the Defendant;
(4) Plaintiffs' costs of this suit and reasonable attorney fees;
(5) Such other and further relief as the Plaintiffs are entitled to by law.
The present complaint is inflated with verbatim extractions from Texas law and the Rules of the Texas Department of Corrections. However, these superfluous additions cannot and do not camouflage the duplicitous and duplicative nature of the present complaint. Moreover, plaintiffs do not contend that these state laws are unconstitutional on their face or as applied, but rather that they are not obeyed. Such additional allegations, standing alone, do not state a cause of action under the Civil Rights Act.
Also included in the present action are references to access to courts, altered appearances at appellate proceedings, the use of the haircut regulation as punishment, and bathing frequency matters not raised in the earlier complaint. Plaintiffs have not alleged any specific inability to communicate with the courts as a result of the lack of telephone privileges. Indeed, when viewed in the light of their past multiple case filings as prisoners, it would strain the limits of credibility for them to so claim.[4] Rather, it appears that the reference to court access was inserted in response to the opinion of the Fifth Circuit Court of Appeals in the prior case. After stating that the courts should not "second-guess state prison officials on the length of prisoners' hair," the Court of Appeals went on to say, "The same is true of prison regulations pertaining to making phone calls (plaintiffs have not complained of inability to communicate with courts, counsel, or their families and friends) ...." Hill, supra, p. 215. Within ten (10) days of the Fifth Circuit opinion, plaintiffs submitted the present complaint alleging that "male prisoners are denied adequate and equal contact and access to the community, their families and lawyers and courts when phone calls are allowed to female prisoners only". The specious nature of this ploy is obvious.
Equally non-meritorious are the claims in the present case that appearing at post-conviction hearings in an "altered appearance" (clean shaven and with hair length under 1½ inches) and bathing only four times a week are violative of the Constitution. Plaintiffs' contention that use of the haircut rule as punishment entitles them to relief is also frivolous. Such a means of discipline falls clearly within the ambit of administrative discretion held by prison officials with which courts are loathe to interfere in the absence of extreme circumstances. Granville v. Hunt, 411 F.2d 9 (5th Cir. 1969).
More important than the lack of any merit to these additional legal claims is the fact that plaintiffs clearly have fashioned such claims in an effort to subject defendant to repetitious litigation. No new facts are pled which warrant re-examination of plaintiff's basic legal contentions raised in the prior complaint. Rather, plaintiffs have sought to adapt the present lawsuit to comport with the dicta contained in the Fifth Circuit opinion, all without factual basis.
B. Plaintiffs' Failure to Respond Truthfully to Questions in the Form Complaint
In recent years the federal courts have been swamped by a torrent of prisoner civil rights actions. The Southern District of Texas has been particularly hard-pressed because 12 of the 15 units of the Texas Department of Corrections are located within its jurisdiction. In this regard the Southern District has adopted new procedures and hired new personnel to deal exclusively with prisoner civil rights complaints. This Court also has adopted, with slight modification, the civil rights complaint forms approved in Watson v. Ault, *695 525 F.2d 886 (5th Cir. 1976). These forms have made it easier for the Court to assess the factual and legal bases of the claim. But the forms have an additional purpose. As explained in footnote 6 in Watson, supra, "The questionnaire will also aid in ferreting out those instances where prisoners abuse the processes of the court by multiple filings." (Citation omitted). The question in the form complaint specifically designed to expose abuse by multiple filers is as follows:
"Have you begun other lawsuits in state or federal court dealing with the same facts involved in this action or otherwise relating to your imprisonment?
Yes [] No [].
"If your answer [to the above] is yes, describe each lawsuit in the space below. (If there is more than one lawsuit, describe the additional lawsuits on another piece of paper, using the same outline.)"
Plaintiffs' response to this inquiry was "[NO], not these same facts concerning state law violations". Not only did plaintiffs fail to disclose the multitude of prior suits "relating to [their] imprisonment," but they attempted to evade the full thrust of the question. Their deceptive answer and obvious lack of full disclosure forced this Court to expend an extensive amount of time in research to ferret out the true relationship between these two lawsuits.
III. CONCLUSION
This disingenuous response, the timing of the second filing, the superficial changes in form between the first and second complaints and the substantially identical nature of the complaints lead to the inexorable conclusion that plaintiffs maliciously have filed a complaint as to previously litigated matters in order to abuse the judicial process with the resultant effect of burdening the Court's already heavy caseload and obstructing the application of justice in more meritorious causes.
Title 28 U.S.C. § 1915(d) provides in pertinent part, "The court may ... dismiss the case if ... satisfied that the action is frivolous or malicious". It is beyond cavil that frivolous and malicious suits are abuses of the judicial process and are not permissible under 28 U.S.C. § 1915. Urbano v. Sondern, 41 F.R.D. 355 (D.Conn. 1966), aff'd, 370 F.2d 13 (2d Cir.), cert. denied, 386 U.S. 1034, 87 S.Ct. 1485, 18 L.Ed.2d 596 (1966).
It also is within this Court's inherent power under 28 U.S.C. § 1651(a)[5] to enjoin litigants who are using the courts as a stage for their vendetta of harassment or abuse. Ruderer v. United States, 462 F.2d 897 (8th Cir. 1972), cert. denied 409 U.S. 1031, 93 S.Ct. 540, 34 L.Ed.2d 482 (1972); Ruderer v. Department of Justice, 389 F.Supp. 549 (D.C.N.Y.1974); Adams v. American Bar Association, 400 F.Supp. 219 (W.D.Pa.1975); Grismore v. Burger, 75-59 (D.C.Utah 1975); and Afflerbach v. American Bar Association, 401 F.Supp. 108 (D.Wyo.1975). In light of Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972), this Court approaches the use of such a sanction with great caution so as not to unduly restrict plaintiffs' right of access to the courts. However, this Court cannot stand by idly while plaintiffs file suit after repetitious suit. Rather than wait until plaintiffs file 18 identical suits before enjoining them, as occurred in Ex parte Tyler, 70 F.R.D. 456 (E.D.Mo.1975), this Court will act now to stop such abuse from recurring. The plaintiffs clearly possess no constitutional right to harass this Court and state officials with malicious lawsuits.
Therefore, it is hereby ordered that plaintiffs' action be dismissed as malicious under the purview of 28 U.S.C. § 1915(d); and it is further ordered that plaintiffs Thomas E. Hill and Clyde Wade Sewell be hereinafter enjoined from filing any action in federal court in an attempt to relitigate any question of law or fact raised in the District Court and in the Fifth Circuit *696 Court of Appeals, in Hill v. Estelle, supra, in regard to grooming standards and telephone privileges at the Texas Department of Corrections.
NOTES
[1] Hill v. Estelle, 537 F.2d 214 (5th Cir. 1976).
[2] In the last two years Hill and Sewell have been parties in the following suits filed in the Southern District of Texas. All but one were filed in forma pauperis. Hill was a plaintiff in 18 of the suits while Sewell was a plaintiff in 13.
Civil Action Style
75-H-1801 Hill v. Estelle
75-H-1828 Hill v. Anderson
75-H-1858 Hill v. Estelle
75-H-1859 Ellis Unit v. Cousins
75-H-2004 Lerma v. Estelle
75-H-2118 Hill v. Milton
75-H-2119 Hill v. Schmidt
75-H-2120 Hill v. Estelle
75-H-2200 Sewell v. Heard
76-H-77 Adams v. Estelle
76-H-83 Sewell v. Hardy
76-H-199 Sewell v. Estelle
76-H-267 Hill v. Estelle
76-H-373 Hill v. Rushing
76-H-439 Hill v. Estelle
76-H-497 Hill v. Estelle
76-H-567 Lamar v. Estelle
76-H-568 Lerma v. Cousins
76-H-574 Lamar v. Estelle
76-H-576 Franks v. Heard
76-H-607 Hill v. Estelle
76-H-608 Hill v. Estelle
76-H-609 Hill v. Estelle
76-H-821 Hill v. Estelle
76-H-1026 Sewell v. Baker
76-H-1137 Gooden v. Bass
76-H-1342 Carter v. Estelle
[3] It should be noted that the Court has made some spelling corrections and that the numbers of the paragraphs are not those of the plaintiffs. Instead, the Court has unscrambled the revised order of the allegations contained in the present suit to show the parallel nature and essentially identical content of the pleadings filed in the two lawsuits. However, in order to preserve the substance of the complaints, the Court has made no attempt to correct faulty sentence structure or grammatical errors.
[4] See footnote 2, supra.
[5] "The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their jurisdictions and agreeable to the usages and principles of law." 28 U.S.C. § 1651(a) (1966).
| {
"pile_set_name": "FreeLaw"
} |
95 P.3d 605 (2004)
105 Hawai'i 174
STATE of Hawai'i, Plaintiff-Appellee
v.
Christopher KELIIHELEUA, Defendant-Appellant.
No. 26075.
Supreme Court of Hawai'i.
August 5, 2004.
As Corrected August 16, 2004.
*606 Daisy Lynn B. Hartsfield, Deputy Public Defender, for defendant-appellant.
Mark Yuen, Deputy Prosecuting Attorney, for plaintiff-appellee.
MOON, C.J., LEVINSON, NAKAYAMA, ACOBA, and DUFFY, JJ.
Opinion of the Court by ACOBA, J.
We hold, in this appeal by Defendant-Appellant Christopher Keliiheleua (Defendant) in Cr. No. 02-1-2062, from an April 14, 2003 order of the circuit court of the first circuit[1] (the court), that the court did not err in denying Defendant's motion to dismiss the charge of negligent injury in the first degree, Hawai'i Revised Statutes (HRS) § 707-705 (1993),[2] for preindictment delay (motion to dismiss). We so hold because Defendant's claimed "lost ... opportunity to consolidate" Cr. No. 02-1-2062 with Cr. No. 01-1-2131, a related case of insurance fraud and theft (fraud case), "for [the purpose of] mov[ing] for ... deferral [of acceptance of pleas] ... in both cases" allegedly resulting from prosecutorial delay does not implicate a defense or the ability to present a defense at a trial on the offense charged.
We also hold that, contrary to Defendant's contention, HRS §§ 701-109(2) (1993) and 701-111(1)(b) (1993) do not require dismissal of the negligent injury case for failure to try *607 it with the fraud case. We conclude the two cases did not arise from the same episode because the negligent injury case was not closely related to the fraud case in time, place, and circumstances. See State v. Carroll, 63 Haw. 345, 350, 627 P.2d 776, 780 (1981).
For the foregoing reasons, we affirm the court's July 7, 2003 judgment.
I.
On the morning of November 18, 2000, Defendant fell asleep while driving his van westbound on the H-1 freeway. At 4:49 a.m., Defendant's van drifted across three lanes of freeway and rear-ended a parked car, injuring both his friend, Kameron Kealoha (Kealoha), a front seat passenger in the van, and Lawrence Smith (Smith), the driver of the parked car. Kealoha suffered a concussion, injury to his aorta, severe facial lacerations, and cranial contusions from the accident. He was taken to the hospital by ambulance in critical condition.
Defendant lacked insurance coverage when he caused the accident, but obtained an insurance policy later that same day. After obtaining the policy, he falsely represented the date and time of the accident as occurring subsequent to the initiation of the policy.
Honolulu Police Department (HPD) Officer Carl Medeiros (Medeiros) was immediately assigned to investigate the November 18, 2000 accident. Medeiros had four serious cases (not counting follow-ups) and at least twenty to twenty-five non-serious cases assigned to him, when he received the assignment.
Medeiros testified that on November 18, 2000, the police took a HPD Form 252 statement from Defendant who admitted that he fell asleep at the wheel and caused the accident. On the same day, HPD officer Greg Lopez completed a motor vehicle accident report diagramming the scene of the accident. In addition, police officers were sent to the hospital to obtain statements from Kealoha's treating physician.
Medeiros also went to the hospital on November 18, 2000. However, he had difficulty contacting Kealoha, which he claimed delayed his ability to "confer" the negligent injury case with the prosecutor's office. When Medeiros first contacted Kealoha three days after the accident, Kealoha could not speak. Therefore, Medeiros left a HPD-13 form with Kealoha's wife "so she could sign and have the doctor complete it" before Kealoha was discharged. According to Medeiros, the facts were not clear and he could not decipher any information from the form he received.
On November 25, 2000, Kealoha was released from the hospital. Medeiros testified that he assumed he had all the necessary information to locate Kealoha, but "all of that was wrong." After Medeiros eventually located Kealoha's mother, he still had difficulty contacting Kealoha. Medeiros "finally" convinced Kealoha's mother that he needed to see Kealoha, and Kealoha's wife "finally" contacted him. Medeiros did not obtain a written statement from Kealoha or the HPD Form 252 regarding Kealoha's injuries until June 24, 2001. Based on the statement of Kealoha's surgeon, the negligent injury case was initially classified as a second degree offense.
Meanwhile, in July or August of 2001, the Insurance Fraud Division of the State of Hawai'i Department of Commerce and Consumer Affairs retained Bradley R. Pulice (Pulice) as a Special Attorney General. Pulice testified that he handled insurance fraud cases and, in addition, anything that flowed from theft. Pulice indicated he did not know about a pending criminal investigation for the negligent injury case when he received his assignment. He further testified that he did not think that the police reports reflected a contemplated negligent injury charge.
Pulice noted that he would not have handled the negligent injury case, even if he knew of it, because the two cases occurred in different time frames. Pulice explained that he did not consider referring a negligent injury case to the prosecutor's office or charging Defendant since he only dealt with causes of action arising subsequent to the accident. Pulice mentioned that his office could consider charging both the insurance fraud and negligent injury aspects if it appeared *608 they causally flowed from insurance fraud activities.
Pulice's investigation resulted in an indictment in Cr. No. 01-1-2131, whereby Plaintiff-Appellee State of Hawai'i (the prosecution) charged Defendant in Count I with insurance fraud, HRS § 431:10C-307.7(a)(2), and in Count II with attempted theft in the first degree, HRS §§ 705-500 and 708-830.5(1)(a). Count I alleged that on November 18, 2000 through December 7, 2000, Defendant knowingly "presented a false claim for the payment of loss to Progressive Insurance Companies, Inc. [(Progressive)] with intent to obtain benefits or recovery or compensation for benefits for services provided, to wit, insurance proceeds, the value of which exceeds [t]wenty-[t]housand [d]ollars ($20,000)" in the City and County of Honolulu, State of Hawai'i. Count II alleged that on November 18, 2000 through December 7, 2000, Defendant "intentionally engage[d] in conduct, which, under the circumstances as he believed them to be, constituted a substantial step in a course of conduct intended to culminate in his commission of the crime of [t]heft in the [f]irst [d]egree, by attempting to obtain or exert control over the property of [Progressive] the value of which exceeded [t]wenty [t]housand [d]ollars ($20,000), by deception, with intent to deprive [Progressive] of the property" in the City and County of Honolulu, State of Hawai'i.
On December 6, 2001, Defendant pled no contest to insurance fraud and the amended charge of attempted theft in the second degree and moved for deferred acceptance of his plea pursuant to HRS § 853-1 (1993 & Supp.2003).[3] On February 25, 2002, the court granted Defendant's motion to defer his no contest plea.
On March 18, 2002, following the completion of his initial investigation in the negligent injury case, Medeiros met with the conferral deputy prosecuting attorney, Lahoma Fernandez-Nakata (Fernandez-Nakata). Fernandez-Nakata testified that at the time of the conferral, she did not have any prior knowledge of the case. She did not immediately accept prosecution and requested follow-up work including additional HPD-13 doctor forms and a second statement from Kealoha. It was not until the case was conferred that it was re-classified to the more serious first degree offense. A second statement was taken from Kealoha on March 25, 2002.
After completing the follow-up investigation, Medeiros re-conferred with Fernandez-Nakata on April 12, 2002. Fernandez-Nakata decided not to prosecute Defendant for Smith's injuries because the HPD-13 doctor form necessary to confirm the injuries was not completed and Smith was deployed by the Marines at the time. However, Fernandez-Nakata accepted the completed HPD-13 doctor forms involving Kealoha's injuries. After waiting for Medeiros to complete additional reports, the prosecutor's office formally initiated prosecution on June 17, 2002 in the negligent injury case.
On July 17, 2002, the prosecutor's office assigned the negligent injury case to deputy prosecuting attorney Susan Won. According to Fernandez-Nakata, Won briefed the case in August 2002 and then waited for an open O'ahu Grand Jury date. Won presented the case to the O'ahu Grand Jury on September 19, 2002. The grand jury charged that Defendant caused serious bodily injury to Kealoha, by the operation of a vehicle in a negligent manner, thereby committing the offense of negligent injury in the first degree, HRS § 707-705.
*609 On December 26, 2002, Defendant filed a "Motion to Dismiss Indictment for Pre-Indictment Delay." Defendant claimed that the delay violated his right to due process of law under Article I, Sections 5, 8, and 14 of the Hawai'i State Constitution and the 5th and 14th Amendments of the United States Constitution.
Defendant's counsel calculated the length of the delay to be 670 days. Counsel's declaration stated that if the negligent injury case "had been charged in a timely manner, either at the same time or at least before the sentencing date of February 25, 2002 in [the fraud case], ... [D]efendant could have incorporated both cases for sentencing/disposition at the same time and moved for a deferred acceptance of his pleas on all cases." As a result, counsel argued that Defendant, "statutorily precluded from receiving a deferred acceptance plea ... was substantially prejudiced by the lengthy delay in indicting this case."
The prosecutor's office submitted its memorandum in opposition to Defendant's motion to dismiss on January 21, 2003. The prosecution argued that the statute of limitations had not lapsed, separate prosecutions were warranted under HRS § 701-109(2), the "lost deferral opportunity" did not implicate the right to a fair trial and was speculative, and the delay did not rise to a level requiring dismissal.
On February 10, 2003, after hearing testimony from witnesses and considering the arguments, the court denied the motion to dismiss. The court explained that the delay in indictment was justified due to the nature of the injuries and the difficulty in obtaining statements from the witnesses. The court noted that the possibility of a deferral did not implicate the right to a fair trial.
Subsequently, on April 14, 2003, the court filed its Findings of Fact, Conclusions of Law and Order Denying Motion to Dismiss Indictment for Pre-Indictment Delay ("order").
On May 5, 2003, Defendant entered a conditional plea of no-contest and reserved the right to appeal the order. On July 7, 2003, Defendant was sentenced to five years' probation, with terms and conditions, and ordered to pay restitution.
On September 5, 2003, Defendant filed a notice of appeal from the July 7, 2003 judgment and sentence.
II.
On appeal, Defendant contends that (1) his due process rights were substantially prejudiced by the prosecution's unreasonable and avoidable delay and (2) the negligent injury case should have been dismissed pursuant to HRS §§ 701-109(2) and 701-111(1)(b) because the negligent injury charge and fraud charge should have been tried together. Defendant requests that this court reverse the order denying its motion to dismiss or, in the alternative, vacate the order and remand the case for further proceedings.
The prosecution in its answering brief argues that the court did not err in denying Defendant's motion to dismiss because Defendant failed to meet his burden of demonstrating actual substantial prejudice, the prosecution's delay was reasonable, and HRS § 701-109(2) did not apply. The prosecution requests that this court affirm the judgment.
III.
Both the "clearly erroneous" and "right/wrong" tests must be employed in reviewing the circuit court's denial of a motion to dismiss for preindictment delay. State v. Martinez, 101 Hawai'i 332, 339, 68 P.3d 606, 613 (2003). "A trial court's [findings of fact] are reviewed under the `clearly erroneous' standard." Dan v. State, 76 Hawai'i 423, 428, 879 P.2d 528, 533 (1994). "A finding of fact is clearly erroneous when (1) the record lacks substantial evidence to support the finding, or (2) despite substantial evidence in support of the finding, the appellate court is nonetheless left with a definite and firm conviction that a mistake has been made." State v. Okumura, 78 Hawai'i 383, 392, 894 P.2d 80, 89 (1995) (citations omitted).
A trial court's conclusions of law are reviewed under the "right/wrong" standard. State v. Furutani, 76 Hawai'i 172, 180, 873 P.2d 51, 59 (1994). "A [conclusion of law] is not binding upon an appellate court and is *610 freely reviewable for its correctness." Id. This "court examine[s] the facts and answer[s] the question without being required to give any weight to the trial court's answer to it." Island Ins. Co. v. Perry, 94 Hawai'i 498, 501, 17 P.3d 847, 850 (App.2000) (internal quotation marks and citation omitted) (brackets in original).
IV.
The court did not err in denying Defendant's motion to dismiss because Defendant failed to establish that he suffered actual substantial prejudice to his right to a fair trial. "[T]he applicable statute of limitations ... is ... the primary guarantee against bringing overly stale criminal charges." United States v. Marion, 404 U.S. 307, 322, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971) (quoting United States v. Ewell, 383 U.S. 116, 122, 86 S.Ct. 773, 15 L.Ed.2d 627 (1966)).[4] However, in State v. Carvalho, 79 Hawai'i 165, 880 P.2d 217 (App.1994), it was noted that the United States Supreme Court first recognized in Marion that "the statute of limitations does not fully define the [defendant's] rights" to a fair trial and that "events occurring prior to [the formal criminal charge]" may "cause substantial prejudice to [such] rights[.]" Id. at 167, 880 P.2d at 219 (quoting Marion, 404 U.S. at 324, 92 S.Ct. 455).[5] Therefore, the Carvalho court determined that "the due process inquiry must consider the reasons for the delay [in prosecution] as well as the prejudice to the accused." Id. (brackets in original) (quoting United States v. Lovasco, 431 U.S. 783, 790, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977)).
Accordingly, "[w]hen a defendant alleges a violation of due process based on preindictment delay, the court must employ a balancing test, considering actual substantial prejudice to the defendant against the reasons asserted for the delay." State v. Higa, 102 Hawai'i 183, 187, 74 P.3d 6, 10 (2003) (citing State v. Crail, 97 Hawai'i 170, 178-79, 35 P.3d 197, 205-06 (2001); State v. Levi, 67 Haw. 247, 249, 686 P.2d 9, 10-11 (1984); State v. English, 61 Haw. 12, 17-18, 594 P.2d 1069, 1073-74 (1978)). However, "[i]f a defendant fails to show actual substantial prejudice, the inquiry ends and the reasons for the delay need not be addressed." Id. (citing Crail, 97 Hawai'i at 180, 35 P.3d at 207; Carvalho, 79 Hawai'i at 170, 880 P.2d at 222).
Defendant argues that he suffered actual substantial prejudice because if there were no delay, he "could have consolidated the cases for sentencing purposes and would have been able to move for a deferral [of acceptance of guilty pleas] on all the offenses in both cases." In Higa, it was recognized that the U.S. Supreme Court in Marion and Lovasco"contemplated a due process claim to include challenges to a defendant's ability to present a defense[,]" but did not define the precise circumstances in which preindictment delay would require the dismissal of charges. Higa, 102 Hawai'i at 188, 74 P.3d at 11 (citing Marion, 404 U.S. at 320, 324, 92 S.Ct. 455; Lovasco, 431 U.S. at 785, 97 S.Ct. 2044). However, Higa held that "lost opportunities for concurrent sentencing, parole, and loss of parental rights, as asserted [t]herein, do not affect a defendant's ability to present an effective defense, and thus, do not constitute actual substantial prejudice to a defendant's due process right to a fair trial." Id. at 189, 74 P.3d at 12.
Defendant maintains that the "Higa court did not consider how lost opportunity related to sentencing was an actual prejudice itself[.]" He attempts to distinguish his case from Higa on the grounds that (1) the indictments in Higa"were based on unrelated charges whereas in this case, the indictments are related[,]" (2) the defendant in Higa was *611 aware of pending charges, whereas Defendant was not aware of any pending charges when sentenced for the fraud case, (3) the delay adversely affected Defendant's trial strategy and possible defenses, and (4) the "delay prejudiced [his] ability to make an intelligent and informed decision regarding whether to waive his rights to trial and to contest" the charges in the fraud case.
His claims (1) and (2) relate to his argument concerning HRS § 701-109(2) discussed infra. With respect to (3) and (4), insofar as these considerations are related to the absence of concurrent sentencing, they are foreclosed by Higa. In the absence of specific facts, claims (3) and (4) amount essentially to the complaint that had the cases been subject to consolidation, Defendant would have been able to move for a deferral of a plea in both cases. In this regard, we note that a deferred acceptance of guilty plea or a deferred acceptance of no contest plea is an authorized disposition afforded to a defendant by the court in certain defined instances "to enable a defendant to retain a `record free of a criminal conviction' by deferring a guilty [or no contest] plea for a designated period and imposing special conditions which the defendant was to successfully complete." State v. Putnam, 93 Hawai'i 362, 368, 3 P.3d 1239, 1245 (2000) (quoting 1976 Haw. Sess. L. Act 154, § 2, at 279). Such a plea is not a defense or involved in the presentation of a defense. As HRS § 701-115(1) states, "[a] defense is a fact or set of facts which negatives penal liability."
Also, as Defendant acknowledges, there is no assurance that a defendant will be granted a deferral of his or her guilty or no contest plea inasmuch as the court has discretion as to whether to grant one. In Carvalho, it was recognized that "in a claim of pre-indictment delay, `the proof must be definite and not speculative in order to establish prejudice.'" 79 Hawai'i at 169, 880 P.2d at 220 (quoting State v. Broughton, 156 Ariz. 394, 398, 752 P.2d 483, 487 (1988)). Hence, the "possibility of a deferral" does not amount to definite proof of prejudice.
Finally, while the possibility of plea bargaining may be part of the calculus in determining the overall posture of a defendant in any particular case, this consideration, like those posed in Higa, is not specifically implicated in the presentation of a defense to a charged offense at a trial. In sum, Defendant's inability to request deferral of his plea as to the negligent injury charge did not affect his ability to present a defense at a trial of that charge and, therefore, did not substantially prejudice his right to a fair trial.[6]
V.
The court did not err by denying Defendant's motion to dismiss because HRS §§ 701-109(2) does not apply. HRS § 701-109 in pertinent part provides that "a defendant shall not be subject to separate trials for multiple offenses based on the same conduct or arising from the same episode, if such offenses are known to the appropriate prosecuting officer at the time of the commencement of the first trial and are within the jurisdiction of a single court." HRS § 701-109(2) (emphasis added). Under HRS § 701-111(1)(b),[7] the prosecution is prohibited *612 from prosecuting a defendant for any offense which should have been joined in a prior trial under HRS § 701-109(2).[8] Defendant argues that the court erred in denying his motion to dismiss because (1) the offenses in the fraud case and negligent injury case arose from the same episode and (2) the prosecuting officer was aware of the possibility of other charges.
Contrary to Defendant's argument, the offenses in the fraud case and negligent injury case did not arise from the same episode. One of the purposes of HRS § 701-109(2) is "to prevent the State from harassing a defendant with successive prosecutions where the State is dissatisfied with the punishment previously ordered or where the State has failed to convict the defendant." State v. Servantes, 72 Haw. 35, 38, 804 P.2d 1347, 1348 (1991). However, there is no evidence in the record that the prosecution attempted to harass Defendant by prosecuting the subsequent negligent injury case. See State v. Solomon, 61 Haw. 127, 134, 596 P.2d 779, 784 (1979) ("This is not a case of a prosecutor harassing a defendant with multiple prosecution for closely related offenses because of dissatisfaction with the punishment previously meted out or because of previous failure to convict.")
"HRS § 701-109(2) [does] reflect[ ] a policy that all charges that arise under one episode be consolidated in one trial so that a defendant need not face the expense and uncertainties of multiple trials based on essentially the same episode." Servantes, 72 Haw. at 38, 804 P.2d at 1348 (citing Commentary on HRS § 701-109). In formulating HRS § 701-109(2), it can be inferred that the legislature "did not intend a determination of a single criminal `episode' to be based solely upon a defendant's singular criminal objective or common purpose or plan." Carroll, 63 Haw. at 350-51, 627 P.2d at 780 (citing commentary accompanying Model Penal Code § 1.07 (Proposed Official Draft, 1962)).
The relevant "test for determining the singleness of a criminal episode should be based on whether the alleged conduct was so closely related in time, place and circumstances that a complete account of one charge cannot be related without referring to details of the other charge." Servantes, 72 Haw. at 38-39, 804 P.2d at 1349 (quoting Carroll, 63 Haw. at 351, 627 P.2d at 780). Applying this test, Defendant's contention that the criminal offenses arose from the same episode must be rejected.
Defendant argues that the negligent injury case is so closely related in time (everything occurred on the same day), place (City and County of Honolulu, State of Hawai'i), and circumstances (the accident was caused by Defendant, Defendant knew that he did not have insurance, Defendant made a false insurance claim related to the accident) that a complete account of one charge (insurance fraud) cannot be related without referring to details of the other (negligent injury). "[P]roximity in time, place, and circumstances of the offenses will necessarily enter into the policy considerations underlying HRS § 701-109(2)." Carroll, 63 Haw. at 351, 627 P.2d at 780. However, Defendant's argument fails for several reasons.
First, although the motor vehicle accident and fraudulent insurance claim occurred on the same day, they did not occur at the same time. Defendant committed insurance fraud and attempted theft from the insurance company subsequent to the accident that caused injury to Kealoha.
Second, although the record does not so indicate, the places where Defendant committed the offenses were presumably different. Furthermore, defining "place" as broadly as the entire City and County of Honolulu would unduly hamper the administration and application of HRS § 701-109(2).
*613 Third, the circumstances of the cases were not similar. " Where the offenses occur at the same time and place and under the same circumstances, it is likely that the facts and issues involved in the charges will be similar." Carroll, 63 Haw. at 350, 627 P.2d at 780. However, in this case, the facts and issues involved in the charges (namely, the statutory requirements of the alleged offenses) are dissimilar.[9]
Because the criminal offenses in question are not closely related in time, place and circumstances, they did not arise from the same "episode." Consequently, HRS §§ 701-109(2) does not apply to this case.[10]
Defendant attempts to draw an analogy between his situation and Servantes. In Servantes, this court concluded that "the State was barred under [HRS] § 701-109(2) from prosecuting [the defendant] for felony offenses by his conviction on the misdemeanor marijuana possession charge." 72 Haw. at 39, 804 P.2d at 1349. In that case, police officers had observed a passenger in the defendant's car smoking a marijuana cigarette. Id. at 36, 804 P.2d at 1348. When the passenger exited the car, the officer noticed a bag of marijuana next to the defendant's foot. Id. The bag was seized and the defendant and his passenger were arrested for promoting a detrimental drug in the third degree, a misdemeanor. Id.
The defendant's car was towed to the police station. Id. at 37, 804 P.2d at 1348. Four days later the police executed a search warrant for the car and seized cocaine and drug paraphernalia from it. Id. The defendant was then charged with promoting a dangerous drug in the third degree and possession with intent to use drug paraphernalia, both Class C felonies. Id.
In reversing the circuit court's determination that the misdemeanor and felony charges arose from separate episodes, this court reasoned that the "police had probable cause at the time of [the defendant's] arrest on the [misdemeanor] marijuana offense to suspect [the defendant] of possession of additional illegal drugs" and that at the motion to suppress in the felony case, reference must be made to the circumstances giving rise to the misdemeanor case. Id. at 39, 804 P.2d at 1349. Thus, this court concluded "[a] fortiori, the felony charges cannot be tried without mention of the misdemeanor offense." Id.
This case is distinguishable from Servantes. Here, there was no reason to suspect that subsequent to causing the motor vehicle accident, Defendant would obtain an insurance policy and then file a fraudulent insurance claim. Furthermore, unlike the offenses involved in Servantes, the negligent injury charge can be tried without mention of the fraud case. Therefore, Servantes is not analogous to the case at bar.
VI.
For the reasons stated above, the court's July 7, 2003 judgment is affirmed.
NOTES
[1] The Honorable Karen S.S. Ahn presided.
[2] HRS § 707-705(1) states that "a person is guilty of the offense of negligent injury in the first degree if that person causes serious bodily injury to another person by the operation of a motor vehicle in a negligent manner."
[3] HRS § 853-1 (1993) states in relevant part:
(a) Upon proper motion as provided by this chapter:
(1) When a defendant voluntarily pleads guilty or nolo contendere, prior to commencement of trial, to a felony, misdemeanor, or petty misdemeanor;
(2) It appears to the court that the defendant is not likely again to engage in a criminal course of conduct; and
(3) The ends of justice and the welfare of society do not require that the defendant shall presently suffer the penalty imposed by law,
the court, without accepting the plea of nolo contendere or entering a judgment of guilty and with the consent of the defendant and after considering the recommendations, if any, of the prosecutor, may defer further proceedings.
[4] Statutes of limitations "represent legislative assessments of relative interests of the State and the defendant in administering and receiving justice; they are made for the repose of society and the protection of those who may [during the limitation]... have lost their means of defence." Marion, 404 U.S. at 322, 92 S.Ct. 455 (emphasis added) (quoting Public Schools v. Walker, 76 U.S. (9 Wall.) 282, 288, 19 L.Ed. 576 (1869)).
[5] We have indicated that "[w]hether [a d]efendant relies upon a federal or state due process claim does not significantly alter our analysis because our view of preindictment delay as an aspect of the right of due process is substantially similar to that applied under the United States Constitution." State v. Crail, 97 Hawai'i 170, 173 n. 4, 35 P.3d 197, 200 n. 4 (2001) (citation omitted).
[6] Since Defendant failed to establish he suffered actual substantial prejudice to his right to a fair trial, there is no imperative to consider the reasons for the prosecutorial delay. Carvalho, 79 Hawai'i at 170, 880 P.2d at 222; see Higa, 102 Hawai'i at 187, 74 P.3d at 10; Crail, 97 Hawai'i at 180, 35 P.3d at 207. We observe that the record indicates that the prosecution's reasons for preindictment delay were reasonable in light of the circumstances of the case. First, Medeiros had difficulty contacting Kealoha, the complainant, in addition to other difficulties mentioned supra. Medeiros was assigned four serious cases (not counting follow-ups) and at least twenty to twenty-five non-serious cases, when he received the negligent injury case. Second, once Medeiros conferred the case with the prosecutor's office, the prosecution acted promptly.
[7] HRS § 701-111(1)(b) in relevant part provides:
When prosecution is barred by former prosecution for a different offense. Although a prosecution is for a violation of a different statutory provision or is based on different facts, it is barred by a former prosecution under any of the following circumstances:
(1) The former prosecution resulted in an acquittal which has not subsequently been set aside or in a conviction as defined in section 701-110(3) and the subsequent prosecution is for:
....
(b) Any offense for which the defendant should have been tried on the first prosecution under section 701-109 unless the court ordered a separate trial of the offense[.]
[8] "HRS §§ 701-111 and 701-109(2) should generally be read in conjunction with each other, see Commentary on HRS § 701-111, for both statutory provisions may be regarded as effectuating `the policy of preserving the defendant from numerous, and vexatious prosecutions.'" State v. Aiu, 59 Haw. 92, 98, 576 P.2d 1044, 1049 (1978) (quoting Commentary on HRS § 701-111).
[9] Examples of crimes arising from the same criminal episode include "`the simultaneous robbery of seven individuals, the killing of several people with successive shots from a gun, the successive burning of three pieces of property, or such contemporaneous and related crimes as burglary and larceny, or kidnaping and robbery.'" State v. White, 92 Hawai'i 192, 199, 990 P.2d 90, 97 (1999) (quoting II American Bar Association Standards for Criminal Justice, § 12-2.2, at 12-21 (2d ed. Supp.1986)).
[10] Inasmuch as we conclude the same episode requirement of HRS § 701-109(2) was not satisfied, we need not consider Defendant's additional argument that Pulice was aware of the possibility of a negligent injury charge.
| {
"pile_set_name": "FreeLaw"
} |
545 F.2d 764
UNITED STATES of America, Appellee,v.William J. WILBUR et al., Defendants, Appellants.
No. 76-1097.
United States Court of Appeals,First Circuit.
Dec. 16, 1976.
Francis J. Frasier, Exeter, N.H., with whom Shute, Engel & Frasier, P.A., Exeter, N.H., was on brief, for appellants.
Robert A. Schwartz, Asst. U.S. Atty., Concord, N.H., with whom William J. Deachman, U.S. Atty., Concord, N.H., was on brief, for appellee.
Before COFFIN, Chief Judge, CAMPBELL, Circuit Judge, and GIGNOUX, District Judge.*
LEVIN H. CAMPBELL, Circuit Judge.
1
Appellants William J. Wilbur and his wife, Donna L. Wilbur, appeal from their convictions on eight counts of violating provisions of the Gun Control Act of 1968, 18 U.S.C. § 921 et seq. The counts were from an eleven-count indictment against the Wilburs and Valley Trading Post, Inc., a federally licensed firearms dealer, of which they were president and treasurer. The court dismissed the charges against Valley, finding that the company did not act independently of the Wilburs. As for the Wilburs, Counts I, II and III charged them with unlawful possession, transfer, and sale of a machine gun to an undercover federal agent, and Counts IV-XI charged them with recordkeeping violations arising out of the sale of additional firearms to the same agent on three separate occasions in 1975. At the suggestion of the Government, the court dismissed Counts II and III as repetitive of the unlawful possession charge contained in Count I. The jury returned a verdict of not guilty on Count I but found the Wilburs guilty of the recordkeeping violations under Counts IV-XI.
2
Appellants raise four claims of error on appeal: (1) the district court erred in admitting the record books of Valley Trading Post seized during an inspection search by federal agents; (2) the district court erred in not granting a judgment of acquittal on the defense of entrapment; (3) the defense was unreasonably curtailed in final argument; and (4) the Government was permitted unfair argument. We find no merit in any of these assertions.
3
At trial appellants moved to suppress records of the firearms transactions and of the receipt and disposition of firearms of Valley Trading Post, which had been seized by agents of the Bureau of Alcohol, Tobacco and Firearms (ATF) during a compliance check on November 12, 1975. The records were introduced by the Government to prove that the required Firearm Transaction Record, Form 4473, was not filled out by Mr. or Mrs. Wilbur on any of three occasions, subsequent to the alleged machine gun transaction, when they sold guns to an undercover agent, and that those sales were also omitted from Valley's record books in violation of 18 U.S.C. § 922(m). See id. § 923(g); 27 C.F.R. §§ 178.24 & .25 (1976). In moving to suppress, appellants urged that the fourth amendment prohibited the ATF agents from seizing the records without a search warrant. The Government, in response, pointed to the agents' statutory authority to enter the premises "for the purpose of inspecting or examining (1) any records or documents required to be kept . . . and (2) any firearms or ammunition kept or stored . . . ." 18 U.S.C.A. § 923(g); see 27 C.F.R. 178.23 (1976). The district court refused to suppress, we think properly, on the authority of United States v. Biswell,406 U.S. 311, 92 S.Ct. 1593, 32 L.Ed.2d 87 (1972), which upheld the seizure of illegal weapons found during a compliance check. The compliance check here had revealed that the Wilburs had for sale two or three dozen guns which had not been entered on the books, and the Government, being properly on the premises to inspect records, documents, firearms, and ammunition, was entitled to seize the incriminating records. See Warden v. Hayden, 387 U.S. 294, 300-10, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967).
4
Appellants try to distinguish Biswell on the ground that the instant compliance search was conducted after the indictment was returned and while an arrest warrant for Mr. Wilbur and a summons for Mrs. Wilbur were outstanding. The timing of the compliance check is said to show that the agents relied on their statutory authority not for the purpose of "inspecting or examining" records and firearms to determine whether Valley Trading Post was in compliance with the recordkeeping requirements but rather for the purpose of seizing evidence which they knew would be helpful in prosecuting the Wilburs. We do not find this distinction persuasive. The Supreme Court in Biswell approved warrantless inspection searches conducted under 18 U.S.C. § 923(g) in broad terms:
5
". . . if inspection is to be effective and serve as a credible deterrent, unannounced, even frequent, inspections are essential. In this context, the prerequisite of a warrant could easily frustrate inspection; and if the necessary flexibility as to time, scope, and frequency is to be preserved, the protections afforded by a warrant would be negligible."
6
United States v. Biswell, supra, 406 U.S. at 316, 92 S.Ct. at 1596. See United States v. Petrucci, 486 F.2d 329 (9th Cir. 1973), cert. denied, 416 U.S. 937, 94 S.Ct. 1937, 40 L.Ed.2d 287 (1974). The Court held additionally that compliance checks do not intrude on a dealer's "reasonable expectation of privacy": "When a dealer chooses to engage in this pervasively regulated business and to accept a federal license, he does so with the knowledge that his business records, firearms, and ammunition will be subject to effective inspection." United States v. Biswell, supra, 406 U.S. at 316, 92 S.Ct. at 1596. We see little room in the Supreme Court's reasoning for distinguishing between pre- and post-indictment inspections. Deterrence can be served by inspection at either time, and a licensee would have no reason to expect that his records, firearms and ammunition would cease to be subject to "effective inspection" merely because he was indicted indeed, the converse would seem true. A rule allowing federal agents to conduct a warrantless search of a dealer's premises only until their suspicions were aroused or, as here, the facts established probable cause, would make little sense.
7
Appellants claim that the evidence supporting their entrapment defense was so overwhelming that the district court's refusal to acquit on this ground was error and that the jury's implicit rejection of the defense was contrary to the evidence.* The Wilburs point to evidence that they never had any previous trouble with ATF and were themselves upright and law-abiding; and they argue in their brief that the undercover agent induced them to enter into the improper transactions.
8
There are several flaws in this approach. At trial Mr. Wilbur testified that he refused to sell the agent guns owned by Valley but then offered the agent other weapons, saying: "I do have some of my own guns, my own personal collection I am going to sell . . . ." This version, reiterated at final argument, is not easily reconciled with the contention that Wilbur was entrapped into committing an illegal act by the inducement of an overreaching agent.
9
More fundamentally, the entrapment argument ignores the Supreme Court's recent observation "that entrapment is a relatively limited defense", United States v. Russell, 411 U.S. 423, 435, 93 S.Ct. 1637, 1644, 36 L.Ed.2d 366 (1973), which presents essentially a jury question on whether the defendant was "predisposed" to commit the offense. Id. at 433, 93 S.Ct. 1637; Sherman v. United States, 356 U.S. 369, 372, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958); United States v. Principe, 482 F.2d 60 (1st Cir. 1973). There was ample evidence for the jury to find predisposition. The Government's informer, himself a firearms dealer, testified that several months before the first purported transaction between Mr. Wilbur and the undercover agent, which formed the basis of Count I, Mr. Wilbur mentioned to him that he could get machine guns from a contact in New York City and offered them for sale. The informer went on to state that on the day of the first transaction between Mr. Wilbur and the agent, Wilbur contacted him again to say that he could get machine guns for sale, "(a)nd he said they would be without papers, and, of course, they were cash transactions, they were not registered." It was in response to this offer that the informer arranged the meeting between Mr. Wilbur and the undercover agent at which the agent purchased a machine gun. At that meeting, according to the agent's testimony, Mr. Wilbur showed him a replica of a machine gun which Wilbur said "could come in handy if anybody reported to the police that I had a machine gun. . . . I could show (the police) the replica . . . and they would go away, and I would still have a real machine gun." And as that meeting concluded, the agent testified, Mr. Wilbur inquired whether the agent would be interested in more machine guns. With regard to the three subsequent transactions with the Wilburs, the agent testified that Mr. Wilbur explained how he was able to sell certain weapons without filling out the necessary paper work and described the tagging system in their shop which indicated which weapons could be sold without papers. The agent stated that Mrs. Wilbur was present during several of these discussions, had commented "how they almost got caught" on one sale of an unregistered gun, had also explained the tagging system to him, and offered weapons for sale without papers. This evidence was clearly sufficient to warrant a jury's concluding that Mr. and Mrs. Wilbur were predisposed to deal in unregistered firearms.
10
Appellants' final two claims of error focus on the closing arguments of counsel. It is contended that the district court erred in sustaining an objection to defense counsel's statement to the jury that an issue in the case "is the constitutional right to bear arms. It is a Second Amendment of our Constitution and it is very important." Appellants now contend, though they did not make the point at the time to the district court, that the court's action prevented them from fully articulating their defense that the guns sold to the undercover agent were their personal weapons, not part of the inventory of Valley Trading Post. We fail to see how the court's action prejudiced appellants in any way. They presented this defense elsewhere in their argument without relying on the second amendment, and the court later charged the jury fully on the defense. In curtailing counsel's argument on the second amendment, the court acted properly to prevent confusion lest the jury believe that the Constitution provided the Wilburs with a legal defense.
11
Appellants finally claim that several comments made by the prosecutor in his closing argument, which they objected to at the time, unfairly prejudiced them. We have reviewed the challenged comments in the context of the Government's entire closing argument and think they were proper rebuttal to the defense of entrapment and proper support for the credibility of a key Government witness. The district court has broad discretion in curtailing or allowing comments in closing argument, United States v. Pruitt, 487 F.2d 1241 (8th Cir. 1973), and it did not abuse its discretion here.
12
Affirmed.
*
Of the District of Maine, sitting by designation
*
Appellants also argue that the district court erred in charging the jury that it was to consider the entrapment defense to Count I separately from the entrapment defense to Counts IV-XI. As the Wilburs did not register an objection to the instruction in accordance with Fed.R.Crim.P. 30, they are now constrained to argue that the instruction constituted plain error. Fed.R.Crim.P. 52(b). We cannot say that the court's instructions on entrapment were erroneous in any respect, see United States v. Wells, 506 F.2d 924 (5th Cir. 1975), let alone that there were errors that affected "substantial rights". Fed.R.Crim.P. 52(b)
| {
"pile_set_name": "FreeLaw"
} |
Case: 19-13938 Date Filed: 08/24/2020 Page: 1 of 5
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 19-13938
Non-Argument Calendar
________________________
D.C. Docket No. 6:06-cr-00032-JA-DCI-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
NEALLY CUNNINGHAM,
a.k.a. Neally Cunningham, Jr.,
a.k.a. Nealey Cunningham, III,
a.k.a. Nealy Cunningham, III,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(August 24, 2020)
Before NEWSOM, LUCK, and LAGOA, Circuit Judges.
PER CURIAM:
Case: 19-13938 Date Filed: 08/24/2020 Page: 2 of 5
Neally Cunningham appeals the district court’s denial of his motion for a
reduced sentence under section 404 of the First Step Act of 2018, Pub. L. No. 115-
391, 132 Stat. 5194, 5222, § 404. He contends that the district court erred by
concluding he was ineligible for First Step Act relief. We affirm.
In 2006, following a jury trial, Cunningham was convicted of two counts of
possessing crack cocaine with the intent to distribute it, in violation of 21 U.S.C.
sections 841(a)(1) and (b)(1)(C). The jury found that Cunningham possessed less
than five grams of crack cocaine, and the district court sentenced him as a career
offender to 262 months’ imprisonment.
In 2019, Cunningham moved for a reduction of his sentence under section 404
of the First Step Act. Cunningham argued that his convictions under section
841(b)(1)(C) were “covered offense[s]” under section 404 “because [section] 2 of
the Fair Sentencing Act changed the weight of [crack cocaine] that was penalized by
a statutory range of 0 to 20 years, from less than 5 grams to less than 28 grams.”
The district court denied Cunningham’s motion, concluding that he was not eligible
for relief under the First Step Act because his convictions were not “covered
offense[s]” as defined by the Act. This is Cunningham’s appeal.
“A district court lacks the inherent authority to modify a term of
imprisonment. But it may do so . . . to the extent that a statute expressly permits.
And the First Step Act expressly permits district courts to reduce a previously
2
Case: 19-13938 Date Filed: 08/24/2020 Page: 3 of 5
imposed term of imprisonment.” United States v. Jones, 962 F.3d 1290, 1297 (11th
Cir. 2020) (citations omitted). 1
In 2010, Congress enacted the Fair Sentencing Act, which reduced the
sentencing disparity between crack-cocaine and powder-cocaine offenses. Fair
Sentencing Act of 2010, Pub. L. No. 111-220, § 2, 124 Stat. 2372, 2372; see also
Dorsey v. United States, 567 U.S. 260, 268–69 (2012). Section two of the Fair
Sentencing Act modified sections 841(b)(1)(A)(iii) and (B)(iii) by “increas[ing] the
drug amounts [necessary to trigger] mandatory minimums for crack trafficking
offenses from 5 grams to 28 grams in respect to the 5-year minimum and from 50
grams to 280 grams in respect to the 10-year minimum (while leaving powder at 500
grams and 5,000 grams respectively).” Dorsey, 567 U.S. at 269. These amendments
were not made retroactive to defendants who were sentenced prior to enactment of
the Fair Sentencing Act. United States v. Berry, 701 F.3d 374, 377 (11th Cir. 2012).
And the Fair Sentencing Act did not modify the statutory penalties for section
841(b)(1)(C), which both before and after the Act provided for a term of
imprisonment of not more than twenty years (thirty years with a prior felony drug
offense) for cases involving crack cocaine that did not fall within sections
841(b)(1)(A) or (B). See Fair Sentencing Act § 2(a); 21 U.S.C. § 841(b)(1)(C).
1
“We review de novo . . . whether a district court had the authority to modify a term of
imprisonment.” Jones, 962 F.3d at 1296 (citation omitted).
3
Case: 19-13938 Date Filed: 08/24/2020 Page: 4 of 5
In 2018, Congress enacted the First Step Act, which made retroactive the
statutory penalties for covered offenses under the Fair Sentencing Act. See First
Step Act § 404. Under section 404(b) of the First Step Act, “[a] court that imposed
a sentence for a covered offense may . . . impose a reduced sentence as if sections 2
and 3 of the Fair Sentencing Act . . . were in effect at the time the covered offense
was committed.” Id. § 404(b). The statute defines “covered offense” as “a violation
of a Federal criminal statute, the statutory penalties for which were modified by
section 2 or 3 of the Fair Sentencing Act . . . , that was committed before [the
enactment of the Fair Sentencing Act].” Id. § 404(a).
In Jones, we recently held that a crack-cocaine conviction is a “covered
offense” if it “triggered the higher penalties in section 841(b)(1)(A)(iii) or (B)(iii).”
962 F.3d at 1301. We explained,
A [defendant]’s offense is a covered offense if section two or three of
the Fair Sentencing Act modified its statutory penalties. Section two of
the Fair Sentencing Act . . . modified the statutory penalties for crack-
cocaine offenses that have as an element the quantity of crack cocaine
provided in subsections 841(b)(1)(A)(iii) and (B)(iii). It did so by
increasing the quantity of crack cocaine necessary to trigger those
penalty provisions. See Fair Sentencing Act § 2(a).
Id. at 1298.
Here, Cunningham was convicted under section 841(b)(1)(C), which is not a
covered offense as defined in the First Step Act. Section two of the Fair Sentencing
Act modified the statutory penalties for sections 841(b)(1)(A)(iii) and (b)(1)(B)(iii),
4
Case: 19-13938 Date Filed: 08/24/2020 Page: 5 of 5
but not for section (b)(1)(C). While the increase in drug quantity in section
841(b)(1)(B)(iii) did, in turn, increase the drug quantity for section 841(b)(1)(C)
from five grams to twenty-eight grams, that change did not affect the statutory
penalties of those, like Cunningham, who were originally sentenced under section
841(b)(1)(C). Cunningham’s statutory minimum and maximum sentence––zero to
thirty-year imprisonment––were the same before and after the passage of the Fair
Sentencing Act. The district court did not err in denying Cunningham’s motion for
First Step Act relief.
AFFIRMED.
5
| {
"pile_set_name": "FreeLaw"
} |
MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2018 ME 141
Docket: Kno-17-547
Submitted
On Briefs: September 26, 2018
Decided: October 16, 2018
Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, and HUMPHREY, JJ.
GARY SWEENEY
v.
DEPARTMENT OF CORRECTIONS
MEAD, J.
[¶1] Gary Sweeney appeals from a judgment of the Superior Court
(Knox County, Mallonee, J.) dismissing as untimely his petition seeking review
of a rule promulgated by the Department of Corrections (DOC), which Sweeney
asserts is in violation of a Maine statute and several provisions of the federal
and state constitutions. We agree with Sweeney’s contention on appeal that,
given the clear import of his challenge to the DOC rule, the court should have
treated his petition as a complaint for declaratory judgment and allowed him
to amend his petition to that effect. Accordingly, we vacate the judgment and
remand for further proceedings.
2
I. BACKGROUND
[¶2] On April 4, 2017, Sweeney, a prisoner at the Maine State Prison,
brought a petition for judicial review of final agency action citing
M.R. Civ. P. 80B in the Superior Court, claiming that DOC had promulgated and
enforced a rule that violated 34-A M.R.S. § 3039 (2017)1 and several provisions
of the United States and Maine Constitutions. The rule, with some exceptions
not applicable to Sweeney, required any prisoner who earned money for work
to have ten percent of his earnings, up to $1,000, collected and deposited into a
“personal savings escrow account,” to be returned to the prisoner upon his
release. 1A C.M.R. 03 201 011-5 § 2.12(VI)(F) (2017) (effective Oct. 12, 2016).
[¶3] Sweeney’s petition alleged that a letter he wrote to the
Commissioner asking that the rule be rescinded and that the Commissioner
“return all funds” collected pursuant to the policy had gone unanswered. The
petition sought as relief “to have the policy in question, the forced savings to be
declared unconstitutional as it exceeds the statutory authority of the agency,”
and “[t]hat the [DOC] be ordered to return the assets to the . . . prisoners.” In
1 Title 34-A M.R.S. § 3039 (2017) provides, in part: “When any client confined in a correctional or
detention facility receives money from any source, including compensation for work[,] . . . the money
must be deposited in the department’s general client account or . . . in the department’s telephone
call account. . . . The commissioner shall adopt rules for use of the general client account. These rules
must include a provision allowing a client to remove that client’s money from the general client
account and place it in any type of investment outside the facility chosen by the client.”
3
moving to dismiss the petition pursuant to M.R. Civ. P. 12(b), DOC recognized
that Sweeney was challenging enforcement of the rule as being in violation of
constitutional and statutory provisions, but asserted that Sweeney had written
directly to the Commissioner instead of filing a formal grievance and had
therefore failed to exhaust his administrative remedies. Sweeney’s opposition
to the motion established that DOC was incorrect in its assertions. He had filed
a grievance—before he wrote to the Commissioner—that had been dismissed
as untimely by a grievance review officer at the prison.
[¶4] The court held a hearing on October 3, 2017, at which Sweeney
appeared without counsel. DOC acknowledged that Sweeney had in fact filed a
grievance, characterizing its dismissal by the grievance review officer as a “final
agency action.” DOC argued that the court lacked jurisdiction because, whether
or not the dismissal of the grievance was proper, Sweeney’s petition, filed on
April 4, 2017, was untimely given the dismissal of the grievance on
January 18, 2017.2 When addressing another prisoner who had filed a similar
2 DOC’s argument was based on M.R. Civ. P. 80C(b), governing the timing of a “review of final
agency action.” The Rule incorporates a time limit set out in the Administrative Procedure Act: “The
petition for review shall be filed within 30 days after receipt of notice [of the challenged final agency
action].” 5 M.R.S. § 11002(3) (2017). The time limits established in the Act are jurisdictional. Mutty v.
Dep’t of Corr., 2017 ME 7, ¶ 8, 153 A.3d 775. DOC has since acknowledged that the trial court had no
evidence of when Sweeney received notice that his grievance had been dismissed, although it
asserted at the motion hearing that the filing of his petition for judicial review was “clearly beyond
the 30 days.”
4
petition, which was addressed simultaneously with Sweeney's petition at the
hearing, the court framed what it viewed as the threshold timeliness issue in
the same way. It dismissed Sweeney’s petition without reaching the merits of
his statutory and constitutional arguments, ruling: “The grievance was denied.
And then you didn’t timely take action to challenge that. And that’s where the
door closes for me.”
[¶5] Sweeney filed motions to reconsider, for M.R. Civ. P. 60(b) relief, and
to amend his action. The Rule 60(b) motion and motion to amend stated
explicitly that Sweeney sought to convert his action into a complaint for
declaratory judgment. See 14 M.R.S. §§ 5951-5963 (2017); M.R. Civ. P. 57.
DOC opposed the motions, arguing in part that a declaratory judgment action
would be “futile” because Sweeney’s failure to raise a timely challenge to the
dismissal of his grievance constituted a failure to exhaust his administrative
remedies and deprived the Superior Court of jurisdiction, thus subjecting a
prospective declaratory judgment complaint to dismissal. Sweeney’s response
directed the court to 5 M.R.S. § 8058 (2017), which provides that “[j]udicial
review of an agency rule . . . may be had by any person who is aggrieved in an
action for declaratory judgment in the Superior Court.”
5
[¶6] The court denied the motions, and Sweeney timely appealed. DOC
subsequently moved us to vacate the trial court’s judgment and remand on the
ground that the record did not indicate the date that Sweeney received notice
of the dismissal of his grievance by the grievance review officer, and therefore,
on the authority of Mutty v. Department of Corrections, 2017 ME 7,
153 A.3d 775, “[t]he Superior Court’s decision to dismiss the petition was not
supported by the record.” We denied the motion, indicating that it was clear
Sweeney was challenging the legality of the DOC rule itself, not DOC’s action in
denying his grievance.
II. DISCUSSION
[¶7] We consider in turn whether the trial court should have (1) taken
Sweeney’s initial pleading as a complaint for declaratory judgment challenging
the legality of the DOC rule or (2) granted Sweeney’s motion to amend his
action to state a complaint for declaratory judgment.
A. Initial Pleading
[¶8] Pursuant to the Declaratory Judgments Act, “[a]ny person . . . whose
rights, status or other legal relations are affected by a statute . . . may have
determined any question of construction or validity arising under the . . . statute
. . . and obtain a declaration of rights, status or other legal relations thereunder.”
6
14 M.R.S. § 5954 (2017). Specifically concerning rules promulgated by state
agencies such as DOC, the Administrative Procedure Act provides that
“[j]udicial review of an agency rule . . . may be had by any person who is
aggrieved in an action for declaratory judgment in the Superior Court . . . .
Insofar as the court finds that a rule exceeds the rule-making authority of the
agency . . . it shall declare the rule invalid.” 5 M.R.S. § 8058(1).
[¶9] Accordingly, “[w]hen an agency enacts a rule pursuant to its
rule-making authority, persons aggrieved thereby are entitled to challenge the
rule through a declaratory judgment action.” Conservation Law Found., Inc. v.
Dept. of Envtl. Prot., 2003 ME 62, ¶ 19, 823 A.2d 551. That is the case here,
where Sweeney, contending that DOC enacted a rule that violated 34-A M.R.S.
§ 3039(1) by denying him control of money that he earned, petitioned the
Superior Court “to have the policy in question . . . declared unconstitutional as
it exceeds the statutory authority of the agency.”
[¶10] The court, however, disposed of Sweeney’s petition as a
M.R. Civ. P. 80C action,3 dismissing it for lack of jurisdiction after finding that
Sweeney had failed to timely challenge DOC’s denial of his grievance. See Mutty,
2017 ME 7, ¶ 8, 153 A.3d 775 (stating that the time limit for filing an appeal
3 The Rule governs “[a] review of final agency action.” M.R. Civ. P. 80C(a).
7
from a final agency action is jurisdictional). That is the correct analysis “[w]hen
an agency acts in its adjudicatory role and makes a decision affecting the rights,
duties, or privileges of [a] specific person[],” Conservation Law Found., Inc.,
2003 ME 62, ¶ 19, 823 A.2d 551, but a declaratory judgment action is the
appropriate vehicle when, as here, it is clear from the pleadings that the
challenge is to the legality of the rule itself as opposed to the agency’s
application of the rule, see id.4 We conclude that, given the allegations made
and the relief requested in Sweeney’s petition, the court erred in dismissing it
for lack of jurisdiction rather than treating Sweeney’s pleading as a complaint
for declaratory judgment. See Mutty, 2017 ME 7, ¶ 9, 153 A.3d 775 (“We review
de novo . . . a dismissal for lack of jurisdiction.”).
B. Motion to Amend
[¶11] In his motions to amend and for Rule 60(b) relief following the
dismissal of his initial petition, Sweeney explicitly asked the court to treat the
4 See Capodilupo v. Town of Bristol, 1999 ME 96, ¶ 4, 730 A.2d 1257 (stating in a tax assessment
case that “[a] declaratory judgment action is a proper means to obtain a remedy when an entire tax
assessment is void (e.g., the tax itself is unlawful or the taxing authority is invalid)”; Summit Realty, Inc.
v. Gipe, 315 A.2d 428, 430 n.2 (Me. 1974) (“[T]he failure of the plaintiff to follow the procedural
mandates of Rule 80B does not necessarily deprive the [c]ourt of the right to grant equitable relief,
since the complaint may be considered as one for declaratory judgment.”); Katz v. Johnson,
220 A.2d 495, 499 (Me. 1966) (stating that the Law Court would “cut through the titles of the
complaint and judgment” to determine the true nature of the plaintiff’s appeal), overruled on other
grounds by Katz v. State Tax Assessor, 472 A.2d 428, 431 (Me. 1984).
8
petition as a complaint for declaratory judgment. The court found that
“[Sweeney] has not presented a valid ground for relief” and denied the motions.
[¶12] As a general matter, permission to amend a complaint “shall be
freely given when justice so requires.” M.R. Civ. P. 15(a). Sweeney originally
brought his petition pursuant to M.R. Civ. P. 80B, which provides that “[l]eave
to amend pleadings shall be freely given when necessary to permit a proceeding
erroneously commenced under this rule to be carried on as an ordinary civil
action,” i.e., a declaratory judgment action. M.R. Civ. P. 80B(a).
[¶13] “We review the denial of a motion for leave to amend for an abuse
of discretion.” Paul v. Town of Liberty, 2016 ME 173, ¶ 9, 151 A.3d 924. “On
appeal, a party who was denied leave to amend must demonstrate (1) that the
court clearly and manifestly abused its discretion and (2) that the amendment
was necessary to prevent injustice.” Id. (quotation marks omitted). In many
cases, if not most, a party seeking to redeem an unsuccessful Rule 80B or 80C
action by simply recasting it as a complaint for declaratory judgment will be
unable to meet that burden. Here, however, given Sweeney’s clear challenge to
the legality of the DOC rule itself and not its application to his individual
circumstances, we conclude that the court abused its discretion in declining to
9
allow Sweeney to amend his complaint and seek relief through a declaratory
judgment action.
The entry is:
Judgment vacated. Remanded with instructions
to grant Sweeney’s motion to amend to allow
him to bring his action as a complaint for
declaratory judgment.
Gary Sweeney, appellant pro se
Janet T. Mills, Attorney General, and James E. Fortin, Asst. Atty. Gen., Office of
the Attorney General, Augusta, for appellee Department of Corrections
Knox County Superior Court docket number AP-2017-11
FOR CLERK REFERENCE ONLY
| {
"pile_set_name": "FreeLaw"
} |
118 F.Supp.2d 694 (2000)
Patrice B. PAUL, etc., Plaintiff,
v.
Roy C. GOMEZ, M.D., Defendant.
No. 1:99CV00166.
United States District Court, W.D. Virginia, Abingdon Division.
October 27, 2000.
Mary Lynn Tate, The Tate Law Firm, Abingdon, VA, Matthew Brundred Murray, Richmond and Fishburne, Charlottesville, VA, for Patrice B. Paul.
Thomas W. Farrell, Wooten & Hart, Roanoke, VA, for Roy C. Gomez, M.D.
OPINION AND ORDER
JONES, District Judge.
The question for resolution is whether the Virginia Dead Man's Statute applies to prevent the defendant physician from testifying to his version of the treatment he gave his patient, where the patient is now deceased, but where the patient's wife was present and will testify as to the alleged negligent treatment. Based on the history and purpose of the Virginia statute, I find that it does not exclude the doctor's testimony.
I
The plaintiff is the personal representative of Johnny M. Beverly, deceased. The present action is a claim for wrongful death resulting from alleged medical malpractice by the defendant, Roy C. Gomez, M.D. Central to the plaintiff's cause of action is the claim that Dr. Gomez, on multiple occasions, neglected to refer Mr. Beverly to a specialist or pursue other diagnostic cardiovascular tests. The defendant counters that he made such recommendations to Mr. Beverly, but that Mr. Beverly refused to consent to them.
To prove that no referrals or other testing were ordered, the plaintiff asserts that no notations appear in Dr. Gomez's office visit records that would indicate that such recommendations were made. Further, the plaintiff has submitted the affidavit of Jackie Beverly, widow of Mr. Beverly, who was present at her husband's office visits *695 to Dr. Gomez,[1] stating that "Dr. Gomez never told me or my husband that Johnny needed any of these tests or an appointment with a cardiologist." (Beverly Aff. ¶ 6.)
The plaintiff has now moved to exclude the testimony of Dr. Gomez regarding his version of the conversations that took place between Dr. Gomez, Mr. Beverly, and Mrs. Beverly, pursuant to Code of Virginia section 8.01-397, known as the "Dead Man's Statute," on the ground that Mr. Beverly is deceased and thus incapable of testifying. In response, the defendant argues that the Dead Man's Statute does not apply, and that even if it does apply, Dr. Gomez's sworn statement that he has a habit of making recommendations to patients such as Mr. Beverly provides sufficient corroboration to allow him to testify.
II
The Dead Man's Statute provides, in pertinent part, that "[i]n an action by or against a person who, from any cause, is incapable of testifying, or by or against [a] representative of the person so incapable of testifying, no judgment or decree shall be rendered in favor of an adverse or interested party founded on his uncorroborated testimony." Va.Code Ann. § 8.01-397 (Michie 2000). Because state law supplies the rule of decision in this diversity action, the Dead Man's Statute applies pursuant to Rule 601 of the Federal Rules of Evidence. See Fed.R.Evid. 601; see also Fed.R.Evid. 601 Advisory Committee Notes on 1974 Enactment (stating that rule was written to allow state Dead Man's Statutes to apply in diversity cases).
The plaintiff contends that even though Mrs. Beverly will testify as to her version of her husband's dealings with Dr. Gomez, Dr. Gomez is precluded from testifying as to his version of those dealings because Mr. Beverly is deceased. However, I find Virginia law to the contrary.
At common law all witnesses who had an interest in the outcome of the litigation were incompetent to testify. Virginia's legislature abolished this general disqualification in the nineteenth century, although the statutes contained many exceptions, including a forerunner to the present Dead Man's Statute that excluded testimony by the survivor of a transaction with a person unable to testify by reason of death or other cause. See Epes' Adm'r v. Hardaway, 135 Va. 80, 115 S.E. 712, 713 (1923).
The Virginia code revision of 1919 adopted the present version of the Dead Man's Statute and sought to remove "practically all disqualifications," by allowing interested parties to testify in general, and allowing testimony against a party incapable of testifying, provided the testimony was corroborated. See id.; see also Note, Corroboration in Virginia Under Section 8-286, 39 Va. L.Rev. 395, 395-96 (1953). Virginia courts have recognized that the statute was "highly remedial" in nature, and should not be construed to create any new disqualifications or burdens on witnesses who would have been competent under the previous law. Epes' Adm'r, 115 S.E. at 716; Robertson's Ex'r v. Atlantic Coast Realty Co., 129 Va. 494, 106 S.E. 521, 524 (1921). Therefore, "no corroboration is required of those witnesses who were competent before the Code of 1919 became operative, and who did not then require corroboration." Epes' Adm'r, 115 S.E. at 716. Because Dr. Gomez would have been competent to testify under the law as it existed before 1919, I find that no corroboration is required under the current law for his testimony to be admissible.
*696 Prior to the 1919 version of the Virginia Code, the witness competency statutes provided an exception to the bar of testimony by an interested party against a deceased party, allowing testimony where "some person, having an interest in or under such contract or transaction, derived from the party so incapable of testifying, has testified in behalf of the latter or of himself, as to such contract or transaction." Epes' Adm'r, 115 S.E. at 714. Thus, where a living, interested person was able to testify about a transaction, the adverse party became a competent witness to counter that testimony. For example, in a dispute concerning an alleged gift causa mortis, at least three people were present when the alleged transaction took place: the decedent, the decedent's daughter, and the decedent's servant. See Copeland v. Copeland's Adm'r, 24 S.E. 218, 219 (Va.1896). The daughter and the servant had conflicting accounts as to whether the gift was made to the servant. See id. The court found that the servant was competent to testify to counter the daughter's version of the events surrounding the alleged giving of the gift. See id.; see also Witt v. Creasey, 117 Va. 872, 86 S.E. 128, 129 (1915) (allowing testimony by an adverse party to counter testimony by the son of the decedent).
The present case is analogous to the cases in which testimony was allowed under the law prior to 1919. Like the transaction at issue in Copeland, three people were present at the transactions at issue, one of which having died, the remaining two claiming conflicting versions of what occurred. While Mrs. Beverly is not a formal party to the present case, there is no question but that she is an interested party, since she is a statutory beneficiary under the Virginia wrongful death statute. See Va.Code Ann. § 8.01-53 (Michie 2000). Under the law a century ago, Dr. Gomez would have been able to testify without corroboration to counter Mrs. Beverly's version of the facts.
The Virginia courts are clear that the modern requirement of corroboration is only applicable to "the new class of witnesses, made competent for the first time by the Code of 1919," namely, those who can now testify, with corroboration, "to contracts or transactions to which there [were] no other living witness." Epes' Adm'r, 115 S.E. at 716, 715. Indeed, the Epes' Administrator court acknowledged that though the plain language of the statute does not contain such a limitation, the new statute could not be construed "to require corroboration or additional proof where none was required prior to the new enactments." Id. at 716. Therefore, under Virginia law, the requirement of corroboration cannot serve to exclude the testimony of Dr. Gomez, who is competent to counter the testimony of Mrs. Beverly, an interested witness who was present at the contested transactions.
This finding is supported by the policy of the Dead Man's Statute. The purpose of the statute is to "prevent [] an opportunity for the survivor to prevail by relying on his own unsupported credibility, while his opponent, who alone might have contradicted him, is silenced by death." Hereford v. Paytes, 226 Va. 604, 311 S.E.2d 790, 793 (1984) (emphasis added). Thus, the statute is designed to avoid the unfairness of a situation where the jury only hears one version of the facts. Here, the jury will hear two versions of the facts from two opposing witnesses, one representing a view in the interest of the decedent's estate, the other representing a view in the interest of the defendant. It is difficult to see how any unfairness to the decedent's estate could result from this situation.
Because the Dead Man's Statute does not impose a corroboration requirement in this case, I do not reach the issue of whether Dr. Gomez's affidavit regarding his professional habit constitutes sufficient corroboration.
*697 III
For the foregoing reasons, it is ORDERED that the plaintiff's Motion to Exclude Testimony Pursuant to Code of Virginia Section 8.01-397 (Doc. No. 25) is denied.
NOTES
[1] There is a factual dispute over whether Mrs. Beverly was present at Mr. Beverly's first visit to Dr. Gomez on February 14, 1997. Mrs. Beverly states that "it was [her] recollection" that she did not attend the first visit (Beverly Aff. ¶ 2.), but Dr. Gomez states that he specifically remembers Mrs. Beverly being there. (Gomez Dep. at 41-42, 48-49.) Since the jury may accept Dr. Gomez's recollection, I cannot exclude his testimony, even as to the first visit.
| {
"pile_set_name": "FreeLaw"
} |
728 P.2d 1220 (1986)
Russell S. BOWELL, Appellant,
v.
STATE of Alaska, Appellee.
No. A-1175.
Court of Appeals of Alaska.
December 5, 1986.
*1221 William A. Davies, Asst. Public Defender, Fairbanks, and Dana Fabe, Public Defender, Anchorage, for appellant.
Cynthia M. Hora, Asst. Atty. Gen., Office of Special Prosecutions and Appeals, Anchorage, and Harold M. Brown, Atty. Gen., Juneau, for appellee.
Before BRYNER, C.J., and COATS and SINGLETON, JJ.
OPINION
SINGLETON, Judge.
Russell S. Bowell was convicted by a jury of kidnapping in violation of AS 11.41.300(a)(1), and first-degree sexual assault in violation of AS 11.41.410(a)(1). Bowell appeals, challenging his conviction. We affirm Bowell's conviction, but remand to permit the trial court to consider Bowell's motion for a new trial.
FACTS
James D. Thomas, Bowell's codefendant, sexually assaulted B.S. in the back of a vehicle driven by Bowell. B.S. testified that she had been walking when she observed two men she later learned to be Bowell and Thomas in a Toyota driving slowly by her. Thomas asked her if she wanted a ride, and she accepted. The vehicle apparently had no rear seats. B.S. entered it and sat on the floor where she observed a pit bull, whose name she later learned was "Crusher." Thomas got into the back with her and put the dog in the passenger seat. B.S. testified that Thomas told her that she would have to pay for her ride, and asked her if she knew how to "give a good blow job." B.S. asked to be let out of the vehicle, but was not permitted to leave.
B.S. testified that Thomas forced her to engage in vaginal, oral and anal intercourse during the following three hours. She also testified that Thomas told Bowell that when he (Thomas) was through, it would be Bowell's turn. Bowell then told Thomas to hurry up because they were running low on "octane." Thomas also threatened B.S. with a gun, as well as threatening that he was going to get a chainsaw, cut off her arms and legs and leave her in a snowbank. Bowell corroborated B.S.'s testimony in part, by testifying that he remembered hearing Thomas mention something about a chainsaw.
In B.S.'s view, Bowell assisted Thomas in coercing the intercourse by responding to Thomas' request to stop and start the car, by obtaining a gun for Thomas to use to overcome B.S.'s resistance, and by keeping "Crusher" out of the back of the car. The most pointed example of this assistance occurred when Thomas told Bowell that B.S. was not cooperating, and asked him to hand back the gun. B.S. testified that Bowell took the gun out of the glove compartment, loaded it, and handed it back to Thomas who placed it against B.S.'s neck.
DISCUSSION
The theory of the prosecution identified Bowell as a principal to B.S.'s kidnapping, reasoning that his driving the vehicle and ignoring her pleas to be released, constituted the restraint required for a conviction of kidnapping. AS 11.41.300(a)(1)(C) (a person commits the crime of kidnapping if [he] restrains another person with intent to ... sexually assault the restrained person or place the restrained person ... in apprehension that any person will be subjected to ... sexual assault). Bowell does not challenge his conviction for kidnapping on appeal.
The state also theorized that Bowell was an accomplice to Thomas' first-degree sexual *1222 assault of B.S. Bowell vigorously attacks his conviction on this count. He reasons that the accomplice statute is constitutionally defective for failing to require a culpable mental state. Alternatively, he argues, that if a culpable mental state is required by the statute, that fact was not sufficiently communicated to the jury in the relevant jury instructions. Bowell concedes that he did not object to the instructions at trial, and therefore must establish plain error in order to prevail on this part of his argument. Alaska R.Crim.P. 47(b). Finally, Bowell argued that the trial court should have granted a judgment of acquittal on this issue. We will address each of Bowell's arguments in turn.
Bowell reasons that AS 11.16.110(2)(B) creates a legal accountability for a person who aids or abets another person in the commission of a criminal offense, but is deficient in failing to provide a "mental element" for "aiding or abetting."
Alaska Statute 11.16.110 provides as follows:
Legal accountability based upon the conduct of another: Complicity.
A person is legally accountable for the conduct of another constituting an offense if
... (2) with intent to promote or facilitate the commission of the offense, the person
... (B) aids or abets the other in planning or committing the offense.
The state counters that Bowell has misread the statute, and that the introductory language to AS 11.16.110(2)(B), "with intent to promote or facilitate the commission of the offense" supplies the mens rea for accomplice liability, while "aids or abets" describes the actus reus of the offense. The state's position finds support in the 1977 Commentary to the Tentative Draft of the Alaska Criminal Code Revision Part II at 25, and in the Commentary to the Model Penal Code provision from which our statute is derived, A.L.I., Model Penal Code and Commentaries Part I § 2.06 (1985). The Commentary states in relevant part:
Subsection (3)(a) requires that the actor have the purpose of promoting or facilitating the commission of the offense, i.e., that he have as his conscious objective the bringing about of conduct that the Code has declared to be criminal. This is not to say that he must know of the criminality of the conduct; there is no more reason here to require knowledge of the criminal law than there is with the principal actor. But he must have the purpose to promote or facilitate the particular conduct that forms the basis for the charge, and thus he will not be liable for conduct that does not fall within this purpose.
Id. § 2.06 at 310-11 (footnote omitted).[1]
In summary, in order to be liable as an accomplice for Thomas' sexual assault on B.S., it was necessary that the state prove beyond a reasonable doubt that Bowell was aware that Thomas intended to have sexual intercourse with B.S. and, intending to facilitate Thomas in achieving his goal, performed some act of aid or encouragement. While the statute interpreted in this way will adequately provide both the mens rea and an actus reus for most offenses, it does present certain difficulties in connection with crimes such as first-degree sexual assault, which include the circumstances surrounding an offender's conduct as an element of the offense. The Commentary to the Model Penal Code discusses this problem as follows:
There is a deliberate ambiguity as to whether the purpose requirement [the requirement that in order to be guilty as an accomplice, the actor have the purpose of promoting or facilitating the commission of the offense] extends to circumstance *1223 elements of the contemplated offense or whether, as in the case of attempts, the policy of the substantive offense on this point should control. The reasoning is the same as in the case of conspiracy, which is set forth in some detail in Section 5.03 Comment 2(c)(ii). The result, therefore, is that the actor must have a purpose with respect to the proscribed conduct or the proscribed result, with his attitude towards the circumstances to be left to resolution by the courts. His attitude towards the criminality of the conduct, see Section 2.02(9), is irrelevant here as it is in the other cases, subject of course to the limitation of Section 2.04(3) (ignorance or mistake of fact or law).
A.L.I., Model Penal Code and Commentaries Part I § 2.06 n. 37, at 311 (1985).[2]
Under current law, the state's burden to establish a culpable mental state in order to convict a person as an accomplice is a matter of first impression. See Hensel v. State, 604 P.2d 222 (Alaska 1979) (considering the issue of the requisite mental state for accomplice liability under prior law). In Reynolds v. State, 664 P.2d 621 (Alaska App. 1983), we held that the state must prove a culpable mental state regarding the "circumstance" lack of consent in order to convict a principal of the offense of first-degree sexual assault. "In order to prove a violation of AS 11.41.410(a)(1), the state must prove that the defendant knowingly engaged in sexual intercourse and recklessly disregarded his victim's lack of consent." 664 P.2d at 625. Similar reasoning leads us to conclude that the state must prove the same element in order to convict a person of first-degree sexual assault as an accomplice. In other words, in order to convict Bowell as an accomplice of Thomas' first-degree sexual assault of B.S., the state was required to prove that Bowell knew that Thomas intended to engage in sexual intercourse with B.S., that he intentionally engaged in conduct facilitating Thomas' efforts, and that at the time he aided Thomas, he recklessly disregarded B.S.'s lack of consent to Thomas' overtures.[3]
*1224 Bowell next argues that the jury instructions were inadequate in describing the culpable mental state necessary for a finding of accomplice liability to first-degree sexual assault. The jury was instructed that in order to find Russell Bowell guilty of first-degree sexual assault, it had to find:
As to Russell Scott Bowell:
1. That the event in question occurred at or near Fairbanks, in the Fourth Judicial District, State of Alaska, and on or about the 4th day of February, 1985;
2. That the defendant, James D. Thomas, knowingly engaged in sexual penetration with B.S.;
3. That the penetration occurred without the consent of B.S.;
4. That Russell Scott Bowell aided or abetted James D. Thomas in the sexual penetration; and
5. That James D. Thomas recklessly disregarded B.S.'s lack of consent to the sexual penetration.[4]
Bowell claims error because this instruction does not specify a mental state for Bowell's acts. Rather, the only mental state for the jury to consider under this instruction is whether or not Thomas recklessly disregarded B.S.'s nonconsent to intercourse.
Bowell is correct that this instruction is incomplete regarding the required mens rea for accomplice liability. Since he did not object to this instruction at trial, he must establish plain error in order to prevail. Alaska R.Crim.P. 47(b). We note that Bowell did more than fail to object to the instruction at trial. It was his counsel who suggested that the mental state as to Bowell should be that Thomas recklessly disregarded B.S.'s lack of consent to the intercourse. Under the totality of the circumstances, we are satisfied that no plain error occurred. We are also satisfied that the other instructions given, coupled with the parties' arguments, adequately presented the issue to the jury. See, e.g., Reynolds v. State, 664 P.2d at 627-28. See also Cupp v. Naughten, 414 U.S. 141, 94 S.Ct. 396, 38 L.Ed.2d 368 (1973) (single instruction to a jury may not be judged in artificial isolation, but must be viewed in the context of the overall charge). The other instructions given informed the jury on accomplice liability:
An accomplice is one who in some manner, knowingly and with criminal intent, aids, abets, assists or participates in a criminal act.
A person need not commit every element of the offense in order to be guilty as an accomplice. However, it is necessary that he in some ways [sic] associate himself with the venture, that he participate in it as in something that he wishes to bring about, that he seek by his actions to make it succeed... .
"Aid and abet" means to help, assist, or facilitate the commission of a crime, promote the accomplishment thereof, help in advancing or bringing it about, or induce, counsel, or incite as to its commission.
Under the laws of Alaska a person need not directly commit each act constituting the offense charged to be guilty thereof. A person who, with intent to promote or facilitate the commission of the offense, aids or abets another in planning or committing the offense is as guilty as the person or persons who commit the offense personally... .
Furthermore, the parties' arguments at closing both expressed the correct legal standard regarding Bowell's culpability. The prosecutor stated:
And then you have to consider, if you found these four things [establishing Thomas' guilt] beyond a reasonable doubt, whether you believe beyond a reasonable doubt that Mr. Bowell aided or abetted and that sexual penetration in other words, did he know what was happening, *1225 was he in agreement with it, was it [sic] doing things to help it along, to make it possible for Mr. Thomas to do what he was doing, was he a part of it and was he a participant in the whole situation.
Bowell's counsel argued to the jury without objection by the state:
Now the law is going to be completely read to you. Under the law of the State of Alaska somebody can be guilty as a principal if he aids or abets, Okay? And if a person intends to promote or facilitate the commission of an offense, aids and abets aids and abets, he is guilty as the person or persons who commit the offense... . In order to aid and abet another to commit a crime it is necessary that the defendant willfully associate himself in some way with the criminal avenger, that he willfully participated in something that he wishes to bring about, that he willfully seeks by some action to make it succeed... . You have to find that he intended to aid and abet Mr. Thomas. And a person acts intentionally with respect to a result when his conscious objective is to cause that result.
We conclude therefore, that Bowell has failed to establish plain error.
Bowell next argues that there was insufficient evidence to convict him of aiding and abetting first-degree sexual assault. Bowell stresses B.S.'s testimony that she would not have been able to escape Thomas' sexual assault even if Bowell had not been present. On review, we must view the evidence and the inferences that may be drawn therefrom in the light most favorable to the prosecution to determine whether there is substantial evidence to support the conviction against Bowell. Dorman v. State, 622 P.2d 448, 453 (Alaska 1981). Substantial evidence is defined as such relevant evidence as is adequate to support the conclusion by a reasonable mind that there is no reasonable doubt as to Bowell's guilt. Id. at 453 (citations omitted).
Applying this standard, we are satisfied that there is sufficient evidence in the record to enable reasonable jurors to determine beyond a reasonable doubt that Bowell was guilty of aiding and abetting Thomas' sexual assault of B.S.B.S. testified that Thomas was speaking loudly enough for Bowell to hear when he said, "Little girls shouldn't be out hitchiking in the middle of the night [sic] unless they're asking for something." B.S. asked Bowell to stop and please let her out; Bowell did not stop. When Thomas asked Bowell for the gun, B.S. testified that Bowell retrieved the gun from the glove box, loaded it, and handed it to Thomas. According to B.S., Thomas told Bowell that when Thomas was finished with B.S., it was Bowell's turn. Bowell said, "Hurry up then." B.S. testified that Bowell assisted Thomas in the sexual assault by driving the car, without slowing the rate of speed, to prevent her escape.
We recognize that B.S. testified to a multiplicity of sexual assaults during the approximately three hours that she was in the company of Thomas and Bowell. Given B.S.'s testimony about her actions, and those of Thomas and Bowell, we are satisfied that a reasonable jury could conclude beyond a reasonable doubt that Bowell, at some point, was aware that Thomas was engaging in sexual intercourse with B.S. without her consent, and knowing that, he aided and abetted Thomas. The trial court did not err in denying Bowell's motion for a directed verdict of acquittal.
We will now briefly address Bowell's arguments regarding his sentence. A first offender convicted of first-degree sexual assault is subject to presumptive sentencing. AS 12.55.125(i). If the offense is a first felony conviction and the defendant possessed a fire arm, the presumptive term is ten years. Id. (i)(2). Judge Greene found that Bowell's passing a loaded fire arm to Thomas constituted "possession of a fire arm." Bowell argues that only Thomas possessed the fire arm in connection with the offense. See, e.g., Dailey v. State, 675 P.2d 657, 661 (Alaska App. 1984). We disagree. Where an accomplice furnishes a fire arm to his principal in order to aid and abet a sexual assault, the trial court may properly find that *1226 the accomplice possessed a fire arm for purposes of the enhanced presumptive term. AS 12.55.125(i)(2). Judge Greene's conclusion was not clearly erroneous. McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974).
The judgment of the superior court is AFFIRMED. The case is REMANDED for consideration of Bowell's motion for new trial.[5]
NOTES
[1] The culpable mental state "intentionally" is defined as follows:
AS 11.81.900. Definitions.
(a) For purposes of this title, unless the context requires otherwise,
(1) a person acts "intentionally" with respect to a result described by a provision of law defining an offense when the person's conscious objective is to cause that result; when intentionally causing a particular result is an element of an offense, that intent need not be the person's only objective... .
[2] As indicated, the commentary to Model Penal Code § 2.06 discusses a problem which is also discussed in the commentary to Model Penal Code § 5.03, dealing with criminal conspiracy. There the commentators state:
The conspiracy provision in the Code does not attempt to solve the problem [whether culpability with respect to circumstance elements is required] by explicit formulation, nor have the recent legislative revisions. Here, as in the section on complicity, it was believed that the matter is best left to judicial resolution as cases that present the question may arise and that the formulations proposed afford efficient flexibility for satisfactory decision. Under Subsection (1) of Section 5.03 it is enough that the object of the agreement is "conduct that constitutes the crime," which can be held to import no more than the mental state required for the substantive offense into the agreement to commit it. Although the agreement must be made "with the purpose of promoting or facilitating the commission of the crime," it is arguable, though by no means certain, that such a purpose may be proved although the actor did not know of the existence of a circumstance, which did exist in fact, when knowledge of the circumstance is not required for the substantive offense. Rather than press the matter further in this section, the Institute deliberately left the matter to interpretation in the context in which the issue is presented. Too many variations, many of which cannot be foreseen with any confidence, could otherwise be expected to arise and undermine any more rigid formula.
A.L.I., Model Penal Code and Commentaries Part I § 5.03, at 413-19 (1985) (footnotes omitted).
[3] At Bowell's request, the trial court instructed the jury that Bowell's culpability depended in part upon a finding that Thomas recklessly disregarded B.S.'s lack of consent. We express no opinion as to whether Bowell's culpability required a finding of this element. As we noted in Reynolds, a claim by one charged with sexual assault that he reasonably or unreasonably disregarded his victim's lack of consent is akin to a defense of mistake of fact. 664 P.2d at 624-25. Such a defense might be personal to the actor. Thus, a jury might find that A with the active assistance of B engaged in sexual intercourse with C and that C in fact did not consent. The jury might further find that B, the accomplice, was aware of and disregarded a substantial risk of C's lack of consent but that A, the principal, honestly but unreasonably believed that she consented. We express no opinion as to whether B could be properly convicted on such facts. Compare AS 11.16.110(3) [a person is legally accountable for the conduct of another constituting an offense if ... acting with the culpable mental state that is sufficient for the commission of the offense, the person causes an innocent person or a person who lacks criminal responsibility to engage in the proscribed conduct] with AS 11.16.120(a)(2)(C) [in a prosecution for an offense in which legal accountability is based on the conduct of another person, it is not a defense that the other person is not guilty of the offense].
[4] Bowell does not complain of element no. 5 of the instruction on appeal. [See n. 3, supra.]
[5] Bowell raises other issues which we briefly address. First, he contends that the trial court erred in concluding that it had no jurisdiction to consider his motion for new trial based upon newly discovered evidence filed on the same day that he filed his notice of appeal. The parties are in agreement that Judge Greene could have considered the motion and denied it without a remand from this court, but would have needed to request a remand in order to grant the motion. See, e.g., State v. Salinas, 362 P.2d 298, 301 (Alaska 1961). It is unnecessary for us to pursue this issue, however, because our affirmance of Bowell's conviction will permit the trial court to address his motion for new trial on remand.
Bowell also challenges Judge Greene's rejection of a mitigating factor that he committed the offense under some degree of duress, coercion, threat or compulsion, insufficient to constitute a complete defense but which significantly affected his conduct. AS 12.55.155(d)(3). Since Judge Greene's decision on this issue might be influenced by the so-called newly discovered evidence that Bowell seeks to present in support of his motion for a new trial, we will permit reconsideration of this issue on remand. See, e.g., Hart v. State, 702 P.2d 651 (Alaska App. 1985). See also Bynum v. State, 708 P.2d 1293 (Alaska App. 1985); Lee v. State, 673 P.2d 892, 896 (Alaska App. 1983).
Finally, Bowell appealed Judge Greene's imposition of consecutive sentences for kidnapping and first-degree assault. However, the lower court has since modified the sentence on appeal and Bowell has abandoned this issue.
| {
"pile_set_name": "FreeLaw"
} |
289 B.R. 27 (2003)
In re VALLEY MEDIA, INC., Debtor.
Valley Media, Inc., Plaintiff,
v.
Toys R Us, Inc., Defendant.
Bankruptcy No. 01-11353 PJW, Adversary No. 02-3203.
United States Bankruptcy Court, D. Delaware.
January 21, 2003.
*28 Rachel B. Mersky, Walsh Monzack and Monaco, P.A., Wilmington, DE, Karen L. Gilman, Jaimie A. Rothman, Wolff & Samson, P.A., Roseland, NJ, for Toys R Us, Inc., Defendant.
Donna L. Culver, David J. Teklits, Donna L. Harris, Thomas W. Briggs, Jr., Morris, Nichols, Arsht & Tunnell, Wilmington, DE, for Valley Media, Inc., Debtor and Debtor-in-Possession.
MEMORANDUM OPINION
PETER J. WALSH, Chief Judge.
This opinion is with respect to Toys R Us, Inc.'s ("Defendant") motion (Doc. # 6) requesting that this Court abstain from hearing the adversary proceeding filed by Valley Media, Inc. ("Plaintiff"). Defendant *29 asserts that, pursuant to 28 U.S.C. § 1334, this Court lacks subject matter jurisdiction because this adversary proceeding focuses on a "non-core" state contract law claim. For the reasons set forth below, I will deny Defendant's motion to abstain.
BACKGROUND
On November 20, 2001, Plaintiff filed a voluntary petition for relief under chapter 11 of title 11 of the United States Code, 11 U.S.C. §§ 101 et. seq. (the "Bankruptcy Code").[1] Plaintiff filed a complaint on May 2, 2002 and filed an amended complaint on May 15, 2002. According to Plaintiff, Defendant holds funds totaling $7,435,525.80, net of offsetting credits, which belong to Plaintiff. Plaintiff asserts that these payments are property of the estate and are subject to turnover pursuant to § 542. See Doc. # 3 at ¶ 9. In addition, Plaintiff contends that Defendant's failure to remit these payments has resulted in a breach of contract. See id. at ¶ 24. Finally, Plaintiff seeks to avoid, pursuant to § 547(b), and recover, pursuant to § 550(a)(1), certain property transfers made within the ninety-day preference period, totaling not less than $1,978,139.86. See id. at ¶¶ 37-45.
Defendant filed an answer containing affirmative defenses and a counterclaim. The motion requests that pursuant to 28 U.S.C. § 1334(c)(1), this Court abstain from hearing the adversary proceeding. By its counterclaim, Defendant seeks to setoff credit memos against any amounts owed to Plaintiff. See Doc. # 5 at 9, ¶¶ 6-8. Defendant has also counterclaimed for $2.2 million worth of products it alleges were never delivered by Plaintiff. See id. at 10, ¶¶ 11-14. Defendant contends that the present adversary proceeding "is nothing more than an attempt by [Plaintiff] to collect pre-petition accounts receivable . . ." See Doc. # 6 at ¶ 12. Defendant alleges that this adversary proceeding is a non-core proceeding because Plaintiff's claims are governed by the laws of New Jersey and no interpretation of the Bankruptcy Code is required. See Doc. # 8 at 8. Defendant asserts the right to have this case decided by a jury and Defendant does not consent to a jury trial in the bankruptcy court. See Doc. # 6 at ¶ 14. Defendant contends that this situation strips this Court of jurisdiction over the adversary proceeding and requires me to abstain in favor of a state court proceeding.
DISCUSSION
Bankruptcy judges, pursuant to 28 U.S.C. § 1334(c)(1), may abstain from a case arising under, or related to, the Bankruptcy Code in certain circumstances. "Nothing in this section prevents a district court in the interest of justice, or in the interest of comity with State courts or respect for State law, from abstaining from hearing a particular proceeding arising under title 11 or arising in or related to a case under title 11." 28 U.S.C. § 1334(c)(1). This Court has previously considered the following factors when determining whether discretionary abstention is appropriate:
(1) The effect or lack thereof on the efficient administration of the estate; (2) the extent to which state law issues predominate over bankruptcy issues; (3) the difficulty or unsettled nature of the applicable state law; (4) the presence of a related proceeding commenced in state court or other non-bankruptcy court; (5) the jurisdictional basis, if any, other than 28 U.S.C. § 1334; (6) the degree of relatedness of the proceeding to the *30 main bankruptcy case; (7) the substance rather than the form of an asserted "core" proceeding; (8) the feasibility of severing state law claims from core bankruptcy matters to allow judgments to be entered in state court with the enforcement left to the bankruptcy court; (9) the burden of the court's docket; (10) the likelihood that the commencement of the proceeding in bankruptcy court involves forum shopping by one of the parties; (11) the existence of a right to a jury trial; and (12) the presence in the proceeding of nondebtor parties.
Sun Healthcare Group, Inc. v. Levin (In re Sun Healthcare Group, Inc.), 267 B.R. 673, 678-79 (Bankr.D.Del.2000); Cont'l Airlines, Inc. v. Allen (In re Cont'l Airlines, Inc.), 156 B.R. 441, 443 (Bankr.D.Del.1993); TTS, Inc. v. Stackfleth (Matter of Total Technical Servs., Inc.), 142 B.R. 96, 100-01 (Bankr.D.Del.1992); see also Asousa P'ship v. Pinnacle Foods, Inc., 276 B.R. 55, 75 (Bankr.E.D.Pa.2002).
Courts utilizing these factors have not developed a specific formula to address how many or which factors are required for discretionary abstention to be appropriate. I will briefly consider each factor.
(1) The effect on the efficient administration of the estate
Abstention from this adversary proceeding would detrimentally impact the efficient administration of Plaintiff's estate. First, I cannot abstain from this adversary proceeding in its entirety. Plaintiff alleges that certain preferential transfers were made to the Defendant during the ninety day preference period. Because the complaint has met the pleading standard for an avoidance action, abstention from the entire adversary proceeding would be inappropriate. A preferential transfer claim is a core proceeding subject to the exclusive jurisdiction of the bankruptcy court. See 28 U.S.C. § 157(b)(2)(F).
Second, a state court proceeding was never filed, by either party, prior to Plaintiff's bankruptcy filing. My abstention would require Plaintiff to file a new complaint presumably in the New Jersey state courts. Plaintiff would then be responsible for additional court costs and attorneys fees resulting from this new filing. Abstention would likely cause delay in the resolution of the disputes between the parties.
Finally, Defendant contends that Plaintiff's claims of preferential transfers and unpaid balances are false. This assertion is premised on Defendant's conclusion that it has valid setoff rights against Plaintiff. I need not address the various conditions and tests associated with Defendant's claimed setoff rights. I simply note that state law set off rights are quite often addressed in the context of bankruptcy law causes of action in adversary proceedings. Consequently, this factor weighs against abstention.
(2) The predominance of state law issues over bankruptcy issues.
Based upon a strict numerical comparison, Plaintiff's state law breach of contract claim for over $7 million certainly dominates the approximately $2 million preferential transfer claim. However, avoidance of a preferential transfer is a "core" bankruptcy proceeding. See 28 U.S.C. § 157(b)(2)(F). Therefore, this factor does not favor either party.
(3) Difficult or unsettled nature of the applicable state law.
Neither party's briefing papers provided me with the applicable New Jersey statutory or case law regarding breach of contract and damages for a breach. Consequently, there is no basis for me to conclude *31 that this dispute may involve a novel or difficult question of state law. This factor weighs against abstention.
(4) Related proceeding commenced in state court
As previously noted, neither party filed an action in the New Jersey state court system, or any other state court system, prior to Plaintiff's voluntary petition. It is my opinion, therefore, that this factor does not support abstention.
(5) Jurisdictional basis, if any, other than 28 U.S.C. § 1334.
I am unable to find any jurisdictional basis, outside of 28 U.S.C. § 1334, for keeping this proceeding in the bankruptcy court. Diversity jurisdiction under 28 U.S.C. § 1332 is inappropriate because both parties are incorporated in, and therefore citizens of, the State of Delaware. Because no jurisdictional basis exists other than 28 U.S.C. § 1334, this factor weighs in favor of abstention.
(6) Degree of relatedness of the proceeding to the chapter case
The turnover claim and preference claim are obviously related to the chapter case. At issue in this proceeding is roughly $10 million. Defendant asserts the right to setoff credits and receive a reduction for undelivered goods. Plaintiff contends that any applicable credits have been deducted and that all goods have been delivered. The money at issue, if Plaintiff is successful, would flow to the estate and directly benefit creditors generally because this is a liquidation case. This factor, therefore, weighs against abstention.
(7) Substance over form of an asserted "core" proceeding.
Plaintiff contends that its turnover claim is a "core" proceeding. Defendant disagrees and asserts that the turnover claim is nothing more than a state law breach of contract claim disguised in bankruptcy terms. See Doc. # 8 at 12 ("Here, despite the [Plaintiff's] attempt to style its complaint in bankruptcy buzz words, when stripped to its essence, the [Plaintiff's] complaint is simply an attempt to obtain money damages."). The Third Circuit has developed a two-prong test to determine whether a proceeding is really a "core" proceeding:
First, a court must consult [28 U.S.C.] § 157(b). Although § 157(b) does not precisely define "core" proceedings, it nonetheless provides an illustrative list of proceedings that may be considered "core." Second, the court must apply this court's test for a "core" proceeding. Under that test, "a proceeding is core (1) if it invokes a substantive right provided by title 11 or (2) if it is a proceeding, that by its nature, could arise only in the context of a bankruptcy case."
Halper v. Halper, 164 F.3d 830, 836 (3d Cir.1999) (citations omitted).
Plaintiff's turnover claim does not satisfy the Halper test. Although turnover orders are considered "core" under 28 U.S.C. § 157(b)(2)(E), Plaintiff's contention does not meet the second Halper prong. The substance of the claim at issue in Plaintiff's turnover count is a pre-petition state law contract claim and could arise under any context, not just in bankruptcy. Because that claim is not a right exclusively conferred by the Bankruptcy Code, this factor favors abstention.
(8) Feasibility of severing state law claims
The breach of contract cause of action could be severed from the other causes of action and dealt with separately in the state court. However, while it is feasible *32 to sever that state law claim, it is unadvisable as it would create judicial inefficiency.
(9) The burden on the Court's docket
Based solely on this Court's heavy docket this factor favors abstention. However, Defendant has presented no facts regarding how long it would take to reach a trial in the state court. Equally important, if, as discussed below, Defendant is entitled to a jury trial, this adversary proceeding will be tried in the District Court.
(10) The likelihood of forum shopping by one of the parties.
As long as venue is proper, a debtor's choice of forum is generally entitled to great weight. See In re Del. & Hudson Ry. Co., 96 B.R. 467, 467 (Bankr.D.Del.1988). By reason of 28 U.S.C. § 1409(a) venue for this adversary proceeding is properly here. Defendant has not submitted any evidence or provided a persuasive argument that would lead me to the conclusion that Plaintiff is forum shopping. Without some showing that Plaintiff is, in fact, seeking a better result by shopping around, this factor does not support abstention.
(11) The existence of a right to a jury trial
Defendant asserts that it is entitled to, and it has requested, a jury trial to determine whether the contested transfers were preferential and avoidable. This Court has no authority to conduct a jury trial. Assuming that Defendant is entitled to a jury trial, it can obtain appropriate relief by filing a motion to withdraw the reference pursuant to 28 U.S.C. § 157(d). This proceeding may end up in the District Court. Thus, I conclude that this factor is neutral with regard to abstention.
(12) The presence in the proceeding of nondebtor parties.
Toys R Us, Inc. is the only nondebtor party. This factor has a neutral effect on the decision.
CONCLUSION
Based on the above analysis, I find that on balance the factors weigh against granting Defendant's motion to abstain. From these findings, I conclude that discretionary abstention from this adversary proceeding, pursuant to 28 U.S.C. § 1334(c)(1), is inappropriate.
NOTES
[1] 11 U.S.C. §§ 101 et. seq. is hereinafter referred to as "§ ___". All other titles of the United States Code will be cited as "___ U.S.C. § ___".
| {
"pile_set_name": "FreeLaw"
} |
ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
August 15,2011
The Honorable Scott Brumley Opinion No. GA-0881
Potter County Attorney
500 South Fillmore Street, Room 303 Re: Proper method of calculating interest and penalties
Amarillo, Texas 79101 on the residence homestead of an elderly or disabled
person whose property taxes have been deferred under
section 33.06 of the Tax Code (RQ-0960-GA)
Dear Mr. Brumley:
You ask about the proper method of calculating interest and penalties on the residence
homestead of an elderly or disabled person whose property taxes have been deferred under section
33.06 of the Tax Code. l See TEX. TAX CODE ANN. § 33.06 (West 2008). Your request relates to the
collection of an existing debt.
Section 33.01 of the Tax Code provides for the general assessment of penalties and interest
on property taxes that remain unpaid after their due date. Id. § 33.01(a).2 A "delinquenttax incurs
a penalty of six percent of the amount of the tax for the first calendar month it is delinquent plus one
percent for each additional month or portion of a month the tax remains unpaid prior to July l." Id.
If the tax is still delinquent on July I, it incurs a "total penalty of twelve percent," the maximum
penalty provided by statute. Id. Moreover, a delinquent tax accrues interest at the rate of one percent
per month or portion of a month for as long as the tax remains unpaid, for a maximum of twelve
percent per annum. Id. § 33.01(c).3
Section 33.06 of the Tax Code permits an elderly or disabled person to defer the collection
of taxes on his or her residence homestead. Id. § 33.06(a). This deferral continues in effect so long
as the taxpayer qualifies for the deferral by maintaining his or her residence as the homestead. Id.
If the individual dies, the deferral "continues in effect until the 181 st day after the date the surviving
ILeller from Honorable Scott Brumley, Potter County Attorney, to Honorable Greg Abbott, Attorney General
of Texas (Apr. 11,2011), https:!!www.oag.state.tx.us!opinlindex_rq.shtml ("Request Letter").
2The tax is delinquent unless paid prior to February 1. TEx. TAX CODE ANN. § 31.02(a) (West 2008).
3Additional penalties may be assessed by the appraisal district pursuant to sections 33.07(a) and 33.08(b). !d.
§§ 33.07(a), .08(b).
The Honorable Scott Brumley - Page 2 (GA-OSSl)
spouse of the individual no longer owns and occupies the property as a residence homestead,"
provided (I) the property was the residence homestead of the deceased spouse when he or she died;
(2) the surviving spouse was 55 years or more when the deceased spouse died; and (3) the property
was the residence homestead ofthe surviving spouse when the deceased spouse died. [d. § 33.06(f).
A number of benefits accrue to a person who qualifies for a deferral under section 33.06. The
interest rate on uncollected taxes is capped at eight percent per annum rather than the twelve percent
prescribed by section 33.01. [d. § 33.06(d). Furthermore, the penalty provided by section 33.01 "is
not incurred" during the deferral period. [d. 4 You indicate that one interpretation suggests that after
the deferral period expires, interest and penalties for the entire period of the delinquency are
calculated under section 33.01, "as if the deferral was never in place." Request Letter at 2. Another
view is that normal penalty and interest under section 33.01 are calculated until the deferral becomes
effective as well as subsequent to its termination, but that the calculation of interest-eight percent
per annum-and penalties-none-is preserved for the entire period of the deferral. [d.
In construing a statute, the objective of a court, and hence this office, is "to determine and
give effect to the Legislature'S intent." Leland v. Brandal, 257 S.W.3d 204,206 (Tex. 200S). A
court looks "first to the statute's language to determine that intent." !d. "If the statute's language
is unambiguous, its plain meaning will prevail." [d. Section 33.06 specifically provides that
"[iJnterest and penalties that accrued or that were incurred or imposed under Section 33.01 or 33.07
before the date the individual files the deferral affidavit under Subsection (b) ... are preserved."
TEX. TAX CODE ANN. § 33.06(d) (West 200S) (emphasis added). However, "[aJ penalty under
Section 33.01 is not incurred during a deferral or abatement period." ld. The clear implication is
that the lower interest rate imposed during the deferral period, and the absence of penalty during that
time, remains effective after the deferral period ends for the period of the deferral. It follows that
the final calculation of taxes owed must be based upon the higher rate and penalty for any period
before the deferral begins and after it ends. But for the period of deferral, section 33.06 prevails
when the final calculation is made.
We conclude that the calculation of interest and penalties on the homestead of an elderly or
disabled person whose taxes have been deferred is governed by section 33.06 of the Tax Code for
the entire period during which the deferral is effective.
4The additional penalty permitted by section 33.07 may be imposed "only if the taxes for which collection is
deferred or abated remain delinquent on or after the 181st day after the date the deferral or abatement period expires:'
Id. § 33.06(d).
The Honorable Scott Brumley - Page 3 (GA-OSS!)
SUMMARY
Calculation of interest and penalties on the homestead of an
elderly or disabled person whose taxes have been deferred is
governed by section 33.06 of the Tax Code for the entire period
during which the deferral is effective.
Very truly yours,
~
Attorney General of Texas
DANIEL T. HODGE
First Assistant Attorney General
DAVID J. SCHENCK
Deputy Attorney General for Legal Counsel
JASON BOATRIGHT
Chair, Opinion Committee
Rick Gilpin
Assistant Attorney General, Opinion Committee
| {
"pile_set_name": "FreeLaw"
} |
37 F.3d 1506NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.
SAUSE BROTHERS OCEAN TOWING CO., INC., a corporation, asOwner/Charter; T/V OCEAN SERVICE; Plaintiffs-Appellees,v.David LeBLANC, et al. (LeBlanc claimants), Claimants-Appellants.
No. 93-35110.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted July 14, 1994.Decided Oct. 13, 1994.
1
Before: TANG, FERGUSON and WIGGINS, Circuit Judges
2
MEMORANDUM*
3
David LeBlanc and 288 other claimants (collectively "Claimants" or "Appellants") appeal the district court's denial of their request to enjoin a Canadian action filed by Sause Brothers Ocean Towing company ("Sause"). They argue that the district court abused its discretion because: (1) Sause should be bound to litigate only in the District of Oregon because Sause forced Appellants to litigate there; (2) the "saving to suitors" clause in 28 U.S.C. Sec. 1333 gives the Appellants a right to litigate where they choose; (3) Sause's suit in British Columbia forces Appellants into one forum, the very result rejected by the district court; (4) Sause's declaratory action is barred by the existence of Sause's Limitation Act remedy; (5) the issues Sause seeks to litigate in the Canadian Action were fully litigated in the district court or could have been; and (6) a federal court has authority in certain circumstances to enjoin parties before it from litigating in a foreign country. Sause argues that Appellants lacked standing in the district court and now lack standing in this court. We affirm.
4
Sause owned a tug, "Ocean Service," and a barge, "Nestucca." The two vessels collided off the coast of Washington state. Oil escaped from the Nestucca as a result of the collision, some of which washed onto the beaches of Vancouver Island, Canada. LeBlanc and 288 other Canadians responded by cleaning up the beaches and rescuing wildlife.
5
A few months later, Sause filed an action in the United States District Court for the District of Oregon. In the action, Sause sought a declaration that its liability was limited under 46 U.S.C.Appx. Sec. 183, part of the Limitation of Liability Act (Limitation Act). The Limitation Act "permits a shipowner not personally at fault to limit his liability to his interest in his ship." Churchill v. F/V Fjord, 5 F.3d 374, 376 (9th Cir.1993) (internal quotations omitted). Sause also sought an injunction, pursuant to the Limitations Act and Rule F(3) of the Federal Rules for Certain Admiralty and Maritime claims (Supp.R.), restraining the commencement or prosecution of any other proceeding dealing with claims arising out of the collision. The district court granted Sause the injunction requested, and consequently, Claimants were obliged to file their claims in the District of Oregon.
6
A bench trial was held. The district court determined that the Ocean Service's crew's negligent acts caused the oil spill. In re Sause Bros. Ocean Towing, 769 F.Supp. 1147, 1151-55 (D.Or.1991). It also determined that Sause had knowledge and privity of those negligent acts. Id. at 1155. For these reasons, the court determined that the Limitation Act did not apply. Id. The court did not determine whether Sause was liable to any of the parties who had filed claims in the district court.
7
Upon learning that the Limitation Act did not apply, Claimants moved the district court to dissolve the injunction limiting their rights to sue Sause in other forums and by means other than filing the claims. The district court also dismissed Sause's Limitation Act complaint as to Claimants, but held Claimants' claims in abeyance while they attempted to file in other forums.
8
A few days later, Sause sued Claimants in British Columbia (the "Canadian Action"), seeking a declaration that Sause is not liable to Claimants. In response, Claimants requested the district court to enjoin prosecution of the Canadian Action.1 The district court refused their request. Claimants timely appeal.
I. Jurisdictional Issues
9
Sause contends that Appellants lack standing to appeal. The district court dismissed Sause's Limitation of Liability Act (Limitation Act) complaint against Appellants. See 46 U.S.C. Appendix Sec. 183; Supplemental Rules for Certain Admiralty and Maritime Claims (Supp.R.) F. Sause contends that, because its complaint against Appellants was dismissed, Appellants' legal rights can no longer be affected in the district court. Sause is incorrect. Though the district court dismissed Sause's complaint, the court did not dismiss or resolve Appellants' claims against Sause, which were filed in the district court at Sause's insistence. The court retains jurisdiction to decide claims filed in a Limitation Act action even after finding that a shipowner is not entitled to limitation, an injunction, or any of the other relief Sause requested in its complaint in this case. Hartford Accident & Ind. Co. v. Southern Pac. Co., 273 U.S. 207, 216-20 (1927); see also The Silver Palm, 94 F.2d 776, 780 (9th Cir.1937) ("[Claimants] should be free to remain in the limitation proceeding or sue elsewhere."). Thus, until Appellants drop their claims, the district court retains jurisdiction over these claims and over the Appellants who filed them, and Appellants have standing to raise arguments affecting these claims. Moreover, Appellants are aggrieved by the district court's order allowing Sause to proceed against them in Canada.
10
At oral argument, Appellants incorrectly argued that this case was moot because the Washington state court suit was dismissed and no forum remains in the United States in which Appellants wish to litigate. "A claim is moot if the issues are no longer live or the parties lack a legally cognizable interest in the outcome." EEOC v. Hacienda Hotel, 881 F.2d 1504, 1519 (9th Cir.1989). Here, the issues are live, and Appellants retain a legally cognizable interest in the outcome. That Appellants no longer wish to press the issues does not render them moot.
11
Alternatively, Appellants proposed at oral argument to abandon their appeal. Sause objected. To date, the parties have been unable to resolve their differences regarding settlement of this appeal. A voluntary dismissal does not appear likely. On this state of the record, we elect not to resolve the parties' differences regarding settlement.
II. Merits
12
The district court's decision not to enjoin the Canadian action is reviewed for an abuse of discretion or application of erroneous legal principles. See Dexter v. Kirschner, 984 F.2d 979, 982 (9th Cir.1992). In this case, the district court applied correct legal principles and did not abuse its discretion.
13
Appellants fail to show how Sause acted inequitably. While the Supp.R. F(3) injunction was in place, Sause probably could not sue outside the District of Oregon. Manufacturers' Finance Co. v. McKey, 294 U.S. 442, 449 (1935). But when the district court determined that Limitation Act relief was unavailable, grounds for the Supp.R. F(3) injunction disappeared, The Silver Palm, 94 F.2d at 780, the parties were placed in their original positions, and Appellants were free to sue Sause outside the District of Oregon. Any argument that Sause should be reciprocally bound to the District of Oregon also disappeared. Moreover, Appellants have shown no prejudice from having to litigate in British Columbia.
14
The "saving to suitors" clause, 28 U.S.C. Sec. 1333, does not help Appellants. Appellants' right thereunder to choose a forum is not absolute. That right does not preempt Sause's right to choose a forum, whether Sause's right comes from state or federal common law or from Canadian law. E.g., Torch, Inc. v. Theriot, 727 F.Supp. 1048, 1051 (E.D.La.1990) ("The Court ... has found no authority for extending [the clause] to preclude actions, either declaratory or otherwise, from being brought....").
15
The district court's ruling does not allow Sause to do indirectly what it could not do directly, in a manner contrary to law. Sause has not forced Appellants into one forum. Rather, Sause has exercised its rights to sue Appellants in Canada and to argue forum non conveniens in Washington state court. That the effect of Sause's exercise of its rights and the Washington state court's discretionary decision regarding forum non conveniens is to force Appellants to defend themselves in Canada does not make the district court's ruling impermissible.
16
Appellants incorrectly rely on a limitation on federal declaratory actions. No "special statutory proceeding," Fed.R.Civ.P. 57 adv. comm. notes, is in place to adjudicate the rights asserted in Canada. "[T]he proceeding to limit the owner's liability is separate and distinct from the common-law remedy [of the claimant], or the question of liability in admiralty." The Norco, 66 F.2d 651, 652 (9th Cir.1933), aff'd sub nom. Larsen v. Northland Transp. Co., 292 U.S. 20 (1934). Further, the doctrine of election of remedies does not apply here because the Limitation Act "remedy" was ultimately held to be unavailable. Sause could not elect a remedy that was unavailable. Robinson v. Chicago Great W. Ry. Co., 144 F.Supp. 713, 715-16 (W.D.Mo.1956).
17
Res judicata does not bar the Canadian suit. In The Norco, we held that "the judgment of the common-law court fixing the amount of the damage and the responsibility of the [ship]owner ... is not res adjudicata as to the right of the owner to limit his liability in the subsequent proceeding in an admiralty court, where the question was not raised in the common-law action." 66 F.2d at 652. If res judicata does not bar an owner's limitation action even though limitation could have been raised during a prior suit by the claimant to establish the owner's liability, then res judicata does not bar a suit on the claim merely because the claim could have been brought during a prior limitation action. Any holding to the contrary would undermine our ruling in The Silver Palm that a claimant is free to sue in state court once the admiralty court determines that the Limitation Act does not apply. 94 F.2d at 780. And if res judicata does not bar a suit on a claim against the owner after a limitation action has failed, it can not bar the owner's action for a declaration that such claim is invalid.
18
Though a federal court has authority to enjoin a foreign action between parties before it, Seattle Totems Hockey Club, Inc. v. National Hockey League, 652 F.2d 852, 855 (9th Cir.1981), cert. denied sub nom. Northwest Sports Enter., Ltd. v. Seattle Totems Hockey Club, Inc., 457 U.S. 1105 (1982), no injunction is warranted here. Seattle Totems is distinguishable. No federal or state policy is at issue. The Canadian suit has not been shown to be vexatious or oppressive but convenient: all the witnesses and defendants reside in British Columbia. Sause has sued in the forum closest to Appellants, within Appellants' own country, where the claims arose. Because Sause's Limitation Act complaint was dismissed and Appellants' claims are in abeyance, litigation in Canada does not threaten the jurisdiction of the district court as in Seattle Totems. Finally, comity recommends against enjoining the Canadian proceedings.
19
AFFIRMED.
*
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3
1
While Claimant's request for an injunction of the Canadian Action was pending, Claimants filed a class action suit against Sause in Washington state superior court. The state court granted Sause's motion to dismiss on forum non conveniens grounds because Sause had already submitted to the jurisdiction of a superior forum in British Columbia
| {
"pile_set_name": "FreeLaw"
} |
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted May 29, 2018*
Decided June 1, 2018
Before
FRANK H. EASTERBROOK, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
AMY C. BARRETT, Circuit Judge
No. 17‐3062
JUSTIN H. KNOPP, Appeal from the United States
Plaintiff‐Appellant, District Court for the Northern District
of Illinois, Eastern Division.
v.
No. 16‐CV‐2330
WELLS FARGO BANK, N.A., et al.,
Defendants‐Appellees. Sara L. Ellis,
Judge.
O R D E R
After Justin Knopp defaulted on his home mortgage, Wells Fargo sued for
foreclosure in state court. That action remains pending, and Knopp alleges in this
federal lawsuit that “the entire account is in error” because of unlawful assignments of
his loan by various entities. Knopp’s federal complaint asserts violations of the Real
Estate Settlement Procedures Act, 12 U.S.C. § 2605; the Racketeer Influenced and
* We have agreed to decide this case without oral argument because the briefs
and record adequately present the facts and legal arguments, and oral argument would
not significantly aid the court. See FED. R. APP. P. 34(a)(2)(C).
No. 17‐3062 Page 2
Corrupt Organizations Act, 18 U.S.C. § 1962; the False Claims Act, 31 U.S.C. § 3729; and
42 U.S.C. §§ 1985 and 1986. The district court granted the defendants’ motion to dismiss
Knopp’s original complaint for failure to state a claim and, once Knopp’s efforts to
amend his complaint proved futile, dismissed the suit with prejudice. The district court
denied Knopp’s motion to reconsider as well as his motion for leave to file a second
amended complaint.
We struggle to glean from Knopp’s appellate submissions any meaningful
argument for overturning the district court’s judgment. See FED. R. APP. P. 28(a)(8)(A);
Ball v. City of Indianapolis, 760 F.3d 636, 645 (7th Cir. 2014); Anderson v. Hardman, 241 F.3d
544, 545–46 (7th Cir. 2001). Nevertheless, generously construing his pro se brief,
Anderson, 241 F.3d at 545, we can discern one issue for review—Knopp contends that he
adequately pleaded a violation of the Real Estate Settlement Procedures Act, 12 U.S.C.
§ 2605(e)(2), when he alleged that the defendants refused to answer written inquiries
about the validity of his loan documents. But as the district court correctly recognized,
this claim fails, among other reasons, because the statute mandates responses to
inquiries about loan servicing; it is not a means of disputing a debt’s validity. See Perron
ex rel. Jackson v. J.P. Morgan Chase Bank, N.A., 845 F.3d 852, 856–57 (7th Cir. 2017).
And because Knopp could not have cured his complaint’s legal deficiencies, the district
court did not abuse its discretion in denying Knopp’s request to file a second amended
complaint. See Tate v. SCR Med. Transp., 809 F.3d 343, 346 (7th Cir. 2015).
That brings us to Knopp’s motion for sanctions, which is based on appellees’
counsel’s delay in mailing Knopp a paper copy of the appellees’ response brief.
We deny the motion for two reasons. First, counsel for appellees has explained that he
mistakenly thought that he could serve Knopp electronically and that he mailed a paper
copy of the brief as soon as he learned of his mistake. Such mistakes are unfortunate but
not rare when counsel are dealing with opposing parties who are pro se, and sanctions
need not be imposed for such mistakes. Second, Knopp suffered no prejudice from the
delayed service because he apparently obtained an electronic copy of the brief from the
court’s docket within a few days of its filing. See Salmeron v. Enter. Recovery Sys., Inc.,
579 F.3d 787, 797 (7th Cir. 2009) (recognizing that courts may consider extent of
prejudice to opposing party in determining appropriate sanction). If Knopp had needed
more time because of the delayed service, he needed only to ask; extensions of time are
routine in such instances.
AFFIRMED.
| {
"pile_set_name": "FreeLaw"
} |
907 F.2d 144
N.L.R.B.v.Hamilton Standard Division of United Technology
NO. 90-4014
United States Court of Appeals,Second Circuit.
MAY 08, 1990
1
Appeal From: N.L.R.B.
2
ENFORCED.
| {
"pile_set_name": "FreeLaw"
} |
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 16a0345n.06
No. 15-1561
UNITED STATES COURT OF APPEALS FILED
FOR THE SIXTH CIRCUIT Jun 22, 2016
DEBORAH S. HUNT, Clerk
ALYSON LUUKKONEN,
Plaintiff-Appellant,
v.
ON APPEAL FROM THE UNITED
COMMISSIONER OF SOCIAL STATES DISTRICT COURT FOR THE
SECURITY, WESTERN DISTRICT OF MICHIGAN
Defendant-Appellee.
________________________________/
BEFORE: COLE, Chief Judge; CLAY and GIBBONS, Circuit Judges.
CLAY, Circuit Judge. Plaintiff Alyson Luukkonen (“Plaintiff”) appeals from the
district court’s order upholding the Commissioner of Social Security’s (“Commissioner”) denial
of Plaintiff’s application for Supplemental Security Income (“SSI”) under Title XVI of the
Social Security Act, 42 U.S.C. §§ 1381–1383f. For the reasons discussed below, we AFFIRM.
BACKGROUND
Plaintiff filed an application for SSI on January 24, 2011. At that time, she was twenty-
four years old and had no prior work experience. Her claim for disability was supported by
medical records, reports from physicians and psychologists, and standard forms and
questionnaires prepared shortly after her application was submitted. For example, Plaintiff filled
out a “Function Report” form as part of her application. In that report, Plaintiff asserted that she
suffered from, inter alia, chronic pain, difficulty concentrating, short-term memory loss,
No. 15-1561
migraines, poor sleep, depression, irritable bowel syndrome (“IBS”), chronic bladder infections,
and allergies. She also stated that, depending on the severity of her symptoms at any particular
time, she had trouble performing various physical tasks—e.g. lifting, standing, reaching, and
walking—and that she sometimes required assistance with dressing and bathing. She also
reported difficulty with following instructions.
Plaintiff attributed many of her physical and mental limitations to fibromyalgia.1 She
also claimed to suffer from body dysmorphic disorder (“BDD”),2 which manifested as a
reluctance to socialize, constant mirror checking, compulsive behavior, a need to wear
sunglasses around strangers, and low self-esteem. On the other hand, when she was feeling well,
Plaintiff enjoyed working on arts and crafts, “surfing” the internet, and watching television. She
also stated that she had a boyfriend and that she kept in touch with friends using her computer.
She would, on occasion, do her own shopping.
In April 2011, at the request of Michigan’s Disability Determination Service, Plaintiff
was evaluated by consultative psychologist Dr. Steve Geiger. During her evaluation, Plaintiff
reported the same symptoms that were described in her Function Report. Plaintiff also told Dr.
Geiger that she lived with her grandparents and that they did her laundry, housekeeping, and
meal preparation, and that they were her sole source of financial support. Dr. Geiger reported
that Plaintiff’s clothing was neat and clean, and her grooming and hygiene were good. She had
good contact with reality, was pleasant, and was oriented to person, place, and time. Dr. Geiger
1
The Social Security Administration describes fibromyalgia as “a complex medical
condition characterized primarily by widespread pain in the joints, muscles, tendons, or nearby
soft tissues that has persisted for at least 3 months.” SSR 12-2p, 2012 WL 3104869, at *2 (July
25, 2012).
2
BDD is “a mental disorder in which a normal-appearing person is either preoccupied
with some imagined defect in appearance or is overly concerned about some very slight physical
anomaly.” DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 549 (32d ed. 2012).
2
No. 15-1561
also reported Plaintiff’s performance on a number of simple tests: Plaintiff “remembered 7 digits
forward and 4 digits backward;” she “remembered 2 of 3 objects after three-minute delay;” she
could perform basic mathematical calculations, including counting backwards from 100 by 7s;
she could explain common proverbs. (R. 10-5, PageID 504–05.) At the conclusion of his report,
Dr. Geiger opined:
I believe [Plaintiff] could understand and follow simple instructions. She could
perform simple routine tasks. She would have considerable difficulty working in
any environment where she had to have interactions with others. She is extremely
self-conscious about the way she looks [and is] very worried about the judgments
other people make about her face and body. She would have significant difficulty
handling work pressure and stress and would have difficulty effectively
communicating with coworkers, customers and supervisors. . . . She is in need of
ongoing psychiatric and psychological treatment.
(Id. at 505.)
On May 9, 2011, Plaintiff visited Dr. Carol Beals, a rheumatologist, for an initial
investigational visit. (R. 10-5, PageID 522.) Plaintiff’s chief complaints at that examination
were “[f]ibromyalgia and all over pain.” Dr. Beals’ report from that visit described Plaintiff as a
“delightful, very pleasant 25-year-old female who is alert, oriented and appropriate in all
manners. She [was] wearing sunglasses, although she did take them off when” requested. (Id. at
524.) Dr. Beals observed that Plaintiff was 5’5” tall, weighed 174 pounds, and appeared to have
hypermobility in all of her joints. Plaintiff told Dr. Beals that she had recently lost 140 pounds
of weight over 15 months, and that she had “been exercising on the stationary bike every day.
Sometimes, she does this for hours. . . . She has used a treadmill from time to time for exercise.”
(Id. at 523.) At the conclusion of her report, Dr. Beals opined that, based on her initial
evaluation of Plaintiff, it appeared that she did “meet the criteria for fibromyalgia syndrome.”
(Id. at 525.)
3
No. 15-1561
Plaintiff soon after learned that Michigan’s Disability Determination Service had denied
her claim for SSI. Plaintiff retained an attorney and submitted a request to the Social Security
Administration (“SSA”) for a hearing by an administrative law judge (“ALJ”).
On July 20, 2011, Plaintiff returned to Dr. Beals. In a report prepared after that visit, Dr.
Beals wrote:
Patient comes in today for a target visit for disability appointment. . . . She is here
to discuss disability since she does not feel that she can work and she has been
denied disability . . . . I will need to talk with her lawyer . . . and see what [is] the
best approach. I think that the psychiatric condition is the primary reason that she
cannot work in the public and that psychiatric evaluation would be most
appropriate.
(R. 10-5, PageID 558–59.) The report also noted that Plaintiff refused to be weighed during this
visit, and that Plaintiff’s “hypermobility syndrome, fibromyalgia, and somatic dysfunction have
not changed since her initial evaluation.” (Id. at 559.)
On July 20, 2011—the same day as Plaintiff’s visit to Dr. Beals—Plaintiff’s counsel sent
a letter to Chief ALJ Thomas Walters. In that letter, Plaintiff’s counsel asserted that Dr. Geiger’s
April 2011 report, discussed above, “failed to provide specific assessments relative to the
functioning of” Plaintiff. (R. 10-2, PageID 187.) The letter thereafter requested that Judge
Walters issue a subpoena requiring Dr. Geiger to testify at Plaintiff’s hearing before the ALJ, or
that Dr. Geiger be ordered to answer interrogatories addressing the alleged deficiencies in his
report.
On August 11, 2011, Plaintiff visited Dr. Tatyana Sigal, a psychiatrist that Plaintiff had
previously seen between 2004 and 2006. During that visit, Plaintiff stated that she felt “really
ugly” and that she could not take care of herself. Dr. Sigal opined that Plaintiff: was alert and
oriented to person, place, and time; was pleasant and cooperative; made good eye contact; had a
well-organized thinking process with no signs of psychosis; and had “fair” levels of attention,
4
No. 15-1561
concentration, memory, insight, and judgment. Dr. Sigal noted that Plaintiff’s mood was
depressed, but stable, and that her affect was broad and congruent with her mood. On August
23, 2011, Dr. Sigal completed a two-page mental residual functional capacity (“RFC”)3
assessment form, in which Dr. Sigal rated Plaintiff’s limitations in each of twenty categories of
mental ability. Dr. Sigal rated Plaintiff to be: (1) “not significantly limited” in three categories;
(2) “moderately limited” in seven categories; and (3) “markedly limited” in ten categories. This
form, however, had no accompanying explanation of Dr. Sigal’s ratings.
Plaintiff’s administrative hearing was held on March 1, 2012; Paul Jones was the
presiding ALJ. At that hearing, Plaintiff testified that she was disabled due to chronic pain,
fatigue, and fear of being around others. She stated that she slept for more than twelve hours a
day. She also testified that she had sporadic migraines and the common symptoms of IBS.
Upon questioning by the ALJ, Plaintiff admitted that she was able to graduate from high school
despite her illnesses and fear of being around others. A vocational expert was thereafter called to
testify regarding Plaintiff’s ability to find work. The ALJ asked the expert whether there were
jobs for someone with Plaintiff’s educational background and lack of prior work experience,
assuming that Plaintiff had the RFC to perform unskilled, medium work4 limited to simple tasks
with only occasional public interaction. The expert opined that several potential jobs existed for
someone with those characteristics, including box bender, sweeper, and production helper.
3
SSA regulations define RFC as “the most [a claimaint] can still do despite [her]
limitations.” 20 C.F.R. § 404.1545(a)(1).
4
“Medium work involves lifting no more than 50 pounds at a time with frequent lifting
or carrying of objects weighing up to 25 pounds.” 20 C.F.R. § 416.967(c).
5
No. 15-1561
On March 8, 2012, the ALJ issued a decision denying Plaintiff’s claim for SSI. The ALJ
applied the traditional five-step process for evaluating disability benefits claims.5 At step one,
the ALJ determined that Plaintiff had not engaged in any substantial activity since the date of her
application. At step two, the ALJ found that Plaintiff’s obesity, affective disorder, BDD, and
fibromyalgia constituted severe impairments. The ALJ noted, however, that Dr. Beals’
conclusion that Plaintiff suffered from fibromyalgia was necessarily based on Plaintiff’s
subjective complaints of pain and tenderness in certain places on her body. The ALJ also found
that Plaintiff’s migraines were not a severe impairment because they could be controlled by
medication. At step three, the ALJ found that Plaintiff’s impairments did not match the severity
of the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. See 20 C.F.R. §§
416.920(a)(4)(iii), 416.920(d).
The ALJ then determined that Plaintiff retained the RFC necessary “to perform medium
work, as defined in 20 CFR [§] 416.967(c) . . . except she can only do simple, routine, and
repetitive tasks, with only occasional interaction with the public.” (R. 9-2, PageID 39.) The ALJ
opined: “I find [Plaintiff’s] medically determinable impairments could reasonably be expected to
cause [her] alleged symptoms, but her statements concerning the intensity, persistence, and
limiting effects of these symptoms are not credible to the extent they are inconsistent with the
above residual functional capacity assessment.” (Id. at 40.) The adverse credibility
5
Because Plaintiff does not argue that the ALJ inappropriately applied the five-step
process, that process is not discussed in detail below. Briefly summarized, however: in steps one
through four, a claimant bears the burden of demonstrating: (1) that she did not engage in
substantial gainful activity since filing her claim; (2) that she had a severe impairment or
combination of impairments; (3) those impairments met or medically equaled the impairments
enumerated in SSA regulations; OR (4) those impairments prevented her from performing her
past relevant work. See, e.g., Jones v. Comm’r of Soc. Sec., 336 F.3d 469, 474 (6th Cir. 2003);
20 C.F.R. § 416.920(b)–(f). At step five, the burden shifts to the Commissioner to prove the
existence of “a significant number of jobs in the economy that accommodate the claimant’s
residual functional capacity (determined at step four) and vocational profile.” Id.
6
No. 15-1561
determination was largely based on the lack of objective evidence supporting Plaintiff’s
subjective assertions of pain and fear of social interaction. The ALJ also rejected Dr. Geiger’s
and Dr. Sigal’s conclusions regarding the work-preclusive severity of Plaintiff’s psychological
impairments because objective evidence in the record undermined those conclusions.
At step four, the ALJ determined that because Plaintiff had no past relevant work
experience, it could not be determined whether she had the RFC to continue such past work.
Finally, the ALJ concluded that based on the vocational expert’s testimony, Plaintiff was
“capable of making a successful adjustment to . . . work that exists in significant numbers in the
national economy.” (Id. at 41.)
Plaintiff’s request for review of the ALJ’s decision with the SSA’s Appeals Council was
denied on August 13, 2013, thus making the ALJ’s decision the final decision of the Social
Security Commissioner. See 20 C.F.R. § 416.1481. On October 10, 2013, Plaintiff filed a
complaint in federal district court seeking review of the SSA’s denial of her claim for SSI.
Plaintiff’s primary arguments before the district court were: (1) the ALJ failed to properly
evaluate Plaintiff’s fibromyalgia, polycystic ovarian syndrome (“PCOS”),6 and psychiatric
conditions; and (2) the ALJ erred by failing to issue a subpoena for Dr. Geiger. Plaintiff’s case
was assigned to a magistrate judge, who issued a report and recommendation affirming the
Commissioner’s denial of Plaintiff’s application. Plaintiff filed objections to the report and
recommendation, but the district court adopted the report and recommendation in its entirety.
Plaintiff timely appealed.
6
Plaintiff does not reassert her arguments regarding PCOS in this appeal.
7
No. 15-1561
DISCUSSION
I. The ALJ Properly Assessed Plaintiff’s Fibromyalgia
“The court of appeals reviews the district court’s conclusion in social security cases de
novo, and directly reviews the [Commissioner’s] findings and conclusions as if it were the first
reviewing court.” Crum v. Sullivan, 921 F.2d 642, 644 (6th Cir. 1990). The Commissioner’s
final decision must be affirmed if it “is supported by substantial evidence and was made pursuant
to proper legal standards.” Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007);
see also 42 U.S.C. § 405(g). Substantial evidence is “such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389,
401 (1971) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). “When deciding
. . . whether substantial evidence supports the ALJ’s decision, we do not try the case de novo,
resolve conflicts in evidence, or decide questions of credibility.” Bass v. McMahon, 499 F.3d
506, 509 (6th Cir. 2007); see also Bogle v. Sullivan, 998 F.2d 342, 347 (6th Cir. 1993) (“If it is
supported by substantial evidence, the [Commissioner’s] determination must stand regardless of
whether the reviewing court would resolve the issues of fact in dispute differently.”). Finally,
any questions of law are reviewed de novo. McClanahan v. Comm’r of Soc. Sec., 474 F.3d 830,
833 (6th Cir. 2006).
On appeal, Plaintiff argues that the ALJ incorrectly analyzed her fibromyalgia in two
ways: first, the ALJ failed to explicitly analyze her fibromyalgia under Social Security Ruling
(“SSR”) 12-2p; second, the ALJ improperly dismissed Plaintiff’s diagnosis of fibromyalgia as
necessarily dependent upon Plaintiff’s own subjective reports of pain. We address these alleged
errors in turn.
8
No. 15-1561
A. SSR 12-2p
On July 25, 2012, the SSA released SSR 12-2p (“the Ruling”), which “provides guidance
on how we develop evidence to establish that a person has a medically determinable impairment
of fibromyalgia, and how we evaluate fibromyalgia in disability claims . . . .” SSA 12-2p, 2012
WL 3104869, at *1 (July 25, 2012). To that end, SSR 12-2p describes criteria for establishing
that a person has a medically determinable impairment (“MDI”) of fibromyalgia, id. at *2–3, the
sources of evidence the ALJ may look to, id. at *3–4, and how a claimant’s subjective assertions
of pain and functional limitations are evaluated, id. at *4. The Ruling also states that
fibromyalgia should be analyzed under the traditional five-step evaluation process used for
analyzing other claims for SSI. Id. at *5–6. Importantly, as Plaintiff concedes in her brief before
this Court, SSR 12-2p “is merely a binding interpretation of that which was already lawfully in
effect.” (Pl.’s Br. at 21.) In other words, SSR 12-2p merely provides guidance on how to apply
pre-existing rules when faced with a claimant asserting disability based on fibromyalgia.
Plaintiff argues that “the Commissioner failed to apply SSR 12-2p in denying the
application for benefits.” (Id. at 19.) Below, the district court observed that “Plaintiff fails to
explain how the ALJ’s RFC assessment contravenes SSR 12-2p or how the Commissioner’s final
decision should have differed in light of SSR 12-2p.” (R. 24, PageID 655.) We find the same is
true in this appeal. In addition to the above-quoted assertion that the ALJ “failed to apply SSR
12-2p,” Plaintiff ambiguously asserts that the ALJ “failed to enter into any discussion of the
factors required by law and the SSR.” (Pl.’s Br. at 21.) Yet, Plaintiff does not state which
“factors” were not discussed.
To the extent these vague arguments suggest that the ALJ failed to explicitly apply 12-
2p’s diagnostic criteria for determining whether a claimant has an MDI of fibromyalgia, such
9
No. 15-1561
error—to the extent it exists—is harmless given that the ALJ concluded (1) that Plaintiff did
have fibromyalgia, and (2) that her fibromyalgia constituted a “severe impairment” under the
second step of the five-step analysis.7 To the extent Plaintiff argues that the ALJ failed to
properly apply SSR 12-2p’s guidelines for evaluating a claimant’s personal statements about the
severity of her own symptoms, that argument is also unavailing. Section IV of SSR 12-2p states
that when evaluating a claimant’s statements, ALJs must “follow the two-step process set forth
in our regulations and in SSR 96-7p.”8 SSR 12-2p, 2012 WL 3104869, at *5. In this case, the
ALJ cited SSR 96-7p and explicitly applied the two-step process described therein. Finally, as
discussed above, the ALJ applied the standard five-step process for evaluating all disability
claims. In sum, although the ALJ did not explicitly cite SSR 12-2p, it nevertheless applied the
Ruling’s principles. That is all that is required under our precedents. McClanahan, 474 F.3d at
7
These facts also belie Plaintiff’s unsupported assertions that “the ALJ obviously fails to
accept any legitimacy to the medical diagnosis involving fibromyalgia” (Pl.’s Br. at 21), and that
the ALJ “ignor[ed] a diagnosis of fibromyalgia.” (Id. at 24.)
8
Under this two-step process:
[1.] There must be medical signs and findings that show the person has an MDI(s)
which could reasonably be expected to produce the pain or other symptoms
alleged.
...
[2.] Once an MDI is established, we then evaluate the intensity and persistence of
the person’s pain or any other symptoms and determine the extent to which the
symptoms limit the person’s capacity for work. If objective medical evidence
does not substantiate the person’s statements about the intensity, persistence, and
functionally limiting effects of symptoms, we consider all of the evidence in the
case record, including the person’s daily activities, medications or other
treatments the person uses, or has used, to alleviate symptoms; the nature and
frequency of the person’s attempts to obtain medical treatment for symptoms; and
statements by other people about the person’s symptoms.
SSR 12-2p, 2012 WL 3104869, at *5.
10
No. 15-1561
834 (“Because the ALJ conducted the analysis required by the Ruling, his failure to mention it
by name is not fatal to the decision.”).9
B. The ALJ’s alleged rejection of Plaintiff’s fibromyalgia
As we noted above, the ALJ found that Plaintiff did have fibromyalgia, and that her
fibromyalgia constituted a severe impairment. In so finding, the ALJ primarily relied on the
opinion of Dr. Beals and her determination that Plaintiff “had 14 of 18 fibromyalgia ‘tender
points.’” (R. 9-2, PageID 37.) However, the ALJ added that “the basis of such a finding
necessarily depends upon what ‘points’ a patient subjectively describes as ‘tender.’” (Id.)
Relying on this language, Plaintiff argues that the ALJ completely dismissed her diagnosis of
fibromyalgia. Plaintiff thereafter devotes a considerable portion of her brief arguing that her
diagnosis of fibromyalgia is supported by objective evidence in the record.
These arguments appear to be based on a misreading of the ALJ’s decision. The ALJ
actually accepted Plaintiff’s diagnosis of fibromyalgia and considered it a severe impairment.
Thus, to the extent the ALJ was skeptical of Plaintiff’s diagnosis, such skepticism ultimately had
no effect on the disposition of Plaintiff’s claim. It is true that the ALJ later found Plaintiff’s
statements regarding her fibromyalgia “not credible;” but this credibility determination pertained
to Plaintiff’s claims regarding the limiting effects of fibromyalgia on her ability to work.
Making such a credibility determination was not legal error. As explained in SSR 96-7p (which
is cited in SSR 12-2p), “whenever [an] individual’s statements about the intensity, persistence, or
functionally limiting effects of pain or other symptoms are not substantiated by objective
medical evidence, the adjudicator must make a finding on the credibility of the individual’s
9
Because we hold that the ALJ properly applied the principles of SSR 12-2p, we decline
to address the parties’ arguments regarding whether the Commissioner was bound by the Ruling
even though the ALJ denied Plaintiff’s application for SSI before the Ruling was released on
July 25, 2012.
11
No. 15-1561
statements based on a consideration of the entire case record.” SSR 96-7p, 1996 WL 374186, at
*2 (July 2, 1996); see also Jones v. Comm’r of Soc. Sec., 336 F.3d 469, 476 (6th Cir. 2003)
(“[A]n ALJ is not required to accept a claimant’s subjective complaints and may properly
consider the credibility of a claimant when making a determination of disability.”).
Notably, Plaintiff does not argue that the ALJ’s credibility determination was incorrect or
unsupported by substantial evidence. Thus, that issue is waived. See Enertech Elec., Inc. v.
Mahoning Cty. Comm’rs, 85 F.3d 257, 259 (6th Cir. 1996). Even if she had raised this issue,
however, we would be inclined to affirm the ALJ’s credibility determination because it is
supported by substantial evidence. See Rogers, 486 F.3d at 241. As both the magistrate judge
and the district court observed, Dr. Beals (Plaintiff’s fibromyalgia specialist) did not identify any
functional restrictions stemming from plaintiff’s fibromyalgia, and Plaintiff failed to provide any
additional evidence supporting her statements regarding the debilitating effects of her
fibromyalgia. See 20 C.F.R. § 416.945(a)(3) (establishing that a claimant is generally
responsible for providing evidence used to determine residual functional capacity).
Moreover, despite her claim of pain so debilitating that she was unable to work, Plaintiff
was able to, inter alia: complete high school and a year of college; lose 140 pounds by riding on
a stationary bike every day, sometimes for hours at a time; do her own grocery shopping; travel
to and stay with her out-of-state boyfriend; and maintain appropriate hygiene. This constitutes
evidence that “a reasonable mind might accept as adequate to support” the ALJ’s determination
that Plaintiff maintained the RFC to work, despite her statements to the contrary. Richardson,
402 U.S. at 401.
We therefore find no error in the ALJ’s assessment of Plaintiff’s fibromyalgia.
12
No. 15-1561
II. The ALJ Properly Assessed Plaintiff’s Psychological Impairments
Drs. Beals, Geiger, and Sigal all opined that Plaintiff’s psychological conditions rendered
her unable to work; all of these opinions were rejected by the ALJ. On appeal, Plaintiff argues
that in rejecting these expert opinions, the ALJ was necessarily replacing the experts’ medical
judgments with his own. For example, Plaintiff cites the ALJ’s rejection of the opinion of Dr.
Sigal, Plaintiff’s treating psychologist, regarding Plaintiff’s capacity to work. In that section of
his decision, the ALJ stated:
In August 2011, Dr. Sigal gave claimant work preclusive limitations (Exhibit
13F). This opinion is not explained by his report, nor is it consistent with the
record as a whole. Dr. Sigal reported claimant was alert, oriented x3, pleasant,
and cooperative. He said claimant’s thinking process was well organized and that
she had no morbid preoccupations. Therefore, I reject this opinion.
(R. 9-2, PageID 40.) In response, Plaintiff argues that “[n]o expert evidence suggests that being
able to think and be pleasant rules out a disability from performing competitive work for forty
hours a week. A medical judgment is required to conclude that a ‘well organized thinking
process’ is necessarily consistent with work activity.” (Pl.’s Br. at 25–26.) Plaintiff later asserts,
“[t]o argue that some symptoms identified support a diagnosis, and some do not, is necessarily a
medical judgment.” (Id. at 28.)
We find these arguments unavailing. First, as above, these arguments are based partly on
a misreading of the ALJ’s decision. The ALJ never disagreed with or attempted to refute the
diagnoses of the medical experts; rather, the ALJ disagreed with those experts’ conclusions
regarding Plaintiff’s capacity to work. Second, determining how certain diagnoses and
symptoms bear on a claimant’s capacity to work is not exclusively a “medical judgment,” but a
matter explicitly within the ALJ’s purview:
When the medical signs or laboratory findings show that you have a medically
determinable impairment(s) that could reasonably be expected to produce your
symptoms, such as pain, we must then evaluate the intensity and persistence of
13
No. 15-1561
your symptoms so that we can determine how your symptoms limit your capacity
for work . . . .
20 C.F.R. § 416.929(c)(1). Along that line, SSA regulations provide ALJs with the authority to
disagree with medical experts’ opinions on the ultimate question of a claimant’s capacity to
work: “A statement by a medical source that you are ‘disabled’ or ‘unable to work’ does not
mean that [the ALJ] will determine that you are disabled.” 20 C.F.R. § 416.927(d)(1).
Plaintiff also focuses—somewhat cryptically—on her “symptoms.” She argues that
“[m]any symptoms are specified in the medical records before this Court. The claimant has
testified to a variety of symptoms.” (Pl.’s Br. at 28.) She thereafter asserts that “[a]t the very
least there must be some medical basis to conclude that a specific sign or symptom is supportive,
or detracts from a claim.” (Id.) Again, this argument is based on a misunderstanding of the
applicable regulations and the role of the ALJ. Although the ALJ may consider statements by
medical experts regarding how a particular symptom affects the claimant, see 20 C.F.R.
§ 416.929(c)(1), such statements are neither required nor dispositive of the ultimate issue of
disability. Id. Rather, it is the Commissioner’s prerogative to determine whether a certain
symptom or combination of symptoms renders a claimant unable to work. Id.; see also
20 C.F.R. § 416.927(d)(2).
We note that Plaintiff’s briefing on this issue again fails to argue that the ALJ’s
determinations were not supported by substantial evidence. Plaintiff does argue that “there is
ample evidence that disability results from the findings and symptoms that are in fact present.”
(Pl.’s Br. at 28.) However, “[t]he findings of the Commissioner are not subject to reversal
merely because there exists in the record substantial evidence to support a different conclusion.”
Buxton v. Halter, 246 F.3d 762, 772 (6th Cir. 2001); see also Her v. Comm’r of Soc. Sec.,
203 F.3d 388, 389–90 (6th Cir. 1999) (“Even if the evidence could also support another
14
No. 15-1561
conclusion, the decision of the [ALJ] must stand if the evidence could reasonably support the
conclusion reached.”). Rather, we must uphold the ALJ’s decision so long as it “is supported by
substantial evidence and was made pursuant to proper legal standards.” Rogers, 486 F.3d at 241;
see also 42 U.S.C. § 405(g).
Once again, however, we would be inclined to affirm the ALJ’s findings regarding
Plaintiff’s psychological impairments. Despite her claims of being largely incapable of normal
social interaction, every physician to have seen Plaintiff described her as some variant of polite,
oriented, and responsive. Dr. Geiger noted that Plaintiff’s clothing was neat and clean, and her
grooming and hygiene were good. Although the record indicates that Plaintiff often wore
sunglasses when interacting with her physicians, it also indicates that she was willing to remove
them when asked. Finally, Plaintiff herself stated that she had a boyfriend and often spoke with
friends online. Based on the above, we would conclude that the ALJ’s determination that
Plaintiff had “moderate” difficulties in social functioning is supported by substantial evidence.
In terms of Plaintiff’s mental functioning, Dr. Geiger observed that Plaintiff’s thoughts
were logical and organized. Dr. Geiger also stated that Plaintiff “remembered 7 digits forward
and 4 digits backward;” she “remembered 2 of 3 objects after three-minute delay;” she could
perform basic mathematical calculations, including counting backwards from 100 by 7s; she
could explain common proverbs. (R. 10-5, PageID 504–05.) Dr. Geiger opined: “I believe
[Plaintiff] could understand and follow simple instructions. She could perform simple routine
tasks.” (Id. at 505.) These findings are consistent with Plaintiff’s own statements that she
sometimes did arts and crafts, and that she often used her computer for internet and email. With
such facts in the record, we would conclude that the ALJ’s determination that Plaintiff had
15
No. 15-1561
“moderate” difficulties with regard to “concentration, persistence, or pace” is supported by
substantial evidence. (R. 9-2, PageID 38.)
Finally, we would find that based on the above evidence, the ALJ was entitled to reject
the medical experts’ opinions regarding Plaintiff’s psychological impairments’ effect on her
capacity to work. When making a disability determination, an ALJ must consider the opinions
of experts in light of the entire record. See 20 C.F.R. §§ 416.927(b), 416.920b(b). The ALJ
should weigh expert opinions based on, inter alia, the strength of relevant evidence supporting
those opinions, the opinions’ consistency with the record as a whole, and whether the experts are
opining on issues within their area of expertise. 20 C.F.R. § 416.927(c)(3)–(5). In this case, the
ALJ correctly noted that neither Dr. Geiger’s nor Dr. Sigal’s conclusion regarding Plaintiff’s
inability to work was explained, and their own statements regarding Plaintiff’s demeanor tended
to contradict their conclusions. Moreover, Dr. Beals’ opinion that Plaintiff’s inability to work
was likely due to her psychological impairments was not entitled to much weight because Dr.
Beals’ own comments called her impartiality into question and because she had no apparent
expertise in psychology or psychiatry.
In sum, we conclude that the ALJ did not err in analyzing Plaintiff’s mental impairments.
III. The ALJ Did Not Err By Failing to Issue a Subpoena of Dr. Geiger
An ALJ’s decision regarding a claimant’s request to issue a subpoena is reviewed for
abuse of discretion. See Calvin v. Chater, 73 F.3d 87, 88 (6th Cir. 1996). “When it is reasonably
necessary for the full presentation of a case, an administrative law judge or a member of the
Appeals Council may, on his or her own initiative or at the request of a party, issue subpoenas
for the appearance and testimony of witnesses . . . .” 20 C.F.R. § 416.1450(d)(1).
Parties to a hearing who wish to subpoena documents or witnesses must file a
written request for the issuance of a subpoena with the administrative law judge
or at one of our offices at least 5 days before the hearing date. The written request
16
No. 15-1561
must give the names of the witnesses or documents to be produced; describe the
address or location of the witnesses or documents with sufficient detail to find
them; state the important facts that the witness or document is expected to prove;
and indicate why these facts could not be proven without issuing a subpoena.
20 C.F.R. § 416.1450(d)(2). “[A] social security claimant does not have an absolute right to
subpoena a physician who submits a pre-hearing report, but rather the administrative law judge
has the discretion to issue a subpoena ‘where necessary for the full presentation of a case.’”10
Flatford v. Chater, 93 F.3d 1296, 1300–01 (6th Cir. 1996) (footnote omitted) (citing Calvin,
73 F.3d at 93).
On July 18, 2011, Plaintiff received a form letter from the SSA explaining the
administrative hearing process. That letter stated:
If a physician, expert, or other person is not providing documents important to
your case, you may ask the ALJ to issue a subpoena. . . . The ALJ will issue a
subpoena only if he or she thinks the evidence is necessary to decide your case,
and the evidence cannot be obtained another way. You must ask the ALJ to issue
a subpoena at least 5 days before your hearing date. Send your request in writing
to the address at the top of the first page of this letter.
(R. 9-4, PageID at 96.) That form letter was signed: “Sincerely yours, Thomas L. Walters . . .
Chief Administrative Law Judge.” (Id.) Two days later—on July 20, 2011—Plaintiff’s counsel
sent a letter to the address specified by the SSA, requesting the issuance of a subpoena to Dr.
Steven Geiger. Plaintiff’s letter was addressed to Chief Judge Walters. Plaintiff’s letter asserted
that Dr. Geiger’s Consultative Evaluation Report “identifie[d] specific psychiatric diagnoses of
significance which may cause serious functional limitations,” but that the Report “failed to
10
Plaintiff notes that an SSA “Acquiescence Ruling, AR 91-1 actually concludes that a
subpoena is automatically required when requested by a claimant in this situation, at least as
acquiesced to in the Fifth Circuit.” (Pl.’s Br. at 30–31.) As her argument concedes, however,
the automatic subpoena requirement to which AR 91-1 refers applies only in the Fifth Circuit.
Cf. Lidy v. Sullivan, 911 F.2d 1075, 1077 (5th Cir. 1990). This Circuit has declined to adopt the
Fifth Circuit’s automatic rule, and has explicitly held that issuing a subpoena is a matter within
the discretion of the ALJ. Flatford, 93 F.3d at 1300–01; see also Passmore v. Astrue, 533 F.3d
658, 661–63 (8th Cir. 2008) (observing that the Second and Eighth Circuits have also held that
ALJ’s have discretion to issue subpoenas pursuant to 20 C.F.R. § 416.1450).
17
No. 15-1561
provide specific assessments relative to the functioning of [Plaintiff].” (R. 10-2, PageID 187.)
Plaintiff’s letter requested, in the alternative, that Dr. Geiger be directed to answer
interrogatories, which she enclosed along with her letter.
Plaintiff’s hearing was conducted on March 1, 2012—nearly a year after she sent her
original request for a subpoena. Her case was assigned not to Chief Judge Walters, but to ALJ
Paul Jones. Plaintiff’s request for a subpoena was not mentioned during her hearing. The record
contains no evidence regarding a disposition of Plaintiff’s request for a subpoena; Plaintiff now
asserts that her request was “rebuffed.”
Plaintiff argues that the ALJ’s failure to grant her request for additional testimony from
Dr. Geiger constituted an abuse of discretion. She argues that this was an especially grave error,
given that the ALJ explicitly dismissed as unsupported Dr. Geiger’s conclusion that Plaintiff
would have difficulty handling work pressure and communicating with coworkers. In support of
her argument, Plaintiff cites Urban v. Heckler, No. 86-541, 1987 WL 11475 (D.N.J. Apr. 21,
1987). In Urban, the court held that the claimant’s due process rights had been violated when
the ALJ relied on reports by unidentified authors, but failed to either strike the reports or issue a
subpoena to identify the reports’ authors. Id. at *2–4. In remanding the claimant’s case for
further proceedings, the court held that the ALJ’s affirmative reliance on statements in the
reports that were harmful to the claimant triggered a due process right to cross-examine the
reports’ author(s). Id. at *4 (“[A] ‘full presentation’ of the case requires that the subpoena issue
for cross-examination of the witness. To hold otherwise would allow the claimant to be placed
in the impossible position of being unable to cross-examine a witness although faced with an
adverse statement from the very witness whose appearance had been sought.” (quoting Taylor v.
Weinberger, 528 F.2d 1153, 1156 (4th Cir. 1975))).
18
No. 15-1561
We find the Plaintiff’s arguments unavailing for three reasons. First, Plaintiff’s case is
distinguishable from Urban because the ALJ in this case did not explicitly rely on information
contained in Dr. Geiger’s report when denying Plaintiff’s claim. Rather, the ALJ rejected Dr.
Geiger’s conclusion that Plaintiff would have difficulty working because of an absence of
supporting evidence in that report. In other words, Plaintiff did not need to cross-examine Dr.
Geiger on any damaging statements; she merely wanted to ask Dr. Geiger questions that would
bolster her case. Moreover, that absence of information provided only one basis for the ALJ’s
rejection of Dr. Geiger’s opinion. The ALJ also concluded that Dr. Geiger’s assertions of
Plaintiff’s inability to handle the stress of work or effectively communicate with coworkers were
not consistent with the record as a whole. The ALJ observed that contrary to Dr. Geiger’s
unsupported conclusions, Plaintiff “was able to communicate effectively with Dr. Geiger, [her]
medical sources, the Agency Field Office employee, and the administrative law judge.” (See R.
9-2, PageID 40.)
Second, Plaintiff’s request for a subpoena failed to establish why the information she
sought from Dr. Geiger “could not be proven without issuing a subpoena.” 20 C.F.R.
§ 416.1450(d)(2). Plaintiff’s request for a subpoena of Dr. Geiger was based on his “fail[ure] to
provide specific assessments relative to the functioning of” Plaintiff. (R. 10-2, PageID 187.)
Yet, Plaintiff could have sought such “specific assessments” from her own doctors or experts of
her choosing; there was nothing unique about Dr. Geiger’s analysis—e.g., statements adverse to
Plaintiff—that would necessitate cross-examination of him, specifically. Moreover, that the
evidence Plaintiff sought could have been proven without issuing a subpoena to Dr. Geiger is
evidenced by Plaintiff’s own suggestion of an alternative—namely, issuing an interrogatory.
19
No. 15-1561
Finally, as the district court noted, at no point during her hearing before ALJ Paul Jones
did Plaintiff or her counsel renew her request for a subpoena, object to the lack of ruling on her
request for a subpoena, request cross-examination of Dr. Geiger, or present any interrogatories to
the ALJ. Plaintiff responds that no cases, regulations, or statutes required her to do any of the
above. Although Plaintiff is correct that SSA regulations do not require that requests for a
subpoena be renewed during a hearing, as the Commissioner points out, “a claimant is required
to ‘make every effort’ to ensure that all material evidence is received by the [ALJ] by the time of
the hearing.” Flatford, 93 F.3d at 1302; see also 20 C.F.R. §§ 416.1435 (“Each party shall make
every effort to ensure that the administrative law judge receives all of the evidence . . . .”),
416.912 (establishing claimant’s burden to prove disability). By failing to raise her concerns
regarding Dr. Geiger’s report during her hearing, Plaintiff waived any objection to the deficiency
in the record caused by Dr. Geiger’s failure to testify. Cf. Millmine v. Sec’y of Health & Human
Servs., 69 F.3d 537 (6th Cir. 1995) (table) (“[T]he court finds that plaintiff’s failure to object to
the ALJ’s possible bias during the administrative process constitutes a waiver of plaintiff’s
objection.”).
CONCLUSION
For the reasons stated above, we AFFIRM the district court’s judgment upholding
Commissioner’s denial of Plaintiff’s application for SSI.
20
| {
"pile_set_name": "FreeLaw"
} |
People v Moorer (2018 NY Slip Op 00754)
People v Moorer
2018 NY Slip Op 00754
Decided on February 2, 2018
Appellate Division, Fourth 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 on February 2, 2018
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
PRESENT: CENTRA, J.P., PERADOTTO, DEJOSEPH, NEMOYER, AND CURRAN, JJ.
1456 KA 14-00063
[*1]THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
vDEVONTE R. MOORER, DEFENDANT-APPELLANT.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (LINDA M. CAMPBELL OF COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (SCOTT MYLES OF COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Monroe County Court (John L. DeMarco, J.), rendered March 15, 2013. The judgment convicted defendant, upon a nonjury verdict, of manslaughter in the first degree.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a nonjury verdict of manslaughter in the first degree (Penal Law § 125.20 [1]). Defendant's cell phone was located when the police contacted defendant's cell phone service provider to "ping" the cell phone. The police found the cell phone in a backpack under a cot at a certain residence on Zimbrich Street in Rochester, and the contents of the backpack helped them to identify defendant as the perpetrator of the homicide herein. Defendant contends that County Court erred in denying that part of his omnibus motion seeking to suppress evidence obtained via the pinging of his cell phone. According to defendant, he had a reasonable expectation of privacy in the real-time location of his cell phone and that, to effect a real-time ping of the cell phone legally, the police were required to obtain a warrant. In defendant's view, without the illegal pinging of his cell phone and the evidence obtained as a result thereof, there was no trial evidence identifying him as the perpetrator. Even assuming, arguendo, that the pinging of defendant's cell phone constituted a search implicating the protections of the Federal and State Constitutions (see US Const Fourth Amend; NY Const, art I, § 12), we conclude that any error in failing to suppress the evidence obtained as a result of the pinging is harmless inasmuch as the proof of defendant's identity was overwhelming and there is no reasonable possibility that defendant otherwise would have been acquitted (see generally People v Crimmins , 36 NY2d 230, 237 [1975]). Similarly, even assuming, arguendo, that the court erred in determining that defendant abandoned the backpack and its contents, we further conclude that any such error is harmless (see id. ).
Contrary to defendant's contention, the sentence is not unduly harsh or severe.
Entered: February 2, 2018
Mark W. Bennett
Clerk of the Court
| {
"pile_set_name": "FreeLaw"
} |
T.C. Memo. 1997-235
UNITED STATES TAX COURT
DWIGHT D. SPANN, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 15339-95. Filed May 21, 1997.
Dwight D. Spann, pro se.
Herbert W. Linder, for respondent.
MEMORANDUM FINDINGS OF FACT AND OPINION
POWELL, Special Trial Judge: This case was assigned
pursuant to the provisions of section 7443A(b)(3) and Rules 180,
181, and 182.1
1
All section references are to the Internal Revenue Code in
effect for the years in issue, and Rule references are to the Tax
Court Rules of Practice and Procedure.
- 2 -
Respondent determined deficiencies in petitioner's Federal
income taxes for the taxable years 1992 and 1993 in the amounts
of $2,134 and $2,518, respectively.
After a concession,2 the sole issue is whether petitioner is
liable for self-employment tax for the years in issue.
Petitioner resided in Enon Valley, Pennsylvania, at the time the
petition was filed.
FINDINGS OF FACT
The facts are not disputed and may be summarized as follows.
Petitioner is a carpenter. During the taxable years 1992 and
1993, petitioner's sole source of income was income earned from
self-employment in the amounts of $6,724 and $7,708,
respectively. Petitioner did not pay any self-employment tax for
the years in issue. In the notice of deficiency, respondent
determined that petitioner is liable for self-employment tax for
the taxable years 1992 and 1993 in the amounts of $950 and
$1,089, respectively. Petitioner contends that the self-
employment tax does not, or at least should not, apply to
individuals at his modest income level.
OPINION
Section 1401 imposes Social Security and medicare taxes
(self-employment tax) on income derived by an individual from a
2
Respondent concedes that petitioner is entitled to earned
income credits pursuant to sec. 32 for the taxable years 1992 and
1993 in the amounts of $1,184 and $1,429, respectively.
- 3 -
trade or business (self-employment income) in excess of $400 to
pay for old-age, survivors and disability insurance, and hospital
insurance. Secs. 1401 and 1402(b) and (c); Culp v. Commissioner,
T.C. Memo. 1984-78. Since petitioner's self-employment income
for each of the years in issue exceeds $400, petitioner is liable
for self-employment tax in the amounts determined in the notice
of deficiency. As to the fairness of such a taxing regime,
petitioner's avenue of redress lies with Congress, for we must
apply the law as written. Metzger Trust v. Commissioner, 76 T.C.
42, 59-60 (1981), affd. 693 F.2d 459 (5th Cir. 1982).
To reflect respondent's concession,
Decision will be entered
under Rule 155.
| {
"pile_set_name": "FreeLaw"
} |
722 F.2d 731
Appeal of Forstall (Edward L.)
NO. 83-5117
United States Court of Appeals,Third circuit.
SEP 15, 1983
Appeal From: W.D.Pa.,
Mencer, J.
1
AFFIRMED.
| {
"pile_set_name": "FreeLaw"
} |
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DEBBIE DONOHUE, and all other
similarly situated persons,
No. 09-35183
Plaintiff-Appellant,
v. D.C. No.
2:08-cv-00150-LRS
QUICK COLLECT, INC., an Oregon
OPINION
Corporation,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of Washington
Lonny R. Suko, Chief District Judge, Presiding
Argued and Submitted
December 10, 2009—Seattle, Washington
Filed January 13, 2010
Before: Ronald M. Gould and Richard C. Tallman,
Circuit Judges, and Roger T. Benitez,* District Judge.
Opinion by Judge Gould
*The Honorable Roger T. Benitez, United States District Judge for the
Southern District of California, sitting by designation.
997
1000 DONOHUE v. QUICK COLLECT, INC.
COUNSEL
Michael J. Beyer (argued), Spokane, Washington, for
plaintiff-appellant Debbie Donohue and all other similarly sit-
uated persons.
Christopher J. Kerley (argued), Evans, Craven & Lackie, P.S.,
Spokane, Washington, for defendant-appellee Quick Collect,
Inc.
DONOHUE v. QUICK COLLECT, INC. 1001
OPINION
GOULD, Circuit Judge:
Debbie Donohue appeals the district court’s order denying
her motions and granting summary judgment to Quick Col-
lect, Inc. (“Quick Collect”) dismissing all of her claims. We
have jurisdiction under 28 U.S.C. § 1291, and we affirm.
I
Donohue was a customer of a pediatric dental practice cal-
led the Children’s Choice (“Children’s Choice”) located in
Spokane, Washington. Children’s Choice has an “Office
Financial Policy” outlining customers’ payment obligations,
which Donohue signed in 2003. The policy states, in pertinent
part, as follows: “I understand that all services are due to be
paid in full within ninety (90) days of date of service . . . . A
finance charge of 1-1/2 % per month will be applied to all
accounts over 90 days . . . .”
In October 2007, Children’s Choice assigned to Quick Col-
lect, a collection service incorporated in Oregon, the principal
and finance charges Donohue owed to Children’s Choice.
Upon receipt of the assignment, Quick Collect mailed a for-
mal demand letter to Donohue seeking $270.99 in “principal,”
$24.07 in “assigned interest,” and $2.23 in “post assigned
interest.” Quick Collect did not immediately receive a
response from Donohue and referred the matter to attorney
Gregory Nielson to commence litigation to collect the
amounts due.
In January 2008, Quick Collect brought an action against
Donohue and Donohue was served with a summons and com-
plaint (the “Complaint”). The Complaint stated that Quick
Collect sought a judgment against Donohue for, among other
amounts, “the sum of $270.99, together with interest thereon
of 12% per annum . . . in the amount of $32.89.” In February
1002 DONOHUE v. QUICK COLLECT, INC.
2008, Nielson, on behalf of Quick Collect, sent another
demand letter to Donohue (the “Nielson Demand Letter”).
The Nielsen Demand Letter stated that Donohue owed, in
addition to litigation-related costs, $270.99 for “Principal,”
and $35.57 for “Interest.”
In April 2008, Donohue filed a class-action lawsuit in
Washington state court against Quick Collect. Donohue
brought the following two federal claims: (1) Quick Collect
violated the Fair Debt Collection Practices Act (“FDCPA”) by
charging a usurious rate of interest—i.e., the Complaint and
the Nielsen Demand Letter sought annual interest above 12%,
the maximum permitted under Washington law; and (2) Quick
Collect violated the FDCPA’s prohibition against the use of
false, deceptive, or misleading statements in connection with
collecting a debt by “misrepresenting the amount of interest”
—i.e., the Complaint incorrectly stated that $32.89 was “inter-
est [on the principal] of 12% per annum.” Donohue also
alleged violations of Washington state law arising out of the
same events.
The action was removed to the United States District Court
for the Eastern District of Washington and Quick Collect
moved for summary judgment on all of Donohue’s claims.
Donohue thereafter cross-moved for partial summary judg-
ment as to Quick Collect’s liability, moved to certify the
class, and moved to strike Quick Collect’s motion for sum-
mary judgment.
Faced with these conflicting motions, on December 31,
2008, the district court granted summary judgment to Quick
Collect dismissing Donohue’s claims, and denied Donohue’s
motions. The district court concluded as follows as to Dono-
hue’s two FDCPA claims: (1) Quick Collect, through the
Complaint and the Nielsen Demand Letter, did not charge a
usurious interest rate and so did not violate the FDCPA; and
(2) the Complaint accurately set forth the total sum Donohue
owed and was not false, deceptive, or misleading under the
DONOHUE v. QUICK COLLECT, INC. 1003
FDCPA. Because Quick Collect did not violate the FDCPA,
the district court concluded that Donohue could not succeed
on her state-law claims either. Donohue timely appeals.
II
[1] We review de novo the district court’s interpretation of
the FDCPA and its rulings on cross-motions for summary
judgment. See Clark v. Capital Credit & Collection Servs.,
Inc., 460 F.3d 1162, 1168 (9th Cir. 2006). Seeking somewhat
to level the playing field between debtors and debt collectors,
the FDCPA prohibits debt collectors “from making false or
misleading representations and from engaging in various abu-
sive and unfair practices.” Heintz v. Jenkins, 514 U.S. 291,
292 (1995). The FDCPA is a strict liability statute that
“makes debt collectors liable for violations that are not know-
ing or intentional.” Reichert v. Nat’l Credit Sys., Inc., 531
F.3d 1002, 1005 (9th Cir. 2008).
[2] The two FDCPA provisions at issue in this case are 15
U.S.C. §§ 1692e and 1692f. Section 1692e prohibits the use
by a debt collector of “any false, deceptive, or misleading rep-
resentation or means in connection with the collection of any
debt.” Section 1692e(2) prohibits “[t]he false representation
of . . . the character, amount, or legal status of any debt.” Sec-
tion 1692f prohibits a debt collector from using “unfair or
unconscionable means to collect or attempt to collect any
debt.” “The collection of any amount . . . unless such amount
is expressly authorized by the agreement creating the debt or
permitted by law” is a violation of § 1692f(1). Whether con-
duct violates §§ 1692e or 1692f requires an objective analysis
that takes into account whether “the least sophisticated debtor
would likely be misled by a communication.” See Guerrero
v. RJM Acquisitions LLC, 499 F.3d 926, 934 (9th Cir. 2007)
(internal quotation marks omitted).
A
First, Donohue claims that Quick Collect, through the Niel-
sen Demand Letter and the Complaint, violated the FDCPA—
1004 DONOHUE v. QUICK COLLECT, INC.
in particular §§ 1692e and 1692f—by charging more than
12% annual interest in contravention of Washington usury
law. Washington law prohibits charging more than 12%
annual interest “for the loan or forbearance of any money,
goods, or things in action.” Wash. Rev. Code § 19.52.020.
Donohue calculates that the Nielsen Demand Letter sought an
interest payment of $35.57 for a period of 289 days, for an
effective annual interest rate of 16.6%, and that the Complaint
sought an interest payment of $32.89 for a period of 259 days,
for an effective annual interest rate of 17.1%.
[3] Quick Collect contends that these so-called interest
amounts in the Nielsen Demand Letter and the Complaint are
largely comprised of pre-assignment finance charges assessed
by Children’s Choice, and that the assessment by Children’s
Choice of the finance charges to Donohue’s overdue account
does not implicate the usury statute because there is no loan
or forbearance under Washington law. Quick Collect argues
that, setting aside those finance charges, the interest it charged
did not exceed 12%. Donohue replies that, under Children’s
Choice’s Office Financial Policy, the ninety-day “grace peri-
od” during which payment is due before a finance charge is
applied is consistent with a forbearance and therefore the
finance charges must be considered interest. Whether Quick
Collect charged a usurious interest rate, therefore, turns on
whether or not the finance charges assessed by Children’s
Choice pursuant to its Office Financial Policy constitute a for-
bearance under Washington law.
[4] The leading Washington State Supreme Court case on
the definition of forbearance under Washington law is
Whitaker v. Spiegel Inc., 623 P.2d 1147, 1149 (Wash. 1981),
which concerned a financial arrangement between consumers
and a mail-order retailer called a “revolving charge account.”
After consumers made an initial purchase, the purchase price
of subsequently purchased items, if there was an unpaid bal-
ance, would be added to the existing balance as one account.
Id. The Whitaker court defined a forbearance as “a contractual
DONOHUE v. QUICK COLLECT, INC. 1005
obligation of a lender or creditor to refrain, during a given
period of time, from requiring the borrower or debtor to pay
a loan or debt then due and payable.” Id. at 1152 (quoting
Hafer v. Spaeth, 156 P.2d 408, 411 (Wash. 1945)). The Wash-
ington State Supreme Court applied this definition and con-
cluded that the revolving charge account was a forbearance:
The relationship between the respondents and appel-
lant is clearly that of debtor and creditor. Respon-
dents are indebted to appellant upon delivery of the
goods and acceptance of them. Appellant, by its
credit agreement, has agreed to refrain from immedi-
ately requiring respondents or any other debtors to
pay their debts. In return, respondents have agreed to
pay a constant service charge percentage which is
applied against a changeable balance.
Id.
[5] The reasoning of Whitaker makes clear that Children’s
Choice’s payment arrangement, unlike a revolving charge
account such as was considered in Whitaker, does not consti-
tute a forbearance under Washington law. Children’s Choice
did not have a contractual obligation to “refrain, during a
given period of time, from requiring [Donohue] to pay a loan
or debt then due and payable.” Id. (emphasis added). Instead,
payment was “due to be paid in full within ninety (90) days
of service.” Children’s Choice was free to enforce the require-
ment of payment any time after the ninety days in which pay-
ment was finally due. Donohue notes that Washington law
requires that courts “look through the form of the transaction
and consider its substance.” Id. But the substance here is late
fees assessed to encourage timely payment—Children’s
Choice did not agree to forbear requiring payment from
Donohue on her past-due account in exchange for exacting a
fee nominally called a “finance charge.” We conclude that
Children’s Choice’s assessment of finance charges under
these circumstances was not a forbearance. Therefore, Quick
1006 DONOHUE v. QUICK COLLECT, INC.
Collect did not charge usurious interest in the Complaint or in
the Nielsen Demand Letter, and Donohue’s FDCPA claim
founded on Quick Collect charging a usurious interest rate
cannot succeed.
B
Second, Donohue claims the Complaint violated the
FDCPA because it contained a false, deceptive, or misleading
representation, in particular, a false representation concerning
the character of the debt that Donohue owed. See 15 U.S.C.
§ 1692e. The Complaint stated that Donohue owed an interest
payment of $32.89 calculated by applying 12% annual inter-
est to the principal owed. That statement is not entirely accu-
rate. $32.89 is actually comprised of two components: $24.07
in pre-assignment finance charges assessed by Children’s
Choice and calculated at the rate of 1.5% per month, and
$8.82 in post-assignment interest calculated at an annual rate
of 12%.
[6] As a preliminary matter, Quick Collect suggests that a
complaint is not a communication subject to the requirements
of §§ 1692e and 1692f. The authority Quick Collect provides
for this proposition is Beler v. Blatt, Hasenmiller, Leibsker &
Moore, LLC, 480 F.3d 470 (7th Cir. 2007). But the Seventh
Circuit in Beler did not decide this issue and, instead, stated,
“We postpone to some future case, where the answer matters,
the decision whether § 1692e covers the process of litigation.”
Id. at 473. We decide this issue and conclude that a complaint
served directly on a consumer to facilitate debt-collection
efforts is a communication subject to the requirements of
§§ 1692e and 1692f.
Concluding otherwise would put our decision in tension
with the Supreme Court’s reasoning in Heintz. In Heintz, Dar-
lene Jenkins defaulted on a loan from a bank. 514 U.S. at 293.
A lawyer from the bank’s law firm, George Heintz, wrote a
letter to Jenkins’s lawyer listing an amount that Jenkins pur-
DONOHUE v. QUICK COLLECT, INC. 1007
portedly owed. Id. Jenkins sued Heintz under §§ 1692e(2) and
1692f. Id. Heintz contested the applicability of the FDCPA to
his debt-collection efforts because he was a lawyer engaged
in litigation. Id. at 295. The Supreme Court held that the
FDCPA “applies to attorneys who ‘regularly’ engage in
consumer-debt-collection activity, even when that activity
consists of litigation.” Id. at 299. The Supreme Court rea-
soned that “the plain language of the [FDCPA] itself says
nothing about” an “exemption [for lawyers] in respect to liti-
gation.” Id. at 297. Nor did it make sense to differentiate
between lawyers acting in the capacity of debt collectors and
those litigating: “The line . . . between ‘legal’ activities and
‘debt collection’ activities was not necessarily apparent to
those who debated the legislation, for litigating, at first blush,
seems simply one way of collecting a debt.” Id.
[7] We have recognized a limited exception to this rule. In
Guerrero, we concluded that communications sent only to a
debtor’s attorney are not actionable under the FDCPA. 499
F.3d at 935-36. We reasoned that Heintz only addressed the
question of whether the FDCPA applies to lawyers collecting
debts through litigation, but Heintz did not address how the
identity of the recipient of the communication impacts
FDCPA liability. Id. at 937-38. When the recipient of the
communication is solely a debtor’s attorney, the FDCPA’s
purpose of protecting unsophisticated consumers is not impli-
cated. Id. at 939. Thus, we there concluded that a letter
directed “to counsel, and not to his client—‘the consumer’—
was not a prohibited collection effort.” Id. at 934. But the lim-
ited exception that we outlined in Guerrero is inapplicable
here. Donohue was personally served with the Complaint.
Therefore, Donohue herself, not her lawyer, was the recipient
of the communication. Because the complaint was communi-
cated to the consumer, the requirements of the FDCPA apply.
While the communication at issue in Heintz was a letter,
not a legal pleading as here, the logic of Heintz controls our
analysis. Quick Collect caused Donohue to be served with the
1008 DONOHUE v. QUICK COLLECT, INC.
Complaint to further Quick Collect’s effort to collect the debt
through litigation. The Supreme Court in Heintz stated clearly
that the FDCPA “applies to attorneys who ‘regularly’ engage
in consumer-debt-collection activity, even when that activity
consists of litigation.” 514 U.S. at 299 (emphasis added). To
limit the litigation activities that may form the basis of
FDCPA liability to exclude complaints served personally on
consumers to facilitate debt collection, the very act that for-
mally commences such a litigation, would require a nonsensi-
cal narrowing of the common understanding of the word
“litigation” that we decline to adopt.1
[8] Turning to the merits, we conclude that the Complaint
did not violate §§ 1692e or 1692f. The Complaint correctly
calculated the total debt Donohue owed, accurately stated the
principal owed, and accurately listed the total non-principal
amount owed inclusive of interest and finance charges. The
Complaint sought recovery of sums to which Quick Collect
was clearly and lawfully entitled, including $270.99 in princi-
pal, $24.07 in late fees assessed pursuant to Children’s
Choice’s Office Financial Policy signed by Donohue, and
$8.82 in interest assessed at a lawful rate. The Complaint did
not contain a false, deceptive, or misleading representation for
purposes of liability under §§ 1692e or 1692f just because
$32.89, labeled as 12% interest on principal, was actually
comprised of finance charges of $24.07 and post-assignment
interest of $8.82, but not labeled as such.
1
Quick Collect suggests that a complaint, because it can be corrected by
amending the offending pleading, should not constitute an actionable com-
munication. But all communications can be “amended” in this way by
simply sending out a subsequent communication correcting the error. Sec-
tions 1692e and 1692f do not suggest that otherwise unlawful representa-
tions are permitted so long as they are followed up, at some later time,
with a communication correcting the statements that gave rise to the com-
munication’s unlawful nature. We see no reason to treat complaints differ-
ently where there was no effort to correct the error before an answer was
filed.
DONOHUE v. QUICK COLLECT, INC. 1009
[9] In Hahn v. Triumph Partnerships LLC, 557 F.3d 755
(7th Cir. 2009), Chief Judge Easterbrook concluded for a
panel of the Seventh Circuit that a false or misleading state-
ment is not actionable under § 1692e unless it is material.
With reasoning that we consider persuasive, Chief Judge
Easterbrook observed that “[m]ateriality is an ordinary ele-
ment of any federal claim based on a false or misleading
statement.” Id. at 757 (citing Carter v. United States, 530 U.S.
255 (2000); Neder v. United States, 527 U.S. 1 (1999)). There
is no “reason why materiality should not equally be required
in an action based on § 1692e.” Id. The purpose of the
FDCPA, “to provide information that helps consumers to
choose intelligently,” would not be furthered by creating lia-
bility as to immaterial information because “by definition
immaterial information neither contributes to that objective (if
the statement is correct) nor undermines it (if the statement is
incorrect).” Id. at 757-58. The Seventh Circuit framed materi-
ality as a corollary to the well-established proposition that
“[i]f a statement would not mislead the unsophisticated con-
sumer, it does not violate the [Act]—even if it is false in some
technical sense.” Id. at 758 (quoting Wahl v. Midland Credit
Mgmt., Inc., 556 F.3d 643, 646 (7th Cir. 2009) (alterations in
original)). Thus, “A statement cannot mislead unless it is
material, so a false but non-material statement is not action-
able.” Id. The Sixth Circuit has reached the same conclusion.
See Miller v. Javitch, Block & Rathbone, 561 F.3d 588, 596
(6th Cir. 2009) (concluding that a false but non-material state-
ment is not actionable under § 1692e).
[10] We agree with the approach adopted by the Sixth and
Seventh Circuits. We have consistently held that whether con-
duct violates §§ 1692e or 1692f requires an objective analysis
that considers whether “the least sophisticated debtor would
likely be misled by a communication.” Guerrero, 499 F.3d at
934 (internal quotation marks omitted) (stating this standard
applies to §§ 1692d, 1692e, and 1692f); see Wade v. Reg’l
Credit Ass’n, 87 F.3d 1098, 1099-1100 (9th Cir. 1996); Swan-
son v. S. Or. Credit Serv., Inc., 869 F.2d 1222, 1227 (9th Cir.
1010 DONOHUE v. QUICK COLLECT, INC.
1988). We now conclude that false but non-material represen-
tations are not likely to mislead the least sophisticated con-
sumer and therefore are not actionable under §§ 1692e or
1692f.
Our conclusion is in harmony with our recognition in Clark
that “the remedial nature of the [FDCPA] . . . requires us to
interpret it liberally.” 460 F.3d at 1176. We noted in Clark
that the FDCPA’s remedial purpose is animated by “the likely
effect of various collection practices on the minds of unso-
phisticated debtors.” Id. at 1179. But immaterial statements,
by definition, do not affect a consumer’s ability to make intel-
ligent decisions. See Hahn, 557 F.3d at 757-58. We recognize,
as the Seventh Circuit already has, that the materiality
requirement functions as a corollary inquiry into whether a
statement is likely to mislead an unsophisticated consumer.
The materiality inquiry focuses our analysis on the same ends
that concerned us in Clark—protecting consumers from mis-
leading debt-collection practices.
[11] Applying this standard to the statement at issue in the
Complaint, we conclude that it is immaterial and not action-
able under §§ 1692e or 1692f. We agree with the reasoning in
Hahn, in which Chief Judge Easterbrook concluded, under
analogous facts, that the statement at issue there was immate-
rial. Id. at 757. In Hahn, a demand letter stated that Marylou
Hahn owed $1,134.55, of which $1,051.91 was the “amount
due” and of which $82.64 was “interest due.” Id. at 756. Hahn
argued that the letter contained a false representation concern-
ing the character of the debt in violation of § 1692e. The total
owed was conceded to be accurate, but the labels for the two
sums comprising the total debt were technically incorrect:
$82.64, labeled “interest,” included only post-assignment
interest, and $1,051.91, labeled “amount due,” included pre-
assignment interest and principal. Id. Similarly, here, the total
owed was accurately stated in the Complaint, but the label for
at least one of the two sums comprising the total debt was
technically incorrect: $32.89, labeled “interest . . . of 12%,”
DONOHUE v. QUICK COLLECT, INC. 1011
included pre-assignment finance charges and interest. In
Hahn, the Seventh Circuit concluded that mislabeling a sum
“interest” when it included only part of the interest owed, and
mislabeling a sum “amount due” when it included both princi-
pal and interest, was not a materially false characterization of
the debt. Chief Judge Easterbrook explained that “[a]pplying
an incorrect rate of interest would lead to a real injury” but
“reporting interest in one line item rather than another (or in
two line items) harms no one and . . . may well assist some
people.” Id. at 757. We conclude, consistent with Hahn, that
the Complaint’s mislabeling $32.89 as 12% interest, when
$32.89 included both interest and pre-assignment finance
charges, is not materially false.
[12] The reason for applying the materiality requirement is
also implicated by the facts of this case. In assessing FDCPA
liability, we are not concerned with mere technical falsehoods
that mislead no one, but instead with genuinely misleading
statements that may frustrate a consumer’s ability to intelli-
gently choose his or her response. See id. Here, the statement
in the Complaint did not undermine Donohue’s ability to
intelligently choose her action concerning her debt. Based on
the information in the Complaint, Donohue could have chal-
lenged the accuracy or legality of the total debt and principal
owed, futile as that may have been, or Donohue could have
paid the accurately stated sum to settle her debt. Even if the
Complaint had separated $32.89 into interest and finance
charges, we can conceive of no action Donohue could have
taken that was not already available to her on the basis of the
information in the Complaint—nor has Donohue articulated
any different action she might have chosen. Therefore, we
conclude that the statement in the Complaint was not material
and hence not actionable under §§ 1692e and 1692f.
C
[13] Donohue concedes that her state-law claims “are
totally predicated upon the court finding a violation of the
1012 DONOHUE v. QUICK COLLECT, INC.
FDCPA.” We have concluded that Quick Collect did not vio-
late the FDCPA. Therefore, Donohue cannot prevail on her
state-law claims either.
III
We affirm the district court’s order granting summary judg-
ment to Quick Collect, denying Donohue’s motion for sum-
mary judgment, and denying Donohue’s motion to strike
Quick Collect’s motion for summary judgment. We also
affirm the district court’s denial of Donohue’s motion for
class certification as moot.
AFFIRMED.
| {
"pile_set_name": "FreeLaw"
} |
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-4435
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DESTIN KYJUAN BELL,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Thomas D. Schroeder,
District Judge. (1:11-cr-00295-TDS-1)
Submitted: January 30, 2017 Decided: February 9, 2017
Before TRAXLER, KEENAN, and THACKER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
William S. Trivette, WILLIAM S. TRIVETTE, ATTORNEY AT LAW, PLLC,
Greensboro, North Carolina, for Appellant. Robert Albert
Jamison Lang, Assistant United States Attorney, Winston-Salem,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Destin Kyjuan Bell appeals the 14-month sentence and 22-
month term of supervised release imposed upon revocation of his
supervised release. We affirm. Bell pled guilty in 2011 to
possession of a firearm as a convicted felon and was sentenced
to 60 months’ imprisonment, followed by 3 years of supervised
release. Bell began his term of supervised release in October
2015. In March 2016, a warrant was issued for Bell’s arrest
based on a number of violations of conditions of supervision.
At the revocation hearing, Bell admitted the violations. The
district court noted that, under U.S. Sentencing Guidelines
Manual (USSG) § 7B1.4(a), Bell’s advisory range was 12 to 18
months, with a statutory maximum of 24 months, and a maximum
term of supervised release available was 36 months. At the
conclusion of the hearing, the court imposed a 14-month term of
imprisonment, followed by an additional term of 22 months of
supervised release. Bell timely appealed. His attorney has
filed a brief in accordance with Anders v. California, 386 U.S.
738 (1967), in which he asserts that there are no meritorious
grounds for appeal, but questions the reasonableness of Bell’s
sentence. Although informed of his right to file a supplemental
informal brief, Bell has not done so.
We review sentences imposed upon revocation of supervised
release to determine whether they “fall[] outside the statutory
2
maximum” or are otherwise “plainly unreasonable.” United States
v. Padgett, 788 F.3d 370, 373 (4th Cir. 2015) (internal
quotation marks omitted). This court “first decide[s] whether
the sentence is unreasonable[,] . . . follow[ing] generally the
procedural and substantive considerations that [the court]
employ[s] in [its] review of original sentences.” United States
v. Crudup, 461 F.3d 433, 438 (4th Cir. 2006). In analyzing a
revocation sentence, we apply “a more ‘deferential appellate
posture concerning issues of fact and the exercise of
discretion’ than reasonableness review for [G]uidelines
sentences.” United States v. Moulden, 478 F.3d 652, 656 (4th
Cir. 2007) (internal quotation marks omitted). “Only if a
revocation sentence is unreasonable must [this court] assess
whether it is plainly so.” Padgett, 788 F.3d at 373.
A revocation sentence is procedurally reasonable if the
district court considered the policy statements in Chapter Seven
of the Guidelines manual and the applicable 18 U.S.C. § 3553(a)
(2012) factors. Crudup, 461 F.3d at 438–39; 18 U.S.C. § 3583(e)
(2012). The court “must consider the policy statements
contained in Chapter 7, including the policy statement range, as
‘helpful assistance,’ and must also consider the applicable §
3553(a) factors.” Moulden, 478 F.3d at 656; see also United
States v. Thompson, 595 F.3d 544, 547 (4th Cir. 2010).
3
We have reviewed the record, including the transcript of
Bell’s revocation hearing, and find that the district court
appropriately considered the Chapter Seven policy statements and
the applicable range, as well as relevant factors set forth in
§ 3553(a). Accordingly, we find that Bell’s 14-month sentence,
followed by 22 months of supervised release, is not plainly
unreasonable.
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. We therefore affirm Bell’s sentence. This court
requires that counsel inform Bell, in writing, of the right to
petition the Supreme Court of the United States for further
review. If Bell requests that a petition be filed, but counsel
believes that such a petition would be frivolous, then counsel
may move in this court for leave to withdraw from
representation. Counsel’s motion must state that a copy thereof
was served on Bell.
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
4
| {
"pile_set_name": "FreeLaw"
} |
925 A.2d 782 (2007)
James J. WINSCHEL, Administrator of the Estate of Robert J. Winschel, Jr., Appellant
v.
Ajay JAIN, M.D., Appellee.
James J. Winschel, Administrator of the Estate of Robert J. Winschel, Jr., Appellee
v.
Ajay Jain, M.D., Appellant.
Superior Court of Pennsylvania.
Argued November 25, 2006.
Filed May 1, 2007.
Reargument Denied July 6, 2007.
*785 Matthew J. McLaughlin, Erie, for Winschel.
Ronald M. Puntil, Pittsburgh, for Jain.
BEFORE: ORIE MELVIN, McCAFFERY, and TAMILIA, JJ.
OPINION BY McCAFFERY, J.:
¶ 1 Appellant, James J. Winschel, administrator of the estate of Appellant's decedent, Robert J. Winschel, Jr. (hereinafter "Decedent"), appeals from the judgment entered against him after the trial court denied his motion for a new trial in a medical malpractice action brought against Appellee and Cross-Appellant, Ajay Jain, M.D. (hereinafter "Dr. Jain"). Specifically, Appellant contends that the verdict was against the weight of the evidence because, even though the jury found Dr. Jain negligent, it ignored undisputed evidence that Dr. Jain's negligence was the cause of Decedent's death. After careful review, we reverse and grant a new trial.
¶ 2 The relevant facts and procedural history of this case are as follows. In February 2002, after an episode of chest pain, Decedent was referred by Dr. Hrinda, his family physician, to Dr. Jain, a cardiologist, for a stress test. During the office visit, Dr. Jain obtained a medical history from Decedent, which revealed multiple risk factors for coronary artery disease, including diabetes, cigarette smoking, elevated cholesterol, hypertension, and a family history of premature heart disease. Dr. Jain began to administer a treadmill stress test, but had to halt the test prior to completion because of Decedent's complaints of fatigue. Dr. Jain then performed another diagnostic test, known *786 as a persantine SPECT scan test,[1] on Decedent. No abnormalities were detected by these diagnostic tests, and no further testing was recommended. However, on May 14, 2002, approximately three months after the tests were conducted, Decedent suffered a cardiac event and died at age forty-five. Dr. Mary Ellen Reitz conducted an autopsy and concluded that the cause of death was acute myocardial infarction, secondary to complete obstruction of the left coronary artery.
¶ 3 On August 6, 2003, Appellant filed suit against Dr. Jain, alleging negligence in Dr. Jain's failure to diagnose the obstruction in Decedent's left coronary artery. At trial, Appellant specifically alleged that the treatment of Decedent fell below the standard of care for a cardiologist because Dr. Jain had failed to recommend that Decedent, who had virtually every risk factor for coronary artery disease and who had suffered chest pain, undergo cardiac catheterization in order to rule out a life-threatening arterial obstruction.
¶ 4 To support this theory, Appellant offered the testimony of two board-certified cardiologists, Dr. Robert Stark and Dr. Halbert Feinberg, both of whom testified that Dr. Jain's treatment of Decedent fell below the standard of care for a cardiologist because Dr. Jain had failed to recommend a catheterization. In turn, the defense presented the testimony of two other board-certified cardiologists, Dr. Jeffrey Garret and Dr. George Beller. They opined that Dr. Jain's treatment of Decedent had not deviated from the appropriate standard of care because, although Decedent had multiple risk factors for coronary artery disease, his stress test and SPECT test were normal and thus cardiac catheterization was not indicated.
¶ 5 On the issue of causation, Appellant again relied on the testimony of Drs. Stark and Feinberg. These two expert witnesses opined, based on Decedent's medical history and Dr. Reitz's autopsy report, that Decedent's death had resulted from a total or nearly total occlusion of his left coronary artery. They further noted, based on the autopsy report, that Decedent had suffered several mini heart attacks prior to his fatal cardiac event, as revealed by multiple regions of scarring in his heart. Therefore, in the opinion of Appellant's cardiology experts, when Dr. Jain tested Decedent less than three months before his death, his left coronary artery was already substantially occluded and the occlusion would have been detected by catheterization. Appellant also offered the testimony of Dr. Eric Vey, a board-certified forensic pathologist for the Erie County Coroner's Office. In agreement with Drs. Stark and Feinberg, Dr. Vey testified that the near total occlusion of Decedent's left coronary artery was a factual cause of his death, had developed over a long period of time, and would have been clinically significant three months before his death, i.e., at the time that Dr. Jain administered the stress test. Drs. Stark, Feinberg, and Vey all agreed that lesions in the proximal region of the left anterior descending coronary artery ("LAD artery".), such as the lesion detected upon autopsy of Decedent, are typically referred to as "widow makers" because they frequently result in sudden death. (Notes of Testimony ("N.T.") Trial, 2/15/06, at 52, 121-22, 163).
*787 ¶ 6 Defense expert Dr. Beller conceded that Decedent had died because of an almost totally occluded LAD artery and that the artery would not have been normal three months before his death, i.e., at the time he was seen by Dr. Jain. Although Dr. Beller testified that he was unable to estimate the extent of the occlusion of Decedent's LAD artery three months before the fatal cardiac event, he also acknowledged that, had catheterization been performed, it would have detected whatever occlusion was there, even if the occlusion had been only 40-50 percent.[2]
¶ 7 The jury returned a verdict in favor of Dr. Jain. Specifically, the jury indicated that although it found the conduct of Dr. Jain to be below the applicable standard of care, it also found that Dr. Jain's negligence was not a factual cause of Decedent's death. Appellant filed a motion for post-trial relief seeking a new trial. Appellant argued that the jury's conclusion as to causation was against the weight of the evidence and indeed was inconsistent with all the medical testimony as to causation that had been proffered at trial. In response, Dr. Jain then also filed a motion for post-trial relief, contending that the trial court had erred in excluding the deposition testimony of pathologist Dr. Reitz, who had performed the autopsy on Decedent. Dr. Jain had sought at trial to introduce portions of Dr. Reitz's deposition in which she had suggested the possibility of an alternate cause of death; however, the trial court had excluded the testimony as too speculative and inconsistent with findings in her autopsy report. Dr. Jain also contended in his post-trial motion that the trial court had erred by precluding the testimony of other expert witnesses regarding possible alternate causes of death and regarding the standard of care for a cardiologist.
¶ 8 The trial court denied Appellant's post-trial motion, thus rendering Dr. Jain's motion moot. Appellant filed a motion for reconsideration, which was also denied. Judgment was entered on the verdict in favor of Dr. Jain on June 1, 2006.[3] Appellant appealed to this Court and Dr. Jain cross-appealed.
¶ 9 Appellant raises one issue for our review which he articulates as follows:
Whether the trial court abused its discretion and erred in denying [Appellant's] motion for a new trial where the jury concluded that defendant physician was negligent in failing to recommend a catheterization be performed on [Appellant's] decedent on February 22, 2002, in order to detect a blockage in [Appellant's] decedent's left coronary artery that caused his death on May 14, 2002, at age 45, but also inexplicably determined that the negligence was not a factual cause of the death despite the fact that all of the medical testimony and evidence proffered at trial conclusively established that the blockage existed and would have been detectable on February 22, 2002, through the use of a catheterization; [Appellant's] decedent's death was caused by the blockage in the left coronary artery; [Appellant's] decedent was absolutely salvageable if the blockage had been diagnosed and defendant physician did not present any medical testimony or evidence challenging causation.
(Appellant's Brief at 5). Stated more succinctly, Appellant's issue is a contention *788 that the verdict was against the weight of the evidence. Appellant seeks a new trial on damages only, on causation and damages, or on all issues.
¶ 10 Dr. Jain's cross-appeal presents the following issue with multiple subparts for our review:
Whether or not the Trial Court abused its discretion or committed an error of law by denying [Dr. Jain's] Motion for Post-Trial Relief, requesting a new trial on the basis that the Trial Court erred as a matter of law [a] in precluding the testimony of Dr. Reitz; [b] in precluding [Dr. Jain] from offering alternative theories of causation; [c] in precluding Drs. Beller and Garrett from testifying as to the standard of care[;] and [d] in limiting the testimony of Dr. Beller.
(Dr. Jain's Brief at 2).
¶ 11 We begin by addressing Appellant's challenge to the weight of the evidence, guided by the following well-established principles.
A new trial based on weight of the evidence issues will not be granted unless the verdict is so contrary to the evidence as to shock one's sense of justice; a mere conflict in testimony will not suffice as grounds for a new trial. Upon review, the test is not whether this Court would have reached the same result on the evidence presented, but, rather, after due consideration of the evidence found credible by the jury, and viewing the evidence in the light most favorable to the verdict winner, whether the court could reasonably have reached its conclusion. Our standard of review in denying a motion for a new trial is to decide whether the trial court committed an error of law which controlled the outcome of the case or committed an abuse of discretion.
Daniel v. William R. Drach Co., Inc., 849 A.2d 1265, 1267-68 (Pa.Super.2004) (quotations and citations omitted). We stress that if 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. Carrozza v. Greenbaum, 866 A.2d 369, 380 (Pa.Super.2004), appeal granted in part on unrelated grounds, 584 Pa. 154, 882 A.2d 1000 (2005). 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. Kruczkowska v. Winter, 764 A.2d 627, 629 (Pa.Super.2000).
¶ 12 Medical malpractice is a species of negligence; therefore, to prevail in a medical malpractice suit, a plaintiff must plead and prove the four elements of negligence:
(1) the physician owed a duty to the patient; (2) the physician breached that duty; (3) the breach of duty was the proximate cause of, or a substantial factor in, bringing about the harm suffered by the patient; and (4) the damages suffered by the patient were a direct result of that harm.
Corrado v. Thomas Jefferson University Hospital, 790 A.2d 1022, 1030 (Pa.Super.2001) (citation omitted).
¶ 13 To establish the causation element in a professional negligence action, the plaintiff is not required to show that the defendant's negligence was the actual "but for" cause of the plaintiff's harm. Carrozza, supra at 380. Rather, under the "increased-risk-of-harm" standard, the plaintiff must introduce sufficient evidence that the defendant's conduct increased the risk of the plaintiff's harm. Id. Our Supreme Court has provided the following guidance in applying this standard:
Once a plaintiff has demonstrated that the defendant's acts or omissions . . . *789 have increased the risk of harm to another, such evidence furnishes the basis for the fact-finder to go further and find that such increased risk was in turn a substantial factor in bringing about the resultant harm; the necessary proximate cause will have been made out if the jury sees fit to find cause in fact.
Sutherland v. Monongahela Valley Hospital, 856 A.2d 55, 60 (Pa.Super.2004) (quoting Hamil v. Bashline, 481 Pa. 256, 272, 392 A.2d 1280, 1288 (1978)). In other words, once the plaintiff introduces evidence that a defendant-physician's negligent acts or omissions increased the risk of the harm ultimately sustained by the plaintiff, then the jury must be given the task of balancing the probabilities and determining, by a preponderance of the evidence, whether the physician's conduct was a substantial factor in bringing about the plaintiff's harm. Carrozza, supra at 380-81.
An example of this type of case is a failure of a physician to timely diagnose breast cancer. Although timely detection of breast cancer may well reduce the likelihood that the patient will have a terminal result, even with timely detection and optimal treatment, a certain percentage of patients unfortunately will succumb to the disease. This statistical factor, however, does not preclude a plaintiff from prevailing in a lawsuit. Rather, once there is testimony that there was a failure to detect the cancer in a timely fashion, and such failure increased the risk that the woman would have either a shortened life expectancy or suffered harm, then it is a question for the jury whether they believe, by a preponderance of the evidence, that the acts or omissions of the physician were a substantial factor in bringing about the harm.
Mitzelfelt v. Kamrin, 526 Pa. 54, 62-63, 584 A.2d 888, 892 (1990) (cited in Carrozza, supra at 380).
¶ 14 Unless the medical malpractice is obvious and self-evident, expert testimony is required in order for the plaintiff to sustain his or her burden of proof with regard to the elements of duty, breach, and causation. Quinby v. Plumsteadville Family Practice, Inc., 589 Pa. 183, 197, 907 A.2d 1061, 1070 (2006). More specifically, in most instances of medical malpractice, where the events and circumstances of the case are beyond the knowledge of the average layperson,
the plaintiff must present expert testimony that the acts of the medical practitioner deviated from good and acceptable medical standards, and that such deviation was a substantial factor in causing the harm suffered.
Sutherland, supra at 60 (citation omitted); see also Kennedy v. Sell, 816 A.2d 1153, 1158-59 (Pa.Super.2003) (stating that the burden to establish the elements of malpractice rests with the plaintiff and the defendant has no burden of proof). For expert testimony to be admissible, it must be rendered "within a reasonable degree of medical certainty." Carrozza, supra at 379 (citation omitted).
¶ 15 In a negligence case, as in other actions, the jury is charged with fact-finding and credibility assessments. So long as the jury's determinations have support in the record, we will defer to them. For example, in Daniel, supra, 849 A.2d at 1273, the plaintiff and the defendant each proffered evidence as to their respective theories of causation in a slip and fall negligence action. The jury concluded that, although the defendant had been negligent, his negligence was not a substantial factor in causing the plaintiff's injury; hence, the jury rendered a verdict in favor of the defendant. Id. at 1266. The plaintiff *790 appealed, contending that the jury's verdict was against the weight of the evidence. This Court affirmed the judgment, concluding that the trial court did not abuse its discretion in denying the plaintiff's motion for a new trial because the jury had acted well within its purview in determining that the defendant's version of events was more credible. Id. at 1273.
¶ 16 A different result was reached in Cangemi v. Cone, 774 A.2d 1262 (Pa.Super.2001), another case in which a plaintiff-appellant contended that a jury verdict was against the weight of the evidence. In Cangemi, the jury found that the defendant-physician had been negligent in failing to diagnose an abdominal aneurysm, but further concluded that the negligence was not a substantial factor in the death of the decedent and so rendered a verdict in favor of the defendant-physician. Id. at 1265. This Court reversed and remanded for a new trial because, contrary to the jury's verdict, causation had not been at issue in the case. The plaintiff's medical expert had testified that, had the aneurysm been diagnosed earlier, surgery would very likely have been successful in saving the decedent's life. The defense did not contest or in any way contradict the plaintiff's statement of causation. Therefore, the panel concluded that there was no rational relationship between the evidence adduced at trial and the jury's determination that the defendant's negligence in failing to diagnose the decedent's condition promptly had not been a substantial factor in the death of the decedent. Id. at 1265-66.
¶ 17 In the case sub judice, Appellant claims that, as in Cangemi, the jury's verdict bears no rational relationship to the evidence presented. The jury found that Dr. Jain had been negligent in his treatment of Decedent, but then also found that the negligence had not been a factual cause of Decedent's death. Appellant contends that, because his expert witnesses established the element of causation with evidence that was uncontradicted and uncontested, the jury's verdict was irrational. We agree.
¶ 18 In the autopsy report prepared by pathologist Dr. Reitz, the cause of Decedent's death is given as acute myocardial infarction secondary to complete obstruction of the left coronary artery. The testimony and the written reports of Appellant's three expert witnesses make expressly clear that all of them concluded that total obstruction of Decedent's LAD artery had led to his sudden death, consistent with the autopsy report.[4] Dr. *791 Jain himself testified that he did not dispute the cause of death as given on the autopsy report, explaining that he was not a pathologist and therefore would rely on the determinations of the pathologist. (N.T., 2/16/06, at 93). At trial, no expert for the defense contested or contradicted the evidence that the cause of Decedent's death was total or near total obstruction of his LAD artery, which had led to sudden cardiac death.
¶ 19 Despite all the uncontradicted evidence as to Decedent's cause of death, Dr. Jain nonetheless insists that the jury might have concluded that Decedent died of an alternative cause, specifically, a stroke. To support this theory, Dr. Jain relies on one small portion of Dr. Vey's testimony in which Dr. Vey stated, in response to defense counsel's direct question, that the only way to rule out a stroke was to perform an autopsy of the brain, which had not been conducted on Decedent. (N.T., 2/15/06, at 180). However, Dr. Jain ignores other portions of Dr. Vey's testimony which make explicitly clear that he had found no indication that Decedent had suffered a stroke:
[Appellant's Counsel]: Is there any evidence, Doctor, whatsoever after reviewing *792 the autopsy report and the tissue samples of [Decedent's] heart, that [he] died of anything else but a total occlusion of the left coronary artery?
[Dr. Vey]: No.
[Appellant's Counsel]: And is there any evidence, for instance, that given the fact that an autopsy wasn't performed on the brainis there any evidence that a stroke or some problem in the brain caused [Decedent's] death as opposed to a total occlusion?
[Dr. Vey]: Not to my knowledge, no.
(N.T., 2/15/06, at 182).
¶ 20 Neither Dr. Vey's testimony, nor any other evidence presented at trial, constitutes evidence that Decedent died of a stroke or any abnormality other than a totally obstructed LAD artery. Furthermore, the trial court expressly acknowledged that an LAD artery occlusion caused Decedent's death. (See Trial Court Opinion, dated April 3, 2006, at 1; see also N.T., 2/16/06, at 177, where the court stated that it was known from objective evidence that Decedent "died from an occluded or close to being occluded [LAD] artery").
¶ 21 It was also undisputed at trial that, had Decedent undergone a catheterization, his risk of a fatal cardiac event due to LAD artery obstruction would have decreased. Taken in steps, the evidence for decreased risk is as follows: (1) a partial obstruction in Decedent's LAD artery was present three months before his death, i.e., at the time Dr. Jain administered a stress test; (2) the partial obstruction could have been detected at that time had a catheterization test been performed; and (3) once the obstruction was diagnosed, appropriate medical intervention could have diminished its extent and thereby decreased the risk that it would cause Decedent's death.
¶ 22 With regard to step (1), the witnesses agreed that Decedent's LAD artery would have been obstructed to some degree three months before his death, because these types of lesions take a long time to develop. That there was considerable disagreement as to the precise extent of the obstruction does not detract from the fact that all agreed that the artery was not normal and some obstruction was present. Dr. Stark, who testified for Appellant, opined that the LAD artery obstruction at the time of Decedent's stress test in February 2002, would have been almost as extensive as it was at the time of his death three months later in May 2002. See supra n. 4. Dr. Vey, the forensic pathologist who testified for Appellant, also opined that the LAD artery would have been at least 75% obstructed in February 2002. (N.T., 2/15/06, at 165, 167). Dr. Vey further testified that he agreed with the deposition testimony of Dr. Reitz, who had conducted the autopsy on Decedent, as to her opinion that the obstruction in the LAD artery was clinically significant in February 2002, because this type of lesion takes years to develop. (Id. at 165, 167). Dr. Jain acknowledged that the obstruction had developed over a long period of time, but he testified that he could not estimate the extent of the obstruction when he saw Decedent in February 2002. (N.T., 2/16/06, at 90, 91). While Dr. Jain testified that no one (other than "God") could state with certainty the extent of the blockage in February 2002, he also testified that he was not saying that the estimates of Drs. Vey and Reitz as to extent of blockage were wrong. (Id. at 90, 93). Finally, Dr. Beller, a defense witness, acknowledged that there would have been some narrowing of Decedent's LAD artery in February 2002, but he testified that he had no idea what the extent of obstruction would have been at that time. (N.T., 2/20/06, at 71-75). Thus, while the witnesses *793 differed in their quantitative estimate of the extent of obstruction in Decedent's LAD artery in February 2002, they all agreed that some degree of obstruction would have been present at that time.[5]
¶ 23 With regard to step (2), whether the partial obstruction would have been detected had a catheterization been performed on Decedent, several witnesses for both parties testified as to the very high sensitivity of catheterization in detecting an arterial obstruction. Specifically, defense cardiology expert Dr. Garrett opined that catheterization was approximately 100 percent accurate in detecting an obstructed left coronary artery. (N.T., 2/17/06, at 50-51). Another defense cardiology expert, Dr. Beller, testified that the accuracy was 100 percent if there was total obstruction of the artery. (N.T., 2/20/06, at 61). Dr. Jain himself testified that the accuracy rate of catheterization in detecting an obstruction is virtually 100 percent. (N.T., 2/16/06, at 85). Appellant's experts also testified that Decedent's arterial obstruction would have been detected by catheterization three months prior to his death. No evidence was offered to the contrary. Finally, Appellant presented uncontested evidence that, had Decedent's occlusion of the LAD artery been diagnosed and appropriately treated, his fatal cardiac event in May 2002 could very likely have been avoided.
¶ 24 In summary, the undisputed evidence presented at trial establishes the following. When Decedent underwent a stress test in February 2002, three months before his death, his LAD artery exhibited some degree of obstruction. Had Decedent also undergone catheterization, the LAD artery obstruction would very likely have been diagnosed, and medical and/or surgical intervention would very likely have been successful. However, catheterization was not performed, the partial obstruction went undiagnosed, and Decedent died in May 2002, of a cardiac event precipitated by a totally or near totally obstructed LAD artery.
¶ 25 Given this undisputed evidence, we must conclude that Appellant succeeded in establishing the causation element under the increased risk of harm standard. Dr. Jain's failure to diagnose Decedent's obstructed LAD artery clearly increased the risk that Decedent would experience a fatal cardiac event due to the obstructed artery. The jury's conclusion that, although Dr. Jain was negligent, his negligence was not a factual cause of Decedent's death, bears no rational relationship to the undisputed evidence. Therefore, we reverse the judgment against Appellant and grant Appellant a new trial.[6]
¶ 26 We now turn to Dr. Jain's questions for review, all of which are challenges *794 to the trial court's decisions to exclude certain expert testimony. Because some if not all of these issues may arise again in the context of a new trial, we will consider their merits. When we review a trial court's ruling on the admission or exclusion of evidence, including the testimony of an expert witness, our standard is well-established and very narrow. Our job is decidedly not to assess independently the proffered testimony. Rather, the decision to admit or exclude evidence lies within the sound discretion of the trial court, and we may reverse only upon a showing of abuse of discretion or error of law. Quinby, supra at 210, 907 A.2d at 1078; Smith v. Paoli Memorial Hospital, 885 A.2d 1012, 1016 (Pa.Super.2005). "An abuse of discretion may not be found merely because an appellate court might have reached a different conclusion, but requires a result of manifest unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of support so as to be clearly erroneous." Grady v. Frito-Lay, Inc., 576 Pa. 546, 559, 839 A.2d 1038, 1046 (2003). In addition, "[t]o constitute reversible error, an evidentiary ruling must not only be erroneous, but also harmful or prejudicial to the complaining party." McClain v. Welker, 761 A.2d 155, 156 (Pa.Super.2000) (citation omitted).
¶ 27 In order for opinion testimony of an expert witness to be admissible in a medical malpractice case, the testimony must be rendered within a reasonable degree of medical certainty. Carrozza, 866 A.2d at 379. The trial court must look to the substance and the entirety of the testimony in order to determine whether it meets this standard. "That an expert may have used less definite language does not render his entire opinion speculative if at some time during his testimony he expressed his opinion with reasonable certainty." Id. (citation omitted). The expert need not testify with absolute certainty or rule out all possible alternative causes of the plaintiff's injury. Corrado, 790 A.2d at 1031. However, the expert does not meet the required standard of certainty if he or she testifies "that the alleged cause `possibly', or `could have' led to the result . . . or even that it was `very highly probable' that it caused the result." Id. (citation omitted). Expert testimony that does not meet the standard of reasonable degree of medical certainty is properly excluded.
¶ 28 In Dr. Jain's first evidentiary challenge, he contends that the trial court erred in excluding or severely limiting the testimony of Dr. Reitz, the pathologist who conducted the autopsy on Decedent the day after his death and apparently at the request of the family. At trial, Dr. Jain proffered the testimony of Dr. Reitz to support his theory that Decedent's death may have been caused by an event other than an occluded LAD artery.
¶ 29 In Dr. Reitz's autopsy report, which was prepared shortly after the autopsy in May 2002, she concluded that the cause of Decedent's death was a myocardial infarction secondary to a completely obstructed left coronary artery. When she was deposed in June 2004, she articulated a more complex view of the cause of death, noting that, along with an occluded left coronary artery, Decedent also had an aberrant circumflex artery which "might have" led to a fatal acute cardiac arrhythmia, as this type of abnormal arterial structure "does set people up" for arrhythmias and can lead to sudden death. (See Dr. Jain's Brief at 24-25). Although Dr. Reitz noted the finding of an aberrant circumflex artery in her autopsy report, she did not indicate or imply that it was a contributing cause of Decedent's death in that report.
¶ 30 At trial, Dr. Jain sought to present Dr. Reitz as an expert witness as to the issue of cause of death, but the trial *795 court limited her testimony to the cause of death indicated in the autopsy report, i.e., myocardial infarction secondary to complete obstruction of the left coronary artery. The court would not allow her to testify as to statements that she made in her deposition regarding the aberrant circumflex artery and its possible contributing role in decedent's death. (See N.T., 2/14/06, at 6-7). The trial court gave two major and independent reasons for its ruling on Dr. Reitz's testimony. First, the trial court found that Dr. Reitz's statements concerning the possible role of Decedent's aberrant circumflex artery were highly speculative. At no time did she state her opinion regarding the possible role of the aberrant circumflex artery in Decedent's death with the requisite degree of medical certainty. (See id. at 7; N.T., 2/16/06, at 70, 72). Secondly, the trial court found that, notwithstanding Dr. Reitz's deposition testimony concerning the aberrant circumflex artery, she had unequivocally concluded that Decedent's totally obstructed left coronary artery was, at the very least, a major contributing factor in his death. (N.T., 2/16/06, at 73). Her autopsy report listed only one cause of deathmyocardial infarction secondary to a completely obstructed left coronary artery. Her deposition testimony brought in a second possible contributing factor, but it most certainly did not refute the major role played by the obstructed left coronary artery in Decedent's fatal cardiac event.
¶ 31 Based upon our review of the relevant documents and testimony, we conclude that the trial court did not abuse its discretion in excluding Dr. Reitz's testimony concerning a cause of death other than the obstructed left coronary artery. The trial court's rationales for excluding the evidence are well-supported by the record and the law, and therefore we will not disturb the trial court's ruling.
¶ 32 In Dr. Jain's second evidentiary challenge, he contends that the trial court erred in precluding him from offering testimony as to the possibility that the cause of Decedent's death had been a stroke. Specifically, Dr. Jain contends that the court did not allow him to cross-examine Dr. Vey, Appellant's forensic pathologist expert, concerning the possibility that Decedent had suffered a stroke which would not have been detected at autopsy because the brain had not been autopsied. A thorough review of the relevant testimony refutes Dr. Jain's contention.
¶ 33 The following excerpts are from a sidebar discussion between counsel and the court that took place during Dr. Vey's cross-examination concerning cause of death:
[Court]: You [Defense Counsel] can say, did you autopsy the brain. . . . Did you autopsy the carotids, but that's as far as it goes.
[Defense Counsel]: Fine. I didn't say I was going to go any further.
[Court]: . . . Absent any other evidence, you're not going to be able to argue to this jury that there's another cause of death or there's a reasonable probability there was another cause of death.
(N.T., 2/16/06, at 176).
[Court]: What I'm saying is you cannot cross-examine a witness and then interject at the time of your closing argument a conclusion that isn't supported by the evidence in the case from some source. So, in other words, you cannot argue an ultimate cause of death theory unless there's some evidence to support that argument. That's all I'm saying.
[Defense Counsel]: Okay.
[Court]: And as of this point you have no other evidence to support [an alternate cause of death]. But can you challenge *796 [Dr. Vey's] testimony and his conclusions? Absolutely. And that would include questions dealing with the extent of the autopsy and what organs or vessels or what parts of the body were not autopsied or examined. That's okay.
[Defense Counsel]: And just so I'm clear, are you saying that I can ask [Dr. Vey], if I choose to, Doctor, is there evidence that he had a stroke or there is no evidence that he didn't have a stroke?
[Court]: Yeah, you can ask that.
(N.T., 2/16/06, at 179-80).
¶ 34 Immediately following this sidebar, defense counsel continued his cross-examination of Dr. Vey as follows:
[Defense Counsel]: Doctor, I had asked you whether there was an autopsy of the carotid arteries and you indicated that there was not, correct?
[Dr. Vey]: That's correct.
[Defense Counsel]: There was also no autopsy of the brain, correct?
[Dr. Vey]: That's correct.
[Defense Counsel]: And the only way that you could rule out a stroke in this case would be with an autopsy of the brain, correct?
[Dr. Vey]: That's correct.
(N.T., 2/16/06, at 80).
¶ 35 Thus, contrary to Dr. Jain's contentions, the trial court did allow rebuttal of Dr. Vey's testimony with questions as to possible omissions in the autopsy procedure and the resulting implications for interpretation of the autopsy findings. However, the court properly refused to allow defense counsel to argue alternate theories of death for which there was no evidence. We conclude that the trial court properly stated and applied the law and thus did not abuse its discretion.
¶ 36 In Dr. Jain's third evidentiary challenge, he contends that the trial court erred in precluding the testimony of his two cardiology experts, Drs. Garrett and Beller, as to the applicable standard of care. Specifically, these two experts would have testified that, because Decedent had been referred by his family physician to Dr. Jain only for a stress test, the applicable standard of care in this case required only that Dr. Jain perform the stress test properly and report the results accurately to the referring physician. In the opinion of Drs. Garrett and Beller, the standard of care did not include a duty to make any recommendations for future treatment, based, e.g., on the cardiologist's knowledge of the potential for false negatives of the tests performed and/or the patient's medical history. Drs. Garrett and Beller analogized the standard of care for a cardiologist who had been asked only to perform a stress test to that of a radiologist asked to perform a specific radiological test. The trial court refused to admit this testimony, concluding that a cardiologist, like any other physician, has an independent duty to the patient that cannot be circumscribed by a referring physician. (See N.T., 2/14/06, at 9-10).
¶ 37 It is beyond any question that, in a cognizable medical malpractice claim, the defendant-physician must owe the patient a duty of care. Whether a duty of care exists in any given set of circumstances is a question of law. See, e.g., Long v. Ostroff, 854 A.2d 524, 528 (Pa.Super.2004), appeal denied, 582 Pa. 700, 871 A.2d 192 (2005) (holding as a matter of law that a general practitioner's duty of care does not prohibit an extramarital affair with a patient's spouse).
¶ 38 Duty is measured against the standard of care appropriate to the training of the physician and the time and place of the treatment. Our Supreme Court has explained the standard of care *797 appropriate to a non-specialist physician as follows:
The standard of care required of a physician . . . is well-settled. . . . A physician who is not a specialist is required to possess and employ in the treatment of a patient the skill and knowledge usually possessed by physicians in the same or a similar locality, giving due regard to the advanced state of the profession at the time of the treatment; and in employing the required skill and knowledge he is also required to exercise the care and judgment of a reasonable man.
Joyce v. Boulevard Physical Therapy & Rehabilitation Center, P.C., 694 A.2d 648, 654 (Pa.Super.1997) (quoting Donaldson v. Maffucci, 397 Pa. 548, 553, 156 A.2d 835, 838 (1959)). However, this Court has consistently held that a specialist physician is held to a higher standard of care than a general practitioner when the specialist is acting within his or her specialty. See, e.g., id.; Maurer v. Trustees of the University of Pennsylvania, 418 Pa.Super. 510, 614 A.2d 754, 758 (1992) (en banc). More specifically, the specialist "is expected to exercise that degree of skill, learning and care normally possessed and exercised by the average physician who devotes special study and attention to the diagnosis and treatment of diseases within the specialty." Joyce, supra at 654; Maurer, supra at 758 (citation omitted).
¶ 39 Dr. Jain's argument, i.e., that his duty to Decedent was defined by the referral instructions from Decedent's general practitioner, contradicts the clear and precedential statements of law discussed above. As a cardiologist acting within his specialty, Dr. Jain must be held to a higher standard of care than a general practitioner, as a matter of law. Dr. Jain had devoted special study and attention to the diagnosis and treatment of cardiac disease, which includes interpretation of the results of diagnostic tests, with the potential confounding factor of false negative tests, and appreciation for the significance of family medical history to an individual's diagnosis of cardiac disease and subsequent prognosis. Despite these specialized and relevant skills of a cardiologist, Dr. Jain essentially argues that, in many cases, a referring general practitioner should define the standard of care for a cardiologist who is acting within the specialty of cardiology. Dr. Jain's argument contradicts the law of the Commonwealth, and as such, is untenable. Therefore, the trial court acted properly in holding that Dr. Jain could not argue that his standard of care was circumscribed by the referral from Decedent's general practitioner.
¶ 40 In Dr. Jain's fourth and final issue, he alleges that the trial court erred in limiting the testimony of Dr. Beller as to the status of Decedent's left coronary artery three months before his death. In Dr. Beller's report, he speculated that the obstruction in Decedent's coronary artery was not as severe at the time of the stress test as it was three months later at the time of death. Dr. Jain contends that Dr. Beller "should have been permitted to give his opinion regarding the fact that [Decedent] may not have had a subtotal occlusion of the left coronary artery at the time of [the] stress test." (Dr. Jain's Brief at 31). Dr. Jain's allegation is totally lacking in merit for several reasons.
¶ 41 First, even Dr. Beller acknowledged that his opinion regarding the extent of the obstruction was completely speculative. As Dr. Jain acknowledges, the relevant portion of Dr. Beller's report begins "[i]t could be speculated. . . ." (Dr. Jain's Brief at 30). Mere speculation does not constitute evidence and was properly excluded.
¶ 42 Second, that the left coronary artery was in all likelihood not totally obstructed three months before Decedent's *798 death was not disputed. Even Appellant's experts testified that three months prior to Decedent's death the artery was partially, not totally obstructed. However, it was also not disputed that catheterization would have detected a subtotal obstruction in Decedent's coronary artery.
¶ 43 Third, Dr. Beller was indeed allowed to testify in response to a question from Appellant's counsel that he had "no idea of the degree of narrowing" of Decedent's coronary artery three months before his death. (N.T., 2/20/06, at 71). Dr. Jain's final issue is thus wholly devoid of any merit.
¶ 44 In summary, we conclude after careful review that the trial court erred in failing to grant Appellant's post-trial motion for a new trial on all issues. Therefore, we reverse the judgment and grant Appellant a new trial. We also conclude that none of Dr. Jain's issues have merit.
¶ 45 Judgment reversed. New trial granted.
¶ 46 ORIE MELVIN, J. files concurring and dissenting statement.
CONCURRING AND DISSENTING STATEMENT BY ORIE MELVIN, J.:
¶ 1 I concur in the majority's disposition granting a new trial on the basis that the verdict was against the weight of the evidence. I also agree with the majority's resolution of Dr. Jain's first two issues in his cross-appeal. However, I would find that his third and fourth evidentiary challenges have merit.
¶ 2 There is no dispute that a cardiologist acting within his or her specialty must be held to a higher standard of care than a general practitioner, as a matter of law. See Maurer, supra. However, I believe the testimony of cardiology experts Drs. Garrett and Beller should have been permitted in order for Dr. Jain to draw the distinction he wishes to present for the jury between the role of a cardiologist who is asked to perform a stress test as opposed to the role of a cardiologist who is asked to perform a comprehensive cardiology consultation.
¶ 3 I would also find the trial court erred in precluding Dr. Beller from giving his opinion regarding the fact that decedent may not have had a subtotal occlusion of the left coronary at the time of the stress test. Although a review of the expert report clearly reveals that Dr. Beller would have been unable to specifically state the extent of the occlusion present at that time, I believe that he should have been permitted to testify consistent with his report that "[f]alse negative studies are rarely seen in patients with subtotal occlusions of the proximal left coronary artery." Therefore, I would permit Dr. Jain's experts to testify with respect to these matters upon retrial. Accordingly, I respectfully dissent.
NOTES
[1] At trial Dr. Jain explained that the persantine SPECT test is a diagnostic test to detect coronary disease, which is performed by injecting radionuclide tracers intravenously and generating images of the heart as the tracer travels through. (See Notes of Testimony ("N.T.") Trial, 2/16/06, at 17; see also N.T., 2/15/06, at 27, for concurring testimony of Dr. Robert Stark).
[2] Appellant also presented expert testimony as to economic damages, i.e., the wages Decedent would have earned throughout his expected working life.
[3] The jury verdict was rendered on February 22, 2006, but apparently due to an oversight, there was a delay of several months in entering judgment on the verdict.
[4] The following excerpts of testimony are illustrative of Appellant's experts' opinions:
Dr. Vey, a forensic pathologist, reviewed the autopsy report, as well as slides of tissue samples from the autopsy, and then testified as follows:
[Appellant's Counsel]: Do you have an opinion within a reasonable degree of medical certainty as to the cause of death in this case?
[Dr. Vey]: Yes, I do.
[Appellant's Counsel]: And can you tell the jury what that opinion is?
[Dr. Vey]: Yes. My opinion . . . was that the cause of death was cardiac in nature and could be appropriately classified as what's termed a sudden cardiac death.
* * *
[Appellant's Counsel]: And can you tell the jury whatto what extent [Decedent's] left coronary artery was blocked?
[Dr. Vey]: The records indicate basically that the left coronary artery was either completely occluded or near totally occluded. Now, my review of the microscopic slides of the left coronary artery lesion in question reveals that the occlusion was near totally, almostbasically there was a pinpoint, residual lumen through which blood could pass, but otherwise the artery was completely blocked with fibrocalcific atherosclerotic plaque.
[Appellant's Counsel]: And, Doctor, do you have an opinion within a reasonable degree of medical certainty as to whether or not that either total occlusion or near total occlusion in [Decedent's] LAD artery . . . was a factual cause of [his] death on May 14, 2002?
[Dr. Vey]: Yes, in my opinion it was.
(N.T., 2/15/06, at 159-61).
Dr. Stark, Appellant's cardiologist expert, testified as follows:
[Appellant's Counsel]: Based upon your review of the records, including the autopsy report and the tissue sample slides of [Decedent's] heart that . . . were harvested at autopsy, do you have an opinion within a reasonable degree of medical certainty as to the cause of [Decedent's] death eighty[-]two days after he was discharged from Defendant Jain's care?
[Dr. Stark]: I do.
[Appellant's Counsel]: And can you tell me what your opinion is, please?
[Dr. Stark]: It was a heart attack from that blockage. It may also have been an acute arrhythmia, that is, a fatal heart rhythm that was caused by that heart attack. That frequently happens when a segment of heart muscle dies.
[Appellant's Counsel]: Do you have an opinion within a reasonable degree of medical certainty as to whether or not the occlusionalmost complete occlusion noted in [Decedent's] LAD artery was a substantial factor in causing [his] death?
[Dr. Stark]: Yes.
[Appellant's Counsel]: And what is your opinion?
[Dr. Stark]: Definitely was.
* * *
[Appellant's Counsel]: Doctor, do you have an opinion within a reasonable degree of medical certainty as to whether or not the severe occlusion in [Decedent's] LAD artery noted at autopsy on May 15, 2002 would have been severe eighty[-]two days earlier when Doctor Jain treated [Decedent] on February 22, 2002?
[Dr. Stark]: Yes, I do.
[Appellant's Counsel]: And what is your opinion on that issue?
[Dr. Stark]: It would have been just about as severe as it was on the day he died. The lesion would have been there and almost the same size.
[Appellant's Counsel]: And how do you arrive at that opinion; can you tell the jury?
[Dr. Stark]: Lesions like this grow slowly over time, like calcium depositing in a water pipe in an older home. It doesn't just deposit in one or two months, it takes months and years.
(N.T., 2/15/06, at 53-55). (Dr. Stark's deposition testimony was shown by videotape at trial to the jury.)
Dr. Feinberg, Appellant's other cardiologist expert, also gave testimony as to the cause of Decedent's death:
[Appellant's Counsel]: Doctor, do you have an opinion within a reasonable degree of medical certainty as to whether the occlusion in [Decedent's] LAD artery . . . was the cause of his death?
[Dr. Feinberg]: Yes.
[Appellant's Counsel]: And what is your opinion?
[Dr. Feinberg]: That it was the cause of death.
(N.T., 2/15/06, at 135).
[5] Dr. Jain attempts to rely on the fact that Appellant did not establish that Decedent's LAD artery was totally obstructed when Dr. Jain administered the stress test three months before decedent's death. We agree that Appellant did not prove that the artery was completely obstructed at that time. However, we also conclude that Appellant was not required to prove complete or nearly complete obstruction of the LAD artery three months before death. Appellant did establish that the artery was partially obstructed at that time and, as explained in the text infra, partial obstruction was sufficient to generate an increased risk of harm due to failure to diagnose the obstruction.
[6] Dr. Jain also argues that Appellant waived his weight of the evidence claim by failing to raise it prior to the discharge of the jury. This argument is totally lacking in merit in light of our Supreme Court's holding in Criswell v. King, 575 Pa. 34, 45, 834 A.2d 505, 512 (2003) (holding that "a claim challenging the weight of the evidence is not the type of claim that must be raised before the jury is discharged").
| {
"pile_set_name": "FreeLaw"
} |
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 19-7588
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
AMELIA TURNER,
Defendant - Appellant.
Appeal from the United States District Court for the Western District of Virginia, at Big
Stone Gap. James P. Jones, District Judge. (2:09-cr-00003-JPJ-1)
Submitted: March 10, 2020 Decided: March 13, 2020
Before NIEMEYER and AGEE, Circuit Judges, and SHEDD, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
Amelia Turner, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Amelia Turner appeals the district court’s order denying her 18 U.S.C.
§ 3582(c)(1)(B) (2018) motion for a sentence reduction. We have reviewed the record and
find no reversible error. Accordingly, we affirm for the reasons stated by the district court.
United States v. Turner, No. 2:09-cr-00003-JPJ-1 (W.D. Va. July 23, 2019). We dispense
with oral argument because the facts and legal contentions are adequately presented in the
materials before this court and argument would not aid the decisional process.
AFFIRMED
2
| {
"pile_set_name": "FreeLaw"
} |
157 F.Supp.2d 588 (2001)
Dwight VINCENT,
v.
PRINCE GEORGE'S COUNTY, MD, et al.
No. Civ.A DKC 2000-185.
United States District Court, D. Maryland.
August 6, 2001.
*589 *590 Domenic R. Iamele, Levy and Iamele, Baltimore, MD, Bryan Andrew Levitt, Law Office, Baltimore, MD, for Plaintiff.
Crystal Dexon Mittelstaedt, Office of Law for Prince George's County, Upper Maroboro, MD, for Defendants.
MEMORANDUM OPINION
CHASANOW, District Judge.
Presently pending is the motion for summary judgment by Defendants Prince George's County ("County"); Police Chief John S. Farrell; and Officers Eric Bowman and Alfonso Giscombe.[1] Plaintiff brings the following federal and state causes of action against some or all Defendants: (1) constitutional violations, pursuant to 42 U.S.C. § 1983 (count I); (2) battery (count II); (3) intentional infliction of emotional distress (count III); and (4) negligent hiring, retention and supervision (count IV). No hearing is deemed necessary and the court now rules pursuant to local rule 105.6. For the reasons that follow, the court shall grant the motion.
I. Background
The following facts are undisputed or presented in the light most favorable to Plaintiff, Dwight Vincent. On January 20, 1997, Vincent and several friends attended *591 C.J.'s Nightclub ("C.J.'s") in Oxon Hill, Maryland.[2] A flower vendor at C.J.'s accused Plaintiff of stealing flowers. A verbal exchange ensued between the two, at which time three uniformed County officers, including Defendants Bowman and Giscombe, approached the table and forcibly removed Vincent and one of his friends, Marc Williams, from the premises.
Once outside, the officers beat Plaintiff and sprayed his eyes with pepper spray. As a result of the beating, Plaintiff required medical treatment.
II. Standard of Review
It is well established that a motion for summary judgment will be granted only if there exists no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In other words, if there clearly exist factual issues "that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party," then summary judgment is inappropriate. Anderson, 477 U.S. at 250, 106 S.Ct. 2505; see also Pulliam Inv. Co., Inc. v. Cameo Properties, 810 F.2d 1282, 1286 (4th Cir. 1987); Morrison v. Nissan Motor Co., Ltd., 601 F.2d 139, 141 (4th Cir.1979); Stevens v. Howard D. Johnson Co., 181 F.2d 390, 394 (4th Cir.1950). The moving party bears the burden of showing that there is no genuine issue of material fact. Fed. R.Civ.P. 56(c); Pulliam, 810 F.2d at 1286 (citing Charbonnages de France v. Smith, 597 F.2d 406, 414 (4th Cir.1979)).
When ruling on a motion for summary judgment, the court must draw all reasonable inferences in favor of and construe the facts in the light most favorable to the non-moving party. Tinsley v. First Union Nat'l Bank, 155 F.3d 435, 437 (4th Cir. 1998). A party who bears the burden of proof on a particular claim must factually support each element of his or her claim. "[A] complete failure of proof concerning an essential element ... necessarily renders all other facts immaterial." Celotex, 477 U.S. at 323, 106 S.Ct. 2548. Thus, on those issues on which the nonmoving party will have the burden of proof, it is his or her responsibility to confront the motion for summary judgment with an affidavit or other similar evidence. Anderson, 477 U.S. at 256, 106 S.Ct. 2505.
In Celotex, the Supreme Court stated:
In cases like the instant one, where the nonmoving party will bear the burden of proof at trial on a dispositive issue, a summary judgment motion may properly be made in reliance solely on the "pleadings, depositions, answers to interrogatories, and admissions on file." Such a motion, whether or not accompanied by affidavits, will be "made and supported as provided in this rule," and Rule 56(e) therefore requires the nonmoving party to go beyond the pleadings and by her own affidavits, or by the "depositions, answers to interrogatories, and admissions on file," designate "specific facts showing that there is a genuine issue for trial."
Celotex, 477 U.S. at 324, 106 S.Ct. 2548. However, "`a mere scintilla of evidence is not enough to create a fact issue.'" Barwick v. Celotex Corp., 736 F.2d 946, 958-59 (4th Cir.1984) (quoting Seago v. North Carolina Theatres, Inc., 42 F.R.D. 627, 632 *592 (E.D.N.C.1966), aff'd, 388 F.2d 987 (4th Cir.1967)). There must be "sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50, 106 S.Ct. 2505 (citations omitted).
III. Analysis
A. 42 U.S.C. claims against the County
Defendants argue that summary judgment is appropriate as to the County because Plaintiff has failed to plead or otherwise show that his alleged injuries resulted from a County policy or custom. In response, Plaintiff contends that he has alleged sufficient facts to establish that an unconstitutional policy or custom caused his injuries. Plaintiff alleges that his constitutional rights under the Fourth, Fifth, Sixth and Fourteenth Amendments to the United States Constitution were violated by members of the Prince George's County Police Department. Plaintiff alleges that Police Chief Farrell, whom he sues in his official capacity, knew or should have known of the individual officers' actions and gave them express or implied authority to make arrests and fulfill their duties as officers. He alleges that the County knew of their violent propensities but failed to terminate them. He further alleges that the County and Farrell acquiesced in and promoted the officers' actions. In his opposition memorandum, Plaintiff also asserts that although Farrell and others in County government are aware of the Police Department's reputation for use of excessive force, they have taken no action to prevent it.
There is no respondeat superior liability under § 1983, i.e., the County cannot be held liable under the statute simply because there exists an employer-employee relationship between it and the officers who allegedly caused Plaintiff's injuries. Monell v. Dep't of Social Services of the City of New York, 436 U.S. 658, 692, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). The County can be sued directly under § 1983 only if the alleged unconstitutional action Plaintiff complains of resulted from a County policy, practice or custom. Id. at 690-91, 98 S.Ct. 2018 (explaining that liability can be imposed if the action alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, etc. promulgated by the government entity's officers or a governmental custom). Municipal liability will attach only when the policy or custom is both fairly attributable to the municipality as its own and is the moving force behind the specific constitutional violation. Spell v. McDaniel, 824 F.2d 1380, 1387 (4th Cir.1987), cert. denied sub nom. City of Fayetteville v. Spell, 484 U.S. 1027, 108 S.Ct. 752, 98 L.Ed.2d 765 (1988) (citations and internal quotation marks omitted). When a policy is itself unconstitutional in that "it directly commands or authorizes constitutional violations," a plaintiff need not independently prove that the policy caused his or her constitutional violation. See Monell, 436 U.S. at 661, 98 S.Ct. 2018 (unconstitutional policy required pregnant employees to take unpaid leave before it was medically necessary to do so); Spell, 824 F.2d at 1387-88 (citing City of Oklahoma City v. Tuttle, 471 U.S. 808, 822, 105 S.Ct. 2427, 85 L.Ed.2d 791 (1985) ("no evidence ... needed [in such a case] other than a statement of the policy")). However, when, as in this case, there is no facially unconstitutional policy at issue, municipal liability results only if the plaintiff proves that the policy or custom alleged caused his or her constitutional violation. Spell, 824 F.2d at 1387. "Neither the existence of such a policy or custom nor the necessary causal connection can be established by proof *593 alone of the single violation charged." Id. at 1388.
While a plaintiff asserting a § 1983 claim against a municipality is not subjected to a heightened pleading standard, Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 168, 113 S.Ct. 1160, 122 L.Ed.2d 517 (1993) (requiring in § 1983 action only a short plain statement in the pleadings to put defendants on notice of the claims being asserted); "[t]he substantive requirements for proof of municipal liability are stringent," Jordan v. Jackson, 15 F.3d 333, 338 (4th Cir.1994). Indeed, heavy reliance is placed on discovery controls and summary judgment to weed out unmeritorious § 1983 suits before trial. Id. at 340.
Plaintiff's complaint fails to point to any official County policy that he alleges caused his injuries. In his opposition memorandum, however, he argues that Farrell, whom he sues in his official capacity, and others in the County are aware of the Police Department's "reputation" for using excessive force, but have failed to stop it. Thus, he appears to argue that there is a practice or custom of excessive force among County officers. A widespread custom by County officers may be attributed to the County if "the duration and frequency of the practices warrants a finding of either actual or constructive knowledge by the municipal governing body that the practices have become customary among its employees." Spell, 824 F.2d at 1387. A plaintiff can prove actual knowledge by showing recorded reports to or discussions by a municipal government body or constructive knowledge by showing that the practices have been so widespread or flagrant that officials should have known about them. Id.
In the instant case, Plaintiff fails to show a custom of widespread use of excessive force on the part of County officers. Other than general allegations of past wrongdoings on the part of Giscombe and Bowman, and of County officers' reputation for violence, Plaintiff fails anywhere to point to one other specific instance where any County officers, including the individual Defendants, used excessive force or engaged in any other constitutional violation. Even drawing all reasonable inferences in Plaintiff's favor, he fails to provide sufficient proof to create a genuine issue of material fact that a widespread custom of excessive force exists and/or caused his injuries. See Carter v. Morris, 164 F.3d 215, 220 (4th Cir.1999) ("meager history of isolated incidents [fails to prove] the widespread and permanent practice necessary to establish municipal custom") (citations and internal quotation marks omitted); Spell, 824 F.2d at 1391 (proof of a single constitutional violation by police officers fails to support an inference that the violation resulted from either a "municipal policy of deficient training" or "a condoned custom of comparable practices") (citing Tuttle, 471 U.S. 808, 105 S.Ct. 2427; Wellington v. Daniels, 717 F.2d 932, 936 (4th Cir.1983)); see also Groman v. Township of Manalapan, 47 F.3d 628, 637 (3d Cir. 1995) (vague assertions that police department failed to investigate past wrongdoings by its police officers and allegations concerning the plaintiff's own alleged constitutional violation were insufficient to establish a policy or custom of negligent supervision under § 1983). Because Plaintiff presents no evidence that a custom of excessive force is widespread, he also fails to show that Farrell and others in County government knew or should have known about any such propensity for excessive force so as to impute liability to the County.
*594 Plaintiff also argues that the County has not put forth evidence to rebut his assertion that his violations were caused by a County custom, policy or practice, and that the County failed to respond to interrogatories and Requests for Productions of Documents, which he apparently asserts were necessary for him to prove his case. Plaintiff misunderstands his burden. The County was not required to produce evidence to negate Plaintiff's claims. Celotex, 477 U.S. at 323, 106 S.Ct. 2548 (explaining that Rule 56 does not require the moving party to "support its motion with affidavits or other similar materials negating the opposing party's claim"). Moreover, a principal purpose of summary judgment "is to dispose of factually unsupported claims," and where, as here, the nonmoving party bears the burden of proof at trial, he or she must show that a genuine issue of material fact exists in order to proceed to trial. Id. As already explained, Plaintiff fails to meet this burden. Further, if, as Plaintiff contends, the County failed to respond to his discovery requests, Plaintiff could have, but did not, file with this court a motion to compel discovery. Instead, he allowed the discovery period to close without seeking assistance from this court. Plaintiff cannot now be heard to complain about any alleged failure on the County's part to respond to his discovery requests, and the County's motion for summary judgment is granted as to count I.[3]
B. Tort Claims against the County
Defendants assert that the County is entitled to summary judgment with respect to Plaintiff's common law tort claims because as a municipality, it is immune from suit based on the tortious acts of its employees. Plaintiff appears to agree and withdraws his claims of battery (count II) and negligent hiring, retention, and supervision (count IV) against the County. Defendants contend that summary judgment in favor of the County is also proper as to his claim of intentional infliction of emotional distress (count III).
A state's right to governmental immunity is "deeply ingrained in Maryland law" and may not be waived in the absence of express or implied statutory authorization. Nam v. Montgomery County, 127 Md.App. 172, 182, 732 A.2d 356, 362 (1999); see also Khawaja v. Mayor and City Council, City of Rockville, 89 Md.App. 314, 325, 598 A.2d 489, 494 (1991) (explaining that Local Government Tort Claims Act ("LGTCA") Md.Code Ann., Cts. & Jud. Proc. § 5-401 et seq., which in certain instances, imposes liability on local governments, does not operate as a waiver of governmental immunity). A municipality, such as the County, is also entitled to governmental immunity. Nam, 127 Md. App. at 183, 732 A.2d at 362. ("When the state gives a city or county part of its police power to exercise, the city or county to that extent is the state."). Specifically, municipalities are generally immune from common law tort suits when engaged in governmental, as opposed to proprietary, acts. Id.; see also Ashton v. Brown, 339 Md. 70, 101, 660 A.2d 447, 462-63 (1995) (citing Clea v. City of Baltimore, 312 Md. *595 662, 667, 541 A.2d 1303, 1305 (1988)). "The operation of a police force is a governmental function." Hector v. Weglein, 558 F.Supp. 194, 206 (1982) (citations omitted). Thus, the County is immune as to common law tort claims asserted against it based on torts committed by its police officers. See Williams v. Prince George's County, 112 Md.App. 526, 532, 554, 685 A.2d 884, 887, 898 (1996) (holding that the County was shielded by governmental immunity when tort claims were asserted against it in its individual capacity for torts allegedly committed by County officers).
Plaintiff agrees that summary judgment is proper as to his claims against the County for battery and negligent hiring, retention, and supervision. He fails to argue that judgment is not also proper as to his common law tort claim of intentional infliction of emotional distress (count III), and summary judgment is thus granted in favor of the County with respect to that claim as well.
C. Claims against Officer Farrell
Plaintiff sues Police Chief Farrell in his official capacity. Defendants argue that Plaintiff's official capacity suit is really a suit against the County, and that because judgment is appropriate as to the government, it is also proper as to Farrell. Defendants also contend that Plaintiff's complaint does not assert constitutional claims against Farrell but only state common law claims.[4] Plaintiff argues, however, that "[t]he Complaint establishes Claims against John Farrell, ... in his official capacity under Title 42 ... Section 1983 (Counts II, III, & IV)." Assuming Plaintiff does assert federal constitutional claims against Farrell, they still fail.
To support his claim, Plaintiff alleges that Farrell: (1) knew or should have known of the Defendant officers' unconstitutional actions but gave them authority to make arrests and fulfill their duties as officers; (2) acquiesced in and promoted the officers' actions; and (3) failed to terminate them despite knowledge of their violent propensities. If, as in this case, the government entity has received an opportunity to respond to a suit filed against one of its agents in his or her official capacity, the suit is in all respects, other than name, a suit against the entity. Kentucky v. Graham, 473 U.S. 159, 166, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985); Monell, 436 U.S. at 690 n. 55, 98 S.Ct. 2018 (explaining that an official-capacity suit is generally another way of pleading a cause of action against the entity of which the officer is an agent). While in a personal action suit, the plaintiff need only show that the official, acting under color of state law, violated his or her federal right, in an official capacity suit, the plaintiff must show the government entity itself was the "moving force" behind the violation. Graham, 473 U.S. at 166, 105 S.Ct. 3099 (citations omitted). Thus, in an official-capacity suit, a plaintiff must show that the entity's policy or custom played a role in the violation of federal law. Id. As already explained, Plaintiff attempts to prove his case by showing that the individual officers had a propensity for using excessive force, of which the County, through Farrell and others, knew. However, he presents no evidence of the existence of a widespread *596 use of excessive force on the part of the individual Defendants or other County officers of which Farrell knew or should have known. Because Plaintiff fails to show his injuries resulted from a County policy or custom, summary judgment is proper as to Farrell in his official capacity.
D. Intentional Infliction of Emotional Distress
The individual Defendants contend as well that summary judgment is appropriate as to Plaintiff's intentional infliction of emotional distress claim because he fails to show that he suffered emotional distress as a result of Defendants' actions or that any emotional distress he did suffer was severe, as the tort requires. In response, Plaintiff alleges that he suffered "severe emotional distress, mental anguish, anger and anxiety." Paper no. 14 at 8. In his opposition memorandum, Plaintiff also contends that he wears visible scars from the incident with the individual officers and now fears Prince George's County Police Officers.
To prove a claim of intentional infliction of emotional distress, Plaintiff must show: (1) Defendants' conduct was intentional or reckless; (2) the conduct was extreme and outrageous; (2) a causal connection existed between the conduct and the emotional distress; and (4) the emotional distress was severe (the "severity" prong). Caldor v. Bowden, 330 Md. 632, 641-42, 625 A.2d 959, 963 (1993) (citing Harris v. Jones, 281 Md. 560, 566, 380 A.2d 611, 614 (1977)). Each element of the tort must be established by adequate proof. Caldor, 330 Md. at 642, 625 A.2d at 963. To satisfy the severity prong, a plaintiff must show "he suffered a severely disabling emotional response to the defendants' conduct." Harris, 281 Md. at 570, 380 A.2d at 616; see also Rich v. United States of America, ___ F.Supp.2d ___, ___, No. 00-2712, 2001 WL 802961 *8 (D.Md.2001) (plaintiffs' claim failed as they provided only an unsubstantiated allegation that they suffered "severe emotional distress, indignity, trauma, and pain and anguish"); Caldor, 330 Md. at 643-45, 625 A.2d at 964-65 (finding that Plaintiff failed to establish the severity prong after showing one visit to a psychologist, and offering his own testimony regarding weight loss and feeling upset, embarrassed, confused and "bad about himself" as a result of the defendant's conduct). Plaintiff fails to offer any proof that he suffered a disabling emotional response as a result of Defendants' conduct. Thus, he has not established an essential element of the tort, and his claim fails.
IV. Conclusion
For the foregoing reasons, Defendants' motion for summary judgment is granted as to the County and Police Chief Farrell in his official capacity with respect to all claims. Summary judgment is also granted with respect to Plaintiff's claims of intentional infliction of emotional distress. Remaining for trial are § 1983 (Fourth Amendment) and state tort battery claims against Bowman and Giscombe.
NOTES
[1] While Defendants label their motion one for summary judgment, it is actually a motion for partial summary judgment as they do not move for judgment on all counts with respect to all Defendants.
[2] Separate lawsuits were filed by Plaintiff's friends, Marc Williams, DKC 2000-184, and William Roberts, DKC 2000-186.
[3] Defendants contend that to the extent Plaintiff's federal claims survive, they are Fourth Amendment excessive force claims. It is clear from Plaintiff's complaint and opposition memorandum that he is asserting claims of excessive force on the part of the individual officers. Thus, his claims are properly analyzed under the Fourth Amendment. See Graham v. Connor, 490 U.S. 386, 388, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989) (holding that claims of excessive force should be analyzed under the Fourth Amendment's objective reasonableness standard). Consequently, Defendants' motion for summary judgment is granted as to Plaintiff's Fifth and Sixth Amendment claims.
[4] If Defendants are correct that Plaintiff essentially alleges only state common law claims against Farrell in his official capacity, Farrell is shielded by the County's governmental immunity. See Hector, 558 F.Supp. at 206 (explaining that the Baltimore City Council and former police commissioner, sued in their official capacities, would be entitled to the same immunity as the municipality with respect to common law claims asserted against them).
| {
"pile_set_name": "FreeLaw"
} |
613 F.2d 314
Griffinv.Harris
No. 78-1758
United States Court of Appeals, Fifth Circuit
2/25/80
N.D.Ga., 608 F.2d 1371
| {
"pile_set_name": "FreeLaw"
} |
849 N.E.2d 764 (2006)
R.T.B.H., INC., d/b/a McAndrews Windows & Glass Company, Appellant,
v.
SIMON PROPERTY GROUP, Appellee.
No. 41A01-0512-CV-551.
Court of Appeals of Indiana.
June 27, 2006.
*765 Christopher S. Roberge, Elizabeth A. Roberge, Eliza K. Bradley, Roberge & Roberge, Indianapolis, IN, Attorneys for Appellant.
Donald D. Levenhagen, Cohen & Malad, LLP, Indianapolis, IN, Attorney for Appellee.
OPINION
BARNES, Judge.
Case Summary
R.T.B.H., Inc., d/b/a McAndrews Windows & Glass Company ("McAndrews"), appeals the trial court's entry of partial summary judgment and final judgment in favor of Simon Property Group, L.P. ("Simon"). We affirm.
Issue
The issue before us is whether the trial court properly concluded that McAndrews did not establish the existence of a valid mechanic's lien on Simon's interest in property it owns.
Facts
On February 20, 2003, Dick's Sporting Goods, Inc. ("Dick's"), entered into a lease with Simon for property Simon owned at the Greenwood Park Mall. The lease was for the express purpose of Dick's demolishing an MCL Cafeteria and Service Merchandise store that were on the property and for constructing a new Dick's store. The lease was for an initial term of twenty years, with options to extend it for a total of fifty years. In order to secure the consent of Simon's mortgage lender for the lease, Simon agreed to complete construction of the new building if Dick's did not do so.
The lease required Simon to pay Dick's for part of the costs associated with demolishing the MCL Cafeteria and constructing a courtyard. Otherwise, Dick's bore the cost of the construction. Simon reviewed and approved the plans for the Dick's store prior to entering into the lease but indicated on the plans, "Landlord's review of contract documents is for design intent and criteria compliance only." App. p. 176. The building was to be surrendered to Simon when the lease ended.
Dick's retained S.C. Nestel, Inc. ("Nestel"), as general contractor for the construction project. Nestel, in turn, subcontracted window and glass work to McAndrews. McAndrews' representative interacted with representatives from Nestel and Dick's during construction of the store. There is no evidence that representatives from Simon ever interacted with any representative of McAndrews during the construction.
The new Dick's store was completed without Simon's intervention. However, Nestel refused to pay McAndrews for its work on the store. Nestel, in fact, filed a complaint for damages against McAndrews. McAndrews, in turn, filed a counterclaim against Nestel and against Simon, alleging that there was a valid mechanic's lien on the property and that it should be foreclosed. Simon moved for partial summary judgment, alleging that there was no valid mechanic's lien on its fee interest in the property. On August 15, 2005, the trial court entered partial summary judgment in favor of Simon, concluding that there was no valid mechanic's lien as to Simon, and directed the entry of final judgment in favor of Simon. On October 12, 2005, the trial court denied McAndrews' motion to correct error. McAndrews now appeals.
Analysis
Summary judgment is appropriate only if the evidence shows there is no genuine *766 issue of material fact and the moving party is entitled to a judgment as a matter of law. Ind. Trial Rule 56(C); Beta Steel v. Rust, 830 N.E.2d 62, 67 (Ind.Ct.App.2005). We must construe all facts and reasonable inferences drawn from those facts in favor of the nonmoving party. Beta Steel, 830 N.E.2d at 67. "The review of a summary judgment motion is limited to those materials designated to the trial court and we must carefully review decisions on summary judgment motions to ensure that parties are not improperly denied their day in court." Id.
"A contractor may attach a mechanic's lien to real estate in order to recover his wages and costs." Gill v. Pollert, 810 N.E.2d 1050, 1058 (citing Ind. Code § 32-28-3-1). "Mechanic's liens were unknown at common law and are purely creatures of statute." Cho v. Purdue Research Foundation, 803 N.E.2d 1161, 1167 (Ind.Ct.App.2004). Courts generally have followed a rule of strict construction in terms of adherence to the requirements for creating such a lien, and a rule of liberal application of the remedial aspects of the mechanic's lien statutes. Id. at 1168.
In order for a mechanic's lien to attach to real estate, it is imperative that improvements to the property be made under the authority and direction of the landowner and something more than inactive or passive consent is required. Gill, 810 N.E.2d at 1058 (quoting Woods v. Deckelbaum, 244 Ind. 260, 264, 191 N.E.2d 101, 102 (1963) (quoting Courtney v. Luce, 101 Ind.App. 622, 626, 200 N.E. 501, 503 (1936))). A lien claimant's burden to prove active consent to improvements is especially important when they are requested by someone other than the landowner. Stern & Son, Inc. v. Gary Joint Venture, 530 N.E.2d 306, 308 (Ind.Ct.App.1988). Without the landowner's active consent, a lien claimant can only maintain a lien to the extent of his customer's interest in the land. Id. A person about to improve real estate must take notice of the extent of his customer's rights in the land and of the rights of those in possession. Id.
We find this case to be practically indistinguishable from Stern & Son, which our supreme court cited with approval in Gill. Gill, 810 N.E.2d at 1059. There, Gary Joint Venture ("GJV"), a mall owner, leased property to a group of individuals. The express purpose of the lease was to turn the property into a pizza restaurant. A corporation formed by some of the tenants undertook to build the restaurant, and it contracted with Stern & Son for that purpose. GJV approved the construction plans, provided Stern & Son with a set of rules for contractors performing construction work in the mall, and representatives of GJV regularly visited the work site to ensure that the mall's standards were adhered to. The restaurant eventually was completed, but Stern & Son was not paid for its work. It sought to enforce a mechanic's lien against the property. The trial court granted GJV's motion for summary judgment, concluding that no mechanic's lien existed as to GJV's interest in the property.
On appeal, we affirmed the trial court on the basis that GJV had not actively consented to the construction.[1]Stern & Son, 530 N.E.2d at 308-09. Stern & Son had argued that three facts demonstrated that GJV had actively consented to the construction: *767 first, the lease contemplated that the restaurant would be built; second, GJV approved the construction plans; and third, GJV representatives supervised the construction. Id. at 308. We rejected all three contentions.
We first cited the existence of longstanding case law holding that "a lease calling for improvements, even very detailed improvements, will not prove the sort of active consent needed to maintain a mechanic's lien." Id. (citing Gardner v. Sullivan Mfg. Co., 77 Ind.App. 60, 133 N.E. 31 (1921)). Next, we noted that GJV's approval of the plans was perfunctory and technical, as was the onsite construction supervision. Id. at 309. We stated, "while these facts certainly establish that GJV was aware of the construction, this awareness also does not establish the sort of active consent needed to maintain a mechanic's lien." Id.
We also made the following observation:
The exact nature and content of the owner's active consent in this context will vary from case to case; however, case law makes clear that the focus is not only on the degree of the owner's active participation in the decisions and the actual construction. Instead, the focus is also on how closely the improvements in question resemble a directly bargained-for benefit. In the present case, GJV did not receive a direct benefit from the improvements Stern constructed. The benefits GJV received were indirect in that they enabled the Tenants to produce income with which they could make lease payments.
Id. (citiation omitted).
Here, much like in Stern & Son, the fact that the lease between Simon and Dick's called for the construction of a new building does not mean that Simon actively consented to improvements provided by McAndrews. The only designated evidence in the record is that Simon had no interaction with McAndrews during the course of construction, nor for that matter is there any evidence that Simon had any significant interaction with the general contractor, Nestel. It also appears from the record that Simon's approval of the design plan for the Dick's store was largely technical and perfunctory, as was the case in Stern & Son, as evidenced by the stamp placed on the design by Simon, "Landlord's review of contract documents is for design intent and criteria compliance only." App. p. 176. Additionally, evidence that Simon was aware of the construction of the Dick's store, and even McAndrews' involvement in it, is not enough to establish "the sort of active consent needed to maintain a mechanic's lien." Stern & Son, 530 N.E.2d at 309.
Also as in Stern & Son, Simon did not receive a direct benefit from the construction of the Dick's store. The benefits it received from the construction of the store were indirect, including some assurance that Dick's would be able to pay the rent required by the lease by its construction and operation of the store, and whatever tangential value the new store would have to Greenwood Park Mall as a whole. The fact that the building would revert to Simon at the conclusion of the lease, which means anywhere from twenty to fifty years in the future, cannot be fairly construed as a primary bargained-for purpose of the lease or a direct benefit to Simon. In any event, it is difficult to conceive that Dick's would physically move the 75,000-square foot store or intentionally destroy it before the conclusion of the lease; it is natural to expect that Simon would take possession of the structure at that time.
One aspect of this case that was not present in Stern & Son is that Simon entered into an agreement with its mortgage lender to complete construction of the store if Dick's did not do so. We *768 agree with Simon that this contingency agreement, which contingency never came to pass, is irrelevant to the question of whether Simon actively consented to the improvements provided by McAndrews. The actual facts of this case are that Simon did not participate actively in the construction of the Dick's store and made no payments for any construction to either Nestel or McAndrews.[2]
McAndrews contends that this case is controlled by our opinion in American Islam Society v. Bob Ulrich Decorating, 126 Ind.App. 266, 132 N.E.2d 620 (1956). In that case, the American Islam Society ("the Society") owned a hotel and leased it to two individuals. The lease was expressly conditioned upon the lessees making repairs and improvements that were explicitly set forth in the lease. The lessees hired several contractors to perform the required improvements but failed to pay them for their work. Shortly after the work was completed, the lessees defaulted on the lease and possession of the hotel reverted to the Society. The trial court found that a mechanic's lien existed against the property and ordered its foreclosure to pay the amounts owed to the contractors.
We affirmed, concluding there was sufficient evidence the Society had actively consented to the improvements. American Islam Society, 126 Ind.App. at 271, 132 N.E.2d at 622. Although there are some superficial similarities between American Islam Society and the one before us now, there is a key difference that we noted in the following paragraph:
It seems to us on the record herein that the appellant leased its building to tenants of doubtful financial responsibility and that the lease required them to make improvements amounting to several thousand dollars. The lease was surrendered shortly thereafter and the appellants have obtained the benefit of the improvements. The facts illustrate the justice of the rule applied herein. To hold otherwise would permit appellant to unjustly enrich itself at the expense of appellees.
Id. at 272, 132 N.E.2d at 623. There is no indication here that the entity to whom Simon leased the property, Dick's, is of "doubtful financial responsibility." The lease is still in effect and it is Dick's, not Simon, who currently is enjoying the direct benefit of the construction performed by McAndrews. Simon has not "unjustly enriched" itself at McAndrews' expense. We conclude, as we did in Stern & Son, that the present case is distinguishable from American Islam Society. See Stern & Son, 530 N.E.2d at 309. The trial court correctly concluded that, as a matter of law, McAndrews failed to establish the existence of a mechanic's lien against Simon's ownership interest in the property.
Conclusion
The trial court properly granted partial summary judgment and final judgment in favor of Simon. We affirm.
Affirmed.
FRIEDLANDER, J., and MATHIAS, J., concur.
NOTES
[1] The trial court had also based its ruling on the fact that the corporation formed by the tenants was not a party to the lease and had no legal interest in the property that could be encumbered. We did not rely on or discuss in any detail this basis for the trial court's ruling in our opinion.
[2] A landowner's direct payment to a contractor providing improvements frequently has been cited as a factor supporting the establishment of a mechanic's lien against the landowner's interest in the property. See Mann v. Schnarr, 228 Ind. 654, 669-70, 95 N.E.2d 138, 144 (1950); Better Homes Co. v. Hildebrand Hardware Co., 202 Ind. 6, 11, 171 N.E. 321, 322-23 (1930); O'Hara v. Architects Hartung & Assoc., 163 Ind.App. 661, 666, 326 N.E.2d 283, 287 (1975).
| {
"pile_set_name": "FreeLaw"
} |
242 F.2d 549
NEW AMSTERDAM CASUALTY COMPANY, Appellant,v.Elizabeth W. MURRAY, Appellee.
No. 12917.
United States Court of Appeals Sixth Circuit.
March 26, 1957.
Gladney Harville, Lexington, Ky. (Stoll, Keenon & Park, Lexington, Ky., Boyd F. Taylor, Jr., and William A. Hamm, London, Ky., Kiser, Vicars & Kiser, Wise, Va., on the brief), for appellant.
James S. Greene, Jr., Harlan, Ky. (James Sampson, Harlan, Ky., on the brief), for appellee.
Before SIMONS, Chief Judge, and McALLISTER and STEWART, Circuit Judges.
PER CURIAM.
1
Appellee, a woman passenger in a motor vehicle, sustained personal injuries as a result of a collision with another motor vehicle, in the State of Kentucky. The insurer of the latter vehicle brought suit in Virginia in a court of competent jurisdiction for cancellation of a policy of insurance on the ground that the insured had procured its issuance by fraudulent representations. The policy of insurance was written in Virginia. The insurance company was authorized to do business in both Virginia and Kentucky.
2
Service of summons was had upon the insured, and, on his failure to appear, a default judgment was entered in favor of the insurance company, cancelling the policy as of a date prior to the accident. Appellee, who was the passenger injured in the collision, was not a party to the suit for cancellation and had no notice or knowledge of the suit. Later, the injured passenger brought suit in Kentucky against the son of the insured, who was covered by the insurance, and who was driving the motor vehicle with the permission of the insured at the time of the accident; and upon trial, was awarded a judgment in the amount of $25,000. She later brought suit against the insurance company, asking a judgment in the above amount, together with interest and costs expended in the personal injury suit, and the district court, upon verdict of a jury, entered a judgment in her favor against the insurance company.
3
There is no question but that the insurance company would be liable to appellee, if no questions of fraudulent procurement of the policy, or invalid service of summons were in the case.
4
However, appellant insurance company submits that the judgment in the State of Virginia, cancelling the policy for having been procured by fraudulent representations, is binding on the appellee, regardless of the fact that she was not a party to the suit, and had no notice thereof.
5
The district court held that, as to the insurance company, appellee's rights arose upon the happening of the accident, and could not thereafter be abridged by the judgment to which she was not a party. See Pennsylvania Casualty Co. v. Phoenix, 10 Cir., 139 F.2d 823; Spann v. Commercial Standard Ins. Co., 8 Cir., 82 F.2d 593.
6
The policy of insurance was for indemnity against liability; and the insurer's obligations became fixed when liability attached to the insured. Bailey v. United States Fidelity & Guaranty Co., 185 S.C. 169, 193 S.E. 638; Hocken v. Allstate Ins. Co., 235 Mo.App. 991, 147 S.W.2d 182.
7
On the trial of the instant case, the district court submitted to the jury the defense of the insurance company that the policy was void at the time of the accident, because of fraudulent representations made by the insured; but the jury found against the insurance company on this issue and awarded judgment on the amount that appellee had secured on her prior action against the insured.
8
With respect to the remaining issue, as to whether there was valid service against the insurance company, it appears the service of process was obtained by serving the Commissioner of Insurance of the State of Kentucky, pursuant to the statutory provisions of Sec. 304.094 of the Kentucky Revised Statutes, which provides as follows:
9
'Each authorized foreign or alien insurer and each domestic reciprocal or Lloyd's insurer shall appoint the commissioner as its attorney to receive service of all legal process issued against it in this state upon causes of action arising within this state. Service of legal process against such foreign or alien insurer can be had only by service upon the commissioner.'
10
Appellant insurance company was authorized to do business in Kentucky. Appellee's cause of action against the insurance company arose within the State of Kentucky, and, there, she sued and was awarded judgment. The foregoing statutory provisions applicable to service of process upon the Commissioner of Insurance have never yet been construed by the Kentucky Court of Appeals. The trial judge, however, an experienced State court Judge in Kentucky for many years before he became a Federal District Judge, considered that the plain language of the statute had been followed in making service of process in the instant case, and that, accordingly, service upon the Commissioner was valid service upon the insurer; and in such determination, he was not in error.
11
In accordance with the foregoing, the judgment of the district court is affirmed.
| {
"pile_set_name": "FreeLaw"
} |
16 F.Supp.2d 259 (1997)
JIM HENSON PRODUCTIONS, INC. Jane Henson, and Albert Gottesman as Executor of the Estate of Jim Henson, Plaintiff,
v.
JOHN T. BRADY & ASSOCIATES, INC., and Coffee Associates, Inc., Defendants.
No. 92 Civ. 5115(LAP).
United States District Court, S.D. New York.
October 9, 1997.
*260 Carol F. Simkin, Lisa Pearson, James D. Silberstein, Rose Auslander, Fross Zelnick Lehrman & Zissu, P.C., New York City, for plaintiffs.
Peter D. Raymond, Jeffrey M. Tamarin, Hara K. Jacobs, Hall Dickler Kent Friedman & Wood LLP, New York City, for defendants.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
PRESKA, District Judge.
This copyright action arises out of a disputed copyright assignment and the scope of the rights transferred pursuant to the assignment *261 from plaintiffs (the "Hensons") to the defendants (the "Wilkins Company"). In a previous Memorandum and Order, I granted in part and denied in part the parties' cross-motions for summary judgment on plaintiffs' claims for trademark infringement, copyright infringement, infringement of right to publicity, unfair competition and breach of contract, disposing of several of these claims. Jim Henson Productions, Inc. v. John T. Brady & Assocs., Inc., 867 F.Supp. 175 (S.D.N.Y.1994) ("JHP, Inc."). The copyright claim was tried to the bench over seven days, and at the conclusion of the trial I reserved decision. Subsequent to the trial, the parties submitted proposed findings of fact and posttrial memoranda on the issue of current ownership to the copyright rights to certain muppets created by plaintiffs. Pursuant to Rule 52(a) of the Federal Rules of Civil procedure, I now issue the following findings of fact and conclusions of law in support of my decision in favor of plaintiffs.
FINDINGS OF FACT
1. This action arises out of a dispute over the ownership of the copyrights in two puppet characters named Wilkins and Wontkins created and performed by or at the direction of Jim Henson for certain commercials for the John H. Wilkins Company as more fully described below.[1]
Facts Concerning the Hensons
2. Jim Henson was a world renowned puppeteer who, through his talents as a performer, *262 designer and writer, and his innovative use of television and previously the motion picture medium, created "the Muppets", a now-famous family of original puppets including Kermit the Frog, Miss Piggy, and Big Bird. Mr. Henson (and his company, Jim Henson Productions, Inc.) have won numerous awards including Emmy and Grammy awards for excellence in the art of puppetry. (Pl.Exs.4, 16-22, 86-87). Mr. Henson passed away suddenly in 1990 at the age of 53.
3. Jane Nebel Henson is a talented puppeteer who was involved in much of Mr. Henson's early work and routinely attended business meetings and discussed with Mr. Henson the business aspects of their work. (Deposition of Jane Henson ("Jane Henson") sworn to on Jan. 27, and June 7, 1993, 6-14, 17, 21, 23-24, 201-03; see, e.g., Pl.Ex. 45 (¶ 11); Pl.Ex. 12).
4. An essential aspect of Mr. Henson's art form was his personal performance of his puppets. He was an entertainer who performed his own puppets and was not engaged in building or creating puppets for others. As early as 1965, Mr. Henson was quoted as saying "when you do puppets, you can create the whole show yourself, write it, perform it, direct it, everything. It's a whole thing, a mood. It's a way of saying something." (Pl. Exs. 13 (H02060), 33(c), 34, 38, 86-87; Jane Henson 61-62; Deposition of Jerry Juhl sworn to on Apr. 26, 1993 ("Juhl") 30; Trial Tr.[2] 37-38, 40-41, 54-55, Schube).
5. From the outset of his career, all performances of Muppet puppets have been by Mr. Henson or other Muppet puppeteers trained by Mr. Henson and/or Jim Henson Productions, Inc. Mr. Henson did not permit others to perform his puppets, and Jim Henson Productions, Inc. has consistently enforced that policy. (Id.) ("[W]e wouldn't consider divorcing the puppet from the performance. They're too closely connected.")).
6. From as early as 1954, Mr. Henson had a practice of retaining the copyrights in all Muppet puppets, and to date all such copyrights have been retained by him and/or his company, Jim Henson Productions, Inc. (Deposition of Irwin Russell sworn to on May 24, 1995 ("Russell") 23-26, 43-44, Pretrial Ord. § E ¶ 22; Trial Tr. 45, Schube ("[A]ny muppets that are in those movies or even created for those movies will be and will always be owned by us. That's been our practice throughout the history of the Company and it remains our practice today")).
7. Notwithstanding Mr. Henson's practice of retaining copyright ownership in the Muppet puppets, in the 1950s and 1960s he did not routinely register these copyrights in the Copyright Office. Although a small number of Muppet puppets created in the 1950s and 1960s were registered with the Copyright Office, many Muppets created as early as the mid-50s, including puppets appearing on his Sam and Friends television series, were not registered. (Jane Henson 23-24, Pretrial Ord. § E ¶ 22, Pl.Exs. 4, 12, 89).
Facts Surrounding Recognition of the Hensons' Work Prior to Their Relationship with the John H. Wilkins Co.
8. While students at the University of Maryland in the 1950s, Jim and Jane Henson began work on what would later become a puppet-based entertainment empire. (Pl.Ex. 13 (H02044-45, H02048, etc.); Pl.Ex. 45 (¶¶ 3, 11); JHP, Inc., 867 F.Supp. at 177).
9. Commencing sometime about 1954, they adopted the term "Muppet" and "Muppets" as a service mark and as a trademark to identify the puppet characters they created and performed. (Pl.Ex. 45 (¶¶ 4, 5, 49); JHP, Inc., 867 F.Supp. at 177). Today, "Muppets" is a famous mark that continues to identify plaintiffs' particular brand of puppetry the soft, expressive puppet performed and created by plaintiffs. (Trial Tr. 38, Schube; Pl.Exs. 4, 87-88).
10. The Hensons started gaining notoriety in connection with their performances of Muppet puppets on television in or around the early-to-mid 1950s. (Pl.Ex. 13 (H02044-45, H02048-49, H02052-56, H02060(a)-61, H02068-71), 85).
*263 11. In 1955 or 1956, articles in the Washington Post and Times Herald stated that "[b]ig things are ... in the works for Jim Henson and Jane Nebel" and that "NBC producers were impressed with muppets Sam, Kermit, Algernon J. Kumquat, Yorick, Hank and Frank, and Mush Melon." (Pl.Ex. 13; (H02044-45; H02056)). In 1957, reviewers noted that Jim Henson and his Muppets "have been getting considerable attention recently from the networks...." (Pl.Ex. 13 (H02048)).
12. During 1956 and 1957, the Hensons made guest appearances including performances of the Muppet puppets on the Will Rodgers Show, the Steve Allen Show, on Arthur Godfrey Time, and on the Jack Paar Show. (Pl.Ex. 13 (H02050-51, H02055, H02061, H02068-71)).
13. The Hensons subsequently made guest appearances on the Tonight Show and the Jack Paar Show and also appeared on other national television programs, including appearing as guest stars on the Ed Sullivan Show, and as regulars on the Jimmy Dean Show. (See e.g. Pl.Ex. 45 (¶¶ 41 and 42); Pl.Ex. 49 (¶ 20)).
14. Commencing in approximately May, 1955 (before the John H. Wilkins commercials were created) and continuing until approximately December 1961, Jim and Jane Henson, and later their company, Muppets, Inc., regularly performed various Muppet puppets (but not Wilkins and Wontkins) on a local television show entitled "Sam and Friends" which was broadcast in the Washington, D.C. area and which aired twice nightly on WRC-TV, the NBC affiliate in Washington, D.C., once just after the Huntley Brinkley News Hour, and once just prior to the Tonight Show. (See e.g. Pl.Ex. 45 (¶¶ 41 and 42); Pl.Ex. 49 (¶ 20); Pl.Ex. 13; Def.Ex. 46; Jane Henson 10-11, 24, 201-03; Deposition of Regis Cupples sworn to on Apr. 23, 1993 ("Cupples") 13; Juhl 21-22, 30; Deposition of Leslie Asch sworn to on Apr. 30, 1993 ("Asch") 32).
15. Prior to 1957, somewhere between twelve and twenty Muppet puppets had been created. (Jane Henson 23-24).
16. In 1958, "Sam and Friends" was "acclaimed by Washingtonians as the most popular local television attraction" and in February 1958 won an Emmy award for best local entertainment. (Pl .Ex. 13 (H02050-51); Pl. Exs. 45 (¶ 42), 79A and 80A (¶ 1-5)).
17. Mr. Martin Stone, an expert called by defendants, testified to the effect of television appearances on one's reputation, stating that a performer "achieved almost immediately, if not in a few months, a presence and if you stay on long enough, you would be extremely successful." (Trial Tr. 309, Stone).
18. Jim Henson and the "Muppet" puppets were already well known prior to the commencement of their relationship with the John H. Wilkins Company for their "Sam and Friends" show, among other things. (See also (¶¶ 8-17), supra, and J. Henson 23, 201-03).
19. Jim and Jane Henson were earning substantial sums from their performances on Sam and Friends in the mid-to-late 1950s, appearing twice daily, five times a week. (See Pl.Ex. 88 (¶ 2(b)) ($370 rate for five performances of 15 minutes or less) × 2 (for 10 performances a week) × 2 (Jim and Jane) × 52 (weeks per year) = $76,960 annual income; § 2(c) = $740 (assuming that the two performances per day were identical, the two performances would be compensated at one and three-quarter times the single rate, yielding $67,340 combined annual income)).
20. The Hensons transferred all of their rights in Wilkins and Wontkins to Muppets, Inc. upon its incorporation in Washington D.C. on November 20, 1958. (Jane Henson 73-75, 182; Pl.Ex. 2).
Facts Concerning the John H. Wilkins Co.
21. The John H. Wilkins Company was formed primarily for the purpose of marketing food supplies and related products. (Pl. Ex.23).
22. During the 1950s and 1960s, the John H. Wilkins Company's business consisted primarily of manufacturing and selling its own coffee products. (Hefler 6-7).
23. At all relevant times prior to 1974, the John H. Wilkins Company sold its coffee and tea products substantially exclusively in *264 two markets: (a) retail stores in the greater Washington, D.C. area (consisting of Baltimore, Washington, Richmond, and Norfolk) and (b) institutional buyers such as hotels and restaurants. By 1974, the John H. Wilkins Company had practically phased out the retail end of its business. (Pl.Ex. 49 (¶ 2); Hefler 6-7; Ashplant 12-13).
Relationship and Agreements Between the Hensons and the John H. Wilkins Co.
24. The relationship between the Hensons and the John H. Wilkins Company first developed sometime during the mid-1950s when John H. Wilkins, the founder of the John H. Wilkins Company, saw the Hensons' television show "Sam and Friends" on a local television station and asked Roger Hefler, his right hand-man, to contact them about the possibilities of using their talents for an advertising program to promote the John H. Wilkins Company's coffee product. (Hefler 8; Jane Henson 23; Pl.Ex. 42 (MO1329)).
25. Upon Mr. Wilkins' request, Mr. Hefler contacted the Hensons, and, thereafter, the parties had a number of meetings and discussions culminating in the first of many agreements. (Hefler 8-10, 22).
26. In or about 1957 or 1958, the John H. Wilkins Company introduced a regional advertising campaign to promote retail sales of its Wilkins brand coffee that consisted primarily of the television commercials written and then produced by Jim Henson in which Jim Henson and other puppeteers under his direction performed the Wilkins and Wontkins puppet characters. (Hereinafter, the television commercials produced by the Hensons or their company, Muppets, Inc., for the John H. Wilkins Company will be referred to as the "John H. Wilkins commercials.") (Hefler 10-15, Pl.Exs. 24A; 49 (¶ 9)).
27. Over the course of their relationship from around 1957 through the mid-to-late 1960s, the Hensons and their company, Muppets, Inc., and the John H. Wilkins Company had many written and oral agreements. (Hefler 9-10, 14, 18, 19, 53; Jane Henson 141-42, 182-86; see e.g., Pl.Exs. 24(A), (H), (J), (K), (L), (N), 25(D), 45 (¶¶ 80, 87-89, 91)).
28. The documentary records of the parties and their predecessors, however, are incomplete. (Pl.Ex. 45 (¶¶ 80, 88-89, 91); Hefler 15, 76-77, 94; Jane Henson 181-82; Furey 30-32, 86-95, and Pl.Ex. 59; Ver Standig 29, 43-44 and Pl.Ex. 58; Ashplant 5-6, 81-84 and Pl.Ex. 60; Hatch I 16, 39-40, 43, 112; Deposition of Daniel Abensohn sworn to on Nov. 12, 1992 and Apr. 27, 1993 ("D.Abensohn") 237-38, 243, 246, 411; Deposition of Helen Marmoll sworn to on May 17, 1993 ("Marmoll") 80-81; Deposition of Stanford Berman sworn to on May 21, 1993 ("S.Berman") 45-46, 65; Deposition of John T. Brady sworn to on July 24, 1992 ("Brady") 280-281; Winegar 24-25). Defendant Coffee Associates, Inc. did not produce the originals, signed or unsigned, or copies of any agreements between Jim Henson and Jane Henson or Muppets, Inc. and the John H. Wilkins Company or any of defendants' other alleged predecessors in interest. (Pl. Ex. 45 (¶¶ 80, 85(c)). Neither defendant produced any documents from its respective files that concern communications or the relationship between the Hensons and the John H. Wilkins Company. Other than certain documents produced by Helen Marmoll, plaintiffs produced all of the documents in the case concerning the relationship between the Hensons and the John H. Wilkins Company. (Pl.Ex. 46 (¶¶ 142-61, 163-65)).
29. Mr. Hefler was responsible at the John H. Wilkins Company for its relationship with the Hensons and Muppets, Inc. and handled most of the correspondence relating to them on behalf of the John H. Wilkins Company. (Hefler 10).
30. Of all the persons who have been deposed in this case, Roger Hefler and Jane Henson are the only persons with first-hand knowledge of the purpose of the agreements between the Hensons and/or Muppets Inc. and the John H. Wilkins Company. (Hefler 10-14, 43; Jane Henson 151-54, 162-71, 183-86, 192-95; D. Abensohn 245-49; Marmol 30, 41, 49, 59-60, 81; Winegar 24-25, 121; Ver Standig 21-30, 32-35, 60-61; Ashplant 99-100; Furey 14-31, 37-40; 63-64, 69, 73, 79-80; Deposition of Seymour Abensohn sworn to on Apr. 22, 1993 ("S.Abensohn") 39, 44, 70-72, 132-33, S. Berman 9-10, 87; Hatch II 36; Brady 223-30, 273, 279-80; Cupples 10-11, 27, 120-22; 144-45). Further, of all such *265 persons, including Mrs. Henson, only Mr. Hefler has first-hand knowledge of the terms of such agreement(s). (Hefler 10-11; Jane Henson 145-46, 151-52). Every other witness in the case who had any knowledge of dealings between the Hensons and the John H. Wilkins Company (including defendants' witnesses) identified Mr. Hefler as the individual who would know best the terms of the agreements between the parties. (Hefler 46; Furey 16-17; Jane Henson 139-140, 159, 168; Hatch I 114-15, 119; Hatch II 36; Ver Standig 61; Pl.Ex. 42 (M001325)). In their answers to plaintiffs' interrogatories defendants also identified Mr. Hefler as a person who would know the terms of the agreements. (Pl.Ex. 50 (¶¶ 3-4)).
31. However, in the course of defendants' investigation of their asserted rights with respect to Wilkins and Wontkins, neither defendants nor anyone acting under their supervision or authority or on their behalf contacted Roger Hefler and asked him: (a) what the terms were of any agreements between the John H. Wilkins Company and the Hensons and/or Muppets Inc., or (b) if the Hensons had transferred any copyright rights in Wilkins and Wontkins to the John H. Wilkins Company. (Pl.Ex. 46 (¶ 170)).
32. The purpose and intention of the Hensons and the John H. Wilkins Company with respect to all their agreements during their collaboration was as follows: (1) the Hensons would create television commercials in which they would perform certain "Muppets", here the Wilkins and Wontkins puppet characters; (2) the John H. Wilkins Company would have the exclusive rights to use the puppets in connection with its advertising campaign to promote its coffee product to the retail trade in its trading market the greater Washington area for the duration of the advertising campaign; and (3) the rights granted to the John H. Wilkins Company with respect to Wilkins and Wontkins were terminable at the conclusion of the advertising campaign. (Hefler 10-13, 20-36; Jane Henson 151-54, 162-71, 183-86, 192-93; Pl. Ex. 45 (¶¶ 20, 48)).
33. An integral part of the agreements between the John H. Wilkins Company and Mr. Henson was that only Mr. Henson or someone under his supervision would perform his Muppet puppets and that such performances would always be in the context of a commercial entirely created by him. Similarly, any ancillary uses of two- or three-dimensional depictions of the puppets would be part of the John H. Wilkins Company's advertising campaign, in its region, and would be subject to Mr. Henson's creative control and consent. In other words, irrespective of the question of copyright ownership, under the parties' agreement, (i) the John H. Wilkins Company only had the right to use the characters in its region to promote Wilkins Coffee; and (ii) the John H. Wilkins Company never had the right to use these puppets or characters separate and apart from Mr. Henson's creative services and control. (Id. and Pl.Exs. 33(c), 34, 38).
34. The initial agreement between the John H. Wilkins Company and the Hensons was memorialized in a letter dated November 14, 1957 from Jim Henson to M. Belmont Ver Standig, Inc., which at the time was the John H. Wilkins Company's advertising agency. In that letter, Mr. Henson stated "This includes creation of situations, characters, voices, sets and the exclusive film commercial rights to the Muppets while these films are being used on the air". (Pl.Ex.24(a); Hefler 22-24; Jane Henson 144-48).
35. By the time of the September 16, 1958 Assignment (discussed infra), the John H. Wilkins advertising campaign had already been running for approximately 10 months. Roughly 50 of the John H. Wilkins commercials had been created, and they were very popular. By that point, if not earlier, the John H. Wilkins Company was dependent upon Mr. Henson's talents to continue the campaign and could not replace him with anyone else. (Hefler 31-32; Pl.Exs. 5, 24(b) and (c); Pl.Ex. 13 (HOO749); see also Pl.Ex. 14A).
36. Jim Henson and/or Jane Henson and/or Muppets, Inc. did not provide puppets separately, but instead provided, in combination, all the creative services necessary to the entire filming of the John H. Wilkins commercials, including the storyboards, scripts, sets, special effects, costumes, art work, props (other than actual Wilkins Coffee products), *266 directorial services, production services, and performers. This was consistent with Mr. Henson's way of expressing his art form. (Jane Henson 133, 148; Pls.Ex. 3, 24A; Hefler 8, 10, 12-13, 22-24).
37. The Wilkins and Wontkins puppets had a strong physical resemblance to the then-existing "Muppet" puppets (compare Pl. Exs. 4, p. 37, 16 with Pl.Ex. 8) but were built after Jim Henson created the storyboards for the John H. Wilkins commercials. (Pl.Ex. 3, Jane Henson 21).
38. During the 1950s and 1960s, the John H. Wilkins commercials were broadcast in the greater Washington, D.C. area only. (Pl. Ex. 49 (¶ 10); Hefler 24, 29-31, 36).
39. As part of the John H. Wilkins Company's advertising campaign, beginning in or about late December 1958 and ending sometime in early 1959, for approximately three months, depictions of the Wilkins and Wontkins characters appeared in local Washington, D.C. newspaper advertisements promoting Wilkins brand coffee, and miniaturized rubber or vinyl figurine adaptations of the Wilkins and Wontkins puppets (called "premiums") were offered and distributed by the John H. Wilkins Company to its retail customers in the greater Washington, D.C. area. Also during this three-month period, an offer for the premiums, depicting them, was placed on the lid of the Wilkins Coffee cans. Although the premiums were not released until late December, 1958 (Pl.Ex.28(d)), their introduction was anticipated in late August, 1958 (Pl.Ex.27(c)), which coincides with the timing of the September 16, 1958 Assignment. (Pl.Ex. 45 (¶¶ 97, 98); Pl.Ex. 49 (¶¶ 12 and 13); Pl.Ex. 51 (¶ 34); Hefler 96-97). Other than the foregoing, no depictions of the Wilkins and Wontkins premiums or puppets, or their character names, were used on Wilkins coffee cans or other product containers.
40. The Wilkins and Wontkins premiums, which were approved by Jim Henson and based upon drawings created by him, bore copyright and patent pending notices in the name of the John H. Wilkins Company with a date of 1958. (Pretrial Ord. § E (¶¶ 46, 53); Hefler 78, 83, 95; Pl.Ex. 51 (¶ 43); Def.Exs. 8, 9). At least 65 of the John H. Wilkins commercials also bore a copyright notice in the name of the John H. Wilkins Company. (Pl.Ex.6). I find that the parties were concerned about using the proper copyright notice to protect the exclusive rights being enjoyed by the John H. Wilkins Company, for their mutual benefit, and with respect to the premiums. (Pl.Exs.25(B), 26H, 27(F); Def.Ex. 43). I also find that the John H. Wilkins Company, as the advertiser, had sound business reasons for wanting its own name in the copyright notice. (Id. and Trial Tr. 275-76, Perle).
41. Mr. Henson was paid a royalty on sales of the premiums (Pl.Exs.27(f) last ¶, 28(h), 31(c)). As early as 1962, in connection with premiums for out-of-town advertisers, Muppets, Inc. handled these transactions on its own with no involvement of, or payment to, the John H. Wilkins Company. (Pl. Ex.27(j); Def.Exs. 106, 109; Hefler 87-89).
42. The John H. Wilkins Company never intended to use on its own and never used the Wilkins and Wontkins puppets at all the actual puppets were retained by the Hensons and used by them alone in connection with their performances in the John H. Wilkins commercials and the out-of-town commercials. (Pretrial Ord. § E (¶¶ 9, 10, 28)). The John H. Wilkins Company never intended to and never did use the commercials or the premiums in any manner other than to promote its coffee and tea products in the retail trading market in the greater Washington D.C. area. (Hefler 6-7, 13, 20, 21, 24, 28-29; Pl.Ex. 45 (¶¶ 20, 47, 92, 93, 103)).
43. I find that the John H. Wilkins Company did not intend by its agreements with Mr. Henson to acquire characters which were to become corporate symbols or trademarks to identify or be associated with Wilkins brand coffee. In the seven years during which the commercials aired, on and off, the character names were not promoted to the public, nor were they used in any of the commercials. Nor were they used as trademarks. (Pl.Exs. 7, 13 (H00751); Def.Exs. 47, 48; JHP, Inc., 867 F.Supp. at 82-83). The character names were so unimportant that they are not even mentioned in the initial letter agreement in November 1957, or even *267 in the September 16, 1958 Assignment, where they are referred to as "certain Muppets." (Pl.Ex.24(a); Def.Ex. 13). Further, Mr. Henson's scripts for other advertisers used different names for the same characters. (Pl.Exs. 94, 95; see also Pl.Exs. 26I, M, and 27C). Instead, I find that the John H. Wilkins Company intended by its agreements with Mr. Henson to acquire his talents as an entertainer, so that commercials could be created to draw attention to its coffee product. The John H. Wilkins Company understood that Mr. Henson's Muppet puppets and all copyrights therein would remain with him when the commercial campaign was over.
44. The John H. Wilkins Company never believed that it obtained any copyright rights with respect to the Wilkins and Wontkins puppets, other than to use Jim Henson's commercials and the premiums and print advertisements containing depictions thereof to promote its coffee product to the retail trade in its trading market, the greater Washington D.C. area, for the duration of its advertising campaign. (Hefler 20-21, 24, 25, 74-75).
45. The John H. Wilkins Company never paid the Hensons or their company for a transfer or assignment of all their rights in Wilkins and Wontkins. (Hefler 41; Pl.Ex. 40A). Based on the expert testimony of Lincoln Diamant, which I find persuasive, the amounts paid to the Hensons and/or Muppets, Inc. in connection with the production of the John H. Wilkins Company commercials were low for the services rendered and do not leave any room for a buy-out of all rights, which would have cost a substantial amount even in those years. (Trial Tr. 101-105). The testimony of Mr. Stone, defendants' expert, is not to the contrary; he testified that his company bought out a puppeteer's copyright in 1950 for $250,000. (Trial Tr. 314, 331, Stone).
46. The M. Belmont Ver Standig Advertising Agency produced the John H. Wilkins Company commercials at various periods of time during the years commencing sometime in late 1957 or 1958 until on or about October 1, 1961, and thereafter Muppets, Inc. produced such commercials through and including at least 1965, but not later than 1968. (Pl.Exs. 24A, 24G, 45 (¶ 90); Furey 65-66; Hefler 74-75, 85; Henson 124-25). Mr. Henson and Muppets, Inc. had sole creative control over these commercials.
47. In light of the fact that while the John H. Wilkins Company commercials were on the air Mr. Henson had given that company "the exclusive film commercial rights to the Muppets," (Pl.Ex.24(a)), and in light of the fact that the John H. Wilkins Company referred non-competing advertiser "clients" to Mr. Henson, I find that the John H. Wilkins Company agreed with Muppets, Inc. that in the event that Muppets, Inc. produced commercials featuring performances of Wilkins and Wontkins for other advertisers outside of the John H. Wilkins Company's market area, Muppets, Inc. was to pay the John H. Wilkins Company a commission for such commercials. (Pl.Ex. 44 (¶ 76); Hefler 41-56; Henson 50-51; 186-89).
48. I also find, based on Mr. Hefler's testimony, which I find both credible and highly persuasive, that the commission paid to the John H. Wilkins Company with respect to out-of-town commercials was not, as defendants contend, a license fee or a royalty payment because the John H. Wilkins Company was the copyright owner of Wilkins and Wontkins. To the contrary, it is clear from his testimony and corroborating documents (Pl.Ex.24J) that this commission was paid for all Muppet puppets used in other commercials, including such puppets as Scoop and Skip, the copyrights to which, defendants concede, were always to remain with Mr. Henson.
49. The out-of-town commercials were produced pursuant to agreements between Muppets, Inc. and the advertisers in question (and/or their respective advertising agencies). The John H. Wilkins Company had no contract with the advertisers, and there is no evidence that its consent was required, sought or given. (Pl.Ex. 45 (¶ 77)). Initially, the Hensons worked out their deal with the other advertisers through the Belmont Ver Standig Agency, with whom Mr. Henson had made a separate agreement (which agreement he bought out for $5,000 as of October 1, 1961) and thereafter through Muppets, *268 Inc. (Hefler 42, 86-90, 92-93). Thus, during the 1958-1961 period, when the Ver Standig Agency was still involved in the out-of-town commercials, the Ver Standig Agency first paid the Hensons, and then, after payment of expenses, remitted to the John H. Wilkins Company its commission, which was a share of profits, and retained the remainder as its fee. After October, 1961, when the Ver Standig Agency was no longer involved, Muppets, Inc. paid the John H. Wilkins Company a 20% commission directly. On this record, I find that the Ver Standig Agency and the John H. Wilkins Company never had a joint venture to sell Mr. Henson's commercial films.
50. As of October 1, 1961, if not earlier, it was agreed that Mr. Henson's obligation to pay commissions to the John H. Wilkins Company for Mr. Henson's out-of-town commercials would end two years after the John H. Wilkins Company ceased using the John H. Wilkins Company commercials. (Pl. Ex.24J).
51. The agreements between Muppets, Inc. and the companies in question (and/or their respective advertising agencies) generally granted the companies the exclusive right in their trading area to broadcast the commercials in which the Wilkins and Wontkins puppet characters were performed by the Hensons. (See, e.g., Pl.Exs. 26A, 27I, 29, 30A, 31A, 32B, 36B, 38).
52. The John H. Wilkins Company had no involvement in, exercised no control over and possessed no right to control the commercials or the quality of the goods and/or services offered by the other advertisers who used commercials featuring performances of Wilkins and Wontkins. As between the John H. Wilkins Company and Mr. Henson, Mr. Henson and his company had sole control, including creative control, over these commercials. (Hefler 25, 89, 92-93; Pl.Exs. 26(A, B), 27(A, B, I), 28A, 29, 30(A), 31(A), 32(B), 38, 36(A-B)).
53. Defendants' assertion that the John H. Wilkins Company acquired all copyright rights in Wilkins and Wontkins from the Hensons is based exclusively on the transfer purportedly effectuated by the September 16, 1958 Assignment; defendants admit that they know of no other documents or evidence which they contend constitutes a transfer of copyright rights in Wilkins and Wontkins from the Hensons and/or Muppets Inc., the Hensons' company, to the John H. Wilkins Company. (Pl.Ex. 46 (¶¶ 125-28)).
54. Defendants also contend that certain patent rights in Wilkins and Wontkins were assigned by the Hensons to the John H. Wilkins Company pursuant to an assignment executed on October 16, 1958 (the "October 16 Assignment"). (Pl.Ex. 51 (¶ 24)).
55. Documentary evidence, oral testimony, conduct of the parties and the surrounding circumstances, and evidence of custom and practice establish that the September 16, 1958 Assignment was not the complete agreement between the parties and was not intended to transfer all rights, including copyright rights, in the Wilkins and Wontkins puppets in perpetuity to the John H. Wilkins Company.
56. The September 16, 1958 Assignment and October 16, 1958 Assignment were entered into shortly prior to the sale and distribution of the Wilkins and Wontkins premiums, around the time the Hensons and/or Muppets, Inc. began performing the Wilkins and Wontkins puppets to promote the products of companies other than the John H. Wilkins Company and around the time when such companies began expressing interest in distributing premiums to promote their products. (JHP, Inc. at 178; Pl.Exs. 25A-B; 26B-K; 27A-F; 28A-G; 29; 45 (¶ 98)).
57. Jane Henson believes that the September 16, 1958 Assignment related to the premiums and protecting rights against third parties. (Jane Henson 155-56, 172-74, 207-08).
58. The John H. Wilkins Company was represented by intellectual property counsel during, but not solely in 1958. (Pl.Ex. 47 (¶ 195), Pl.Ex. 42 (M01090-1424); Hefler 38; Furey 58-60).
59. The September 16, 1958 Assignment was drafted by attorneys for the John H. Wilkins Company. (Trial Tr. 186, Olsson; Trial Tr. 270-71, Perle; Trial Tr. 486, Baumgarten; Hefler 91; Pretrial Ord. § E ¶¶ 31 *269 and 39). I find it most probable that the September 16, 1958 Assignment was recorded by attorneys for the John H. Wilkins Company. (Trial Tr. 420, 488-489, Baumgarten). Further, there is no evidence that Mr. Henson was notified of such recordation.
60. Although the parties' records are incomplete, and there is no documentary evidence other than the document itself as to who prepared the 1958 Assignment, documents produced by Helen Marmoll show that during the 1950s and 1960s, Mr. Hefler regularly exchanged correspondence with the law firm of Scrivener Parker Scrivener and Clarke, an intellectual property law firm. (Pl.Ex. 42 (M01090-1424); Hefler 38; Furey 58-59).
61. With respect to Mr. Henson's agreements with the John H. Wilkins Company, Mr. Henson did his own negotiating and never had anyone else with him. (Hefler 92, 95).
62. An attorney represented the Hensons in connection with the incorporation of Muppets, Inc., but there is no evidence that any other attorneys were representing them at that time. (Jane Henson 161-62).
63. Documents produced in this case that refer to copyright ownership of Wilkins and Wontkins reflect that the John H. Wilkins Company was actively interested in maintaining copy-right protection and/or in preventing copyright infringement. (Pl.Exs.25(B), 26(H), 27(F), 27(G), 28(G), 31(B), 42 (see, e.g., M001097, M001154-55, M001212, M001309, M001334, M001338; see also, M001318-22); Def.Exs. 31, 41, 42, 43, 72).
Business Climate of the Relevant Time Period
Expert Testimony with respect to Business Practices
64. Plaintiffs' expert Lincoln Diamant was qualified as an expert in the broadcast commercial industry in the 1950s and 1960s. As a television commercial producer for such leading advertising agencies as McCann-Erickson, Inc., Ogilvy & Mather and Grey Advertising, Inc., among others, and eventually for his own company, Spots Alive, from 1949 through 1992, Mr. Diamant watched and directly participated in the evolution and development of the customs and practices of the television commercial industry and had extensive personal involvement in negotiating and administering talent agreements and the applicable talent union contracts. (Trial Tr. 63-66, Diamant; Pl.Ex. 73).
65. Defendants did not seek to qualify Martin Stone as an expert witness in the television commercial industry. Rather, he was qualified as an expert in the licensing industry, which is an industry devoted to the merchandising of names, fictional characters, including puppets and personalities. (Trial Tr. 320-21, 329, Stone). I find Mr. Stone's testimony to be entitled to less weight and, therefore, less persuasive than Mr. Diamant's because, in the 1950s, there was no significant overlap between the television advertising industry and the licensing industry, and neither the John H. Wilkins Company nor Jim Henson was in the licensing industry at that time. (Trial Tr. 71, Diamant; Trial Tr. 330-31, Stone). Moreover, the licensing industry was just starting out in the 1950s, and few realized the potential for exploiting their works in this manner. (Trial Tr. 308, 328-29, 365-67, Stone). In the 1950s and 1960s, it was not common for advertisers to license elements of their commercials to third parties. (Trial Tr. 71, Diamant; Trial Tr. 365-67, Stone).
Agreements in the Television Commercial Industry
66. Roger Hefler's testimony that the only rights that the John H. Wilkins Company obtained in the Wilkins and Wontkins puppets were the exclusive rights to use the puppets in connection with its advertising campaign to promote its products in its region for the life of its advertising campaign and that whatever rights were granted to the company with respect to the puppets were terminable at the conclusion of the advertising campaign is fully consistent with the custom and practice of the television advertising industry in the 1950s and 1960s. (Trial Tr. 107, Diamant; Pl.Ex. 83).
67. In the late 1950s, the television commercial industry was a simpler business than it is today, and transactions were much less frequently documented on paper. A handshake *270 often sealed an agreement, and written contracts were generally simpler agreements. Much of the business was built on familiarity and trust. (Trial Tr. 67-69, Diamant; Trial Tr. 313 ("[T]hings were done very quickly ... There were no contracts. There were words of mouth...."), Stone; Pl.Ex. 83).
68. Even in the 1950s, however, an agreement whether oral, written or a combination of both between a television advertiser or its advertising agency on the one hand and the "talent" that appeared in or created copyrightable material for television commercials for that advertiser on the other hand would normally address numerous basic points. Because it fails to address so many of the points that would normally be covered by such an agreement, I find that the September 16, 1958 Assignment signed by Jim Henson and Jane Nebel certainly is not the complete agreement between the Hensons and the John H. Wilkins Company regarding the Wilkins and Wontkins commercials. (Trial Tr. 90-92, 105-106, Diamant).
69. TV commercials are temporary tools for temporary campaigns, and long-running commercials are the exception, not the rule. In the late 1950's, as today, advertisers and advertising agencies worked from the premises that (a) advertising campaigns have lives of limited duration and are generally targeted to particular audiences in a specific geographic area through specific media, and (b) they purchased only the rights required to effectuate the campaign. (Trial Tr. 69-71, Diamant).
70. While the advertiser customarily owned whatever elements of its commercials that were created by the creative department of its advertising agency, it did not customarily own the elements of its commercials created by outside people. (Trial Tr. 72, Diamant).
71. In the late 1950s, performers supplying creative materials for commercials customarily licensed those materials for specified uses and retained ownership of their materials. This was particularly true of a creator such as a puppeteer who supplied such materials as part of his performance. Advertisers customarily obtained only a right to use the elements of their television commercials for a set period of time in a specified geographic area. It was not, however, the custom and practice of television advertisers to obtain perpetual rights in material created by an independent creator/performer for use in a television commercial. Most advertisers had no need for a complete grant of all rights in the elements of their commercials and were unwilling to pay the higher price that would have been required for such a grant. (Trial Tr. 69-71, 90-96, 111, Diamant; Pl.Exs. 70A, 70B, 88).
72. Agreements for the production of television commercials in the late 1950s were almost invariably structured as grants of limited rights for limited periods of time. In the case of talent, the advertiser (or its agency) customarily bought the right to use a particular performance for a specified period of time in a specified geographic area, with rights to renew. Puppeteers were treated no differently from other performers in this respect; when puppeteers created and performed their own puppets, the advertiser bought rights to broadcast the performance, not rights in the puppets. It was not customary for puppeteers to part with all rights in their puppets in the 1950s and 1960s, because puppeteers generally continue to and expect to perform their puppets in subsequent performances. For example, Frank Paris, the puppeteer who created the original Howdy Doody, Paul Winchell, the ventriloquist who performed Jerry Mahoney, and Shari Lewis, the puppeteer who performed Lamb Chop, Hush Puppy and other characters, all retained ownership of their characters and continued performing them in different contexts. Defendants' expert, Mr. Stone, was unable to identify any example of any outright sales of all rights in a puppet character (including ventriloquists' dummies) to an advertiser or an ad agency in the 1950s or 1960s. (Trial Tr. 72-73, 80-83, 99-101, Diamant; Trial Tr. 312-13, 341, 347-48, 361, Stone; Trial Tr. 432, Baumgarten; Pl.Exs. 70A, 70B, 88).
73. Mr. Stone confirmed that it was absolutely not customary for copyright owners to transfer all copyright rights in characters in the 1950s and 1960s. (Trial Tr. 334-35, *271 Stone). For example, when Mr. Stone licensed characters, advertisers "never, never received rights from us other than for the particular promotion." (Trial Tr. 322, Stone; see also Trial Tr. 339-40, 341-43, Stone).
74. There was no established custom or practice with respect to who would own the rights in a character that was created specifically for advertising where the character had in its name the name of the company for which it was created. (Trial Tr. 373, Stone; see also Trial Tr. 203, Olsson).
The AFTRA and SAG Codes
75. Both the American Federation of Television and Radio Artists ("AFTRA") and the Screen Actors Guild ("SAG") had collective bargaining agreements, or codes, governing their members' performances in television commercials during the relevant time period. The SAG and AFTRA codes were based upon and reflected industry custom and practice in the television advertising industry. (Trial Tr. 74-78, Diamant; Pl.Exs. 70A, 70B, 88).
76. The AFTRA and SAG codes establish a maximum period of use and reuse for television commercials (generally a year and a half from the date of first use) and give a performer the right to veto further use of a commercial in which he or she appears after the expiration of such maximum period. (Pl. Exs.70(a) (H03863, H03891, H03928-29, H03987, H04052), 70(b) (H03646, H03686, H03737, H03798)).
77. Prior to November 16, 1958, the AFTRA code governing television commercials was the 1956-58 AFTRA Code of Fair Practice for Network Television Broadcasting (the "1956 AFTRA Code"). Television commercials were subsumed under that code for the historical reason that originally single advertisers sponsored entire programs. (Trial Tr. 79-80, 83-84, Diamant; see, e.g., Pl.Ex. 88 (§§ 20, 29, 44)).
78. The 1956 AFTRA Code was in effect from November 16, 1956 to November 15, 1958, inclusive, and covers the John H. Wilkins commercials that were created during the time period that it was in effect. (Trial Tr. 85, 88-89, Diamant; Pl.Ex. 88(§ 1)).
79. Although the title of the 1956 AFTRA Code refers to "network television," the code defines a "network television program" as one which is broadcast over two or more television stations (Pl.Ex. 88 (§ 71)), and the John H. Wilkins commercials were broadcast over two or more television stations. (Pl. Exs.24B, 25C-E). There was no separate AFTRA Code in 1956-58 that covered the local Washington, D.C. market, and any discrepancy between the minimum wages established by the 1956 AFTRA Code and the wages paid to the Hensons can be explained by the fact that AFTRA could modify the minimum wages by written consent. (See Pl.Ex. 88, (§§ 88(b), 76, 77)).
80. Contemporaneous correspondence reflects the fact that Jim Henson and the John H. Wilkins Company, and/or its advertising agency, the M. Belmont Ver Standig Agency, agreed to be bound by the 1956 AFTRA Code with respect to the Wilkins and Wontkins commercials produced prior to November 15, 1958. (Trial Tr. 89, Diamant; Pl.Exs. 24(a)-(c), 27(a), 27(d), 28(a), 40(a), 88 (§§ 66, 67)).
81. All individual contracts between AFTRA members and producers who either signed or signified their intention to abide by the 1956 AFTRA Code were subject to the terms of the 1956 AFTRA Code, and, in the case of any inconsistency, the 1956 AFTRA Code prevailed. (Pl.Ex. 88 (§§ 66-67)).
82. The 1956 AFTRA Code provides that a producer and performer may not contract for services outside the scope of the Code in any manner that conflicts with that Code. (E.g., Pl.Ex. 88 (§§ 57, 66, 67, 68)). It further provides that the acceptance by an AFTRA member of payment or other consideration for any work or services under the 1956-58 AFTRA Code shall not be deemed a waiver by such AFTRA member or a release or discharge of his or her contractual rights. (Pl.Ex. 88 (§ 64)). Indeed, the 1956 AFTRA agreement provides that "[r]eleases, discharges, notations on checks, cancellations, etc., and similar devices which may operate as waivers or releases shall be null and void to the extent provided for above unless AFTRA's prior written approval is first had and obtained." (Id.).
*272 83. The 1956 AFTRA Code provides that every engagement for a single television broadcast or for multiple television broadcasts within one calendar week shall, if in writing, be on a specified standard form of contract, and, if oral, shall be deemed to be on such standard form. Additions to the standard form must be more favorable to the performer than, or not inconsistent with, the express provisions of the standard form contract. (Trial Tr. 91, Diamant; Pl.Ex. 88 (§ 68)).
84. The 1956 AFTRA Code defines "materials" as "any materials, ideas, creations, and properties" and provides as follows:
If this agreement requires, as an express additional provision, that Performer furnish materials (herein called `required materials') in connection with his performance hereunder, Performer shall submit such required materials to Producer at such time prior to performance thereof as may be reasonably designated by Producer, and such required material shall, as between Producer and Performer, unless otherwise expressly provided in this agreement under the heading `Additions', be and remain the property of Performer.
AFTRA required disclosure of agreements between producers and performers whereby the producer obtained ownership of required materials furnished by the performer on the Standard AFTRA Engagement Contract in order to protect performers from exploitation and overreaching by producers. (Trial Tr. 91-95, Diamant; Pl.Ex. 88 (§ 68, item 2(b))). There is no evidence that any such disclosure was made in connection with the John H. Wilkins commercials.
The Compensation Paid to the Hensons
85. The amounts that were paid to the Hensons for their work on the John H. Wilkins commercials in 1957 and 1958 are low for the various services they provided, which included supplying the John H. Wilkins Company with the talent for the commercials consisting of at least two puppeteers, the creative idea, the copywriting and the storyboard, the set and costume design, the use of two original puppets and the exclusive film commercial rights to the Muppets for a period of time. If an advertiser wanted to acquire all rights in a character created by an independent creator for use in a television commercial in the late 1950s, it would customarily pay a large sum for such rights. (Trial Tr. 100-105, 127, Diamant; Trial Tr. 314, 331, 340, 370-71, Stone; Pl.Exs. 24(a)(d), 40(a), (b)).
86. The SAG codes in effect in the 1950s distinguished between situations in which advertisers owned the puppet and situations in which the puppeteer owned the puppet. If the performer owned the puppet, the performer would receive on camera reuse payments, whereas if the sponsor owned the puppets, the performer would receive off camera reuse payments if he spoke, and no reuse payments if he did not speak. Those provisions reflected industry custom and practice at the time, and were later adopted by AFTRA. (Trial Tr. 131-32, Diamant; Pl. Exs. 70A (H03863, H03892, H03932, H03990-91, H04059-60), 70B (H03736, H03797)).
87. Jim Henson received on camera reuse payments for his performances of Wilkins and Wontkins from the John H. Wilkins Company. (Pl.Exs.27(a), 27(d) and 28(a); Pretrial Ord. § E, ¶ 28).
Practices of Copyright Lawyers in the 1950s and 1960s
Qualifications of Copyright Law Experts
88. Defendants' copyright expert Paul Baumgarten was not a member of the copyright bar in 1958. As Mr. Baumgarten testified: "I wasn't really around this business in the fifties. I can speak better probably in the late sixties and the early seventies." (Trial Tr. 470, Baumgarten). He did not speak to others before formulating his opinion, nor did he rely on any of the literature he reviewed in formulating his opinion. (Def.Ex. 252, Trial Tr. 423, 428-29, 470, Baumgarten).
89. In contrast, plaintiffs' experts E. Gabriel Perle[3] and Harry R. Olsson, Jr. were *273 active members of the copyright bar in the 1950s. Mr. Baumgarten acknowledged that Mr. Perle is one of the recognized experts in the book and periodical publishing fields and that Mr. Olsson is a very well-respected lawyer in the audiovisual fields. (Trial Tr. 138-49, Olsson; Trial Tr. 237-48, Perle; Trial Tr. 432, Baumgarten; Pl.Exs. 34, 75).
Background
90. Copyright issues in the television commercial field are similar to issues in other fields. Television commercials fell into the motion pictures category of copyrightable works under the 1909 Copyright Act. (Trial Tr. 149-51, Olsson; Trial Tr. 430, Baumgarten).
91. In the 1950s and 1960s, copyright practitioners, owners and users operated under three artificial but rigid constraints imposed by the 1909 Copyright Act:
(a) a dual system of copyright protection. Common law copyright protection existed from creation of a work until its "publication." Publication triggered the loss of common law copyright and the opportunity to obtain statutory copyright protection, which (with certain limited exceptions) applied only to published works;
(b) an inflexible statutory requirement that a copyright notice, including the name of the copyright proprietor, be affixed to each copy of a published work. Publication of a work by or under the authority of the copyright proprietor without a proper notice, such as a notice in the name of an exclusive licensee rather than the proprietor, was "divestive;" the result was forfeiture of the copyright, and the work entered the public domain. Under the 1909 Copyright Act, there were at times substantial questions as to what constituted publication; and
(c) copyright was regarded as an indivisible and single bundle of rights. The individual rights comprising that bundle could not be separately owned. Thus, even an exclusive licensee of commercially important rights could not sue to enjoin or collect damages for infringement of that licensee's rights.
These three constraints created substantial risks for copyright owners and users and led to the utilization of artificial and technical mechanisms to avoid those risks.[4] (Trial Tr. 152-54, 162-64, 174-76, Olsson; Trial Tr. 250-52, Perle).
92. The doctrine of indivisible copyright did not reflect commercial reality; for example, authors routinely sold magazine, book and motion picture rights to different buyers. However, a grant of anything less than all rights was treated as a mere license under the law. (Trial Tr. 151-57, 161, 165-69, Olsson).
93. Business people and lawyers dealing in copyright issues did not always draw the distinction between licenses and assignments of copyrights under the 1909 Act with precision. For example, although under the 1909 Act, an assignment was supposed to be an assignment of all rights under copyright, Mr. Baumgarten labeled licenses as "assignments" in his practice and, in his testimony, interchanged assignments of rights under copyright with licenses. (Trial Tr. 162-64, Olsson; Trial Tr. 436, 443-45, Baumgarten).
94. The distinction between a copyright assignment and a copyright license was an extremely significant one to the copyright lawyers and users in the 1950s. A copyright proprietor who had been assigned all copyright rights enjoyed a number of significant benefits that a mere licensee did not. (Trial Tr. 162-64, Olsson).
95. Under the 1909 Act, the name of the copyright proprietor had to be used in the copyright notice affixed to the work, and *274 inquiries about the work would often be directed to the person named in the notice. The copyright proprietor could register the copyright (assuming the statutory formalities had been met) and sue in its own name for infringement without joining anyone else as a plaintiff. These statutory benefits were important ones to copyright users who wished to protect their rights against infringers and protect their investments. Moreover, failure to comply with the statutory formalities, such as omission of the copyright notice or the use of the wrong name in the notice, could result in the work's falling into the public domain. A user with a substantial interest in a copyrighted work would want to make sure the statutory formalities were satisfied in order to preserve the value of its rights. (Trial Tr. 164-65, Olsson).
Use of Short Form Assignments
96. In commercial copyright transactions, an assignment is rarely a stand-alone document. Typically an assignment is made as part of a larger agreement or series of agreements. That was true in the late 1950s and remains true today. (Trial Tr. 171, Olsson; Trial Tr. 265, Perle; Trial Tr. 408, 416-17, 434-35, Baumgarten).
97. Short form assignments were used in a number of industries under the 1909 Copyright Act, including the motion picture and television industries. (Trial Tr. 170-71, Olsson; Trial Tr. 440, Baumgarten).
98. In the late 1950s, copyright lawyers often prepared short form assignment documents for recordation with the Copyright Office which simply stated that the author transferred all rights under copyright to the user. The details of the parties' business deal were not reflected in the short form assignment; rather they were addressed in a separate agreement or understanding between the parties which governed their relationship. (Trial Tr. 343-47, Stone; Trial Tr. 167-69, Olsson; Trial Tr. 259-60, Perle; Trial Tr. 435-36, 441, Baumgarten).
99. Under the 1909 Copyright Act, in cases where a short form assignment and a longer agreement or understanding were used, the longer agreement or understanding controlled as between the parties. The short form assignment was basically a notice document for recordation in the Copyright Office. (Trial Tr. 169, 171-73, Olsson; Trial Tr. 264, Perle; Trial Tr. 435-36, 441, Baumgarten).
100. In the 1950s and 1960s, there was no legal requirement for a short form assignment to cross-reference the separate agreement or understanding between the parties. Sometimes the short form referenced the separate agreement or understanding but sometimes it did not. There were many different forms of short form assignment. (Trial Tr. 259-60, Perle; Trial Tr. 409, 441, 442, 451, Baumgarten).
101. At times, the separate agreement between the parties contained limitations or conditions upon the assignor's right to exploit the work that were not evident from the face of the short-form assignment document alone. Such limitations could include an undertaking to retransfer, an automatic reversion or a limitation on the length of time during which the rights were transferred. (Trial Tr. 164-70, Olsson; Trial Tr. 261-62, Perle; Trial Tr. 441, 446-49, Baumgarten).
102. Sometimes, the so-called short-form assignment was merely a license of certain rights under copyright. Mr. Baumgarten labeled transfers of less than all rights under copyright as "assignments" because "if it had the word `license' on it, the Copyright Office would have thrown it back." (Trial Tr. 400, 436, Baumgarten).
Use of the Assignment/Reassignment Tool
103. In the 1950s and 1960s, short form assignments were sometimes accompanied by a separate agreement or understanding that the rights granted would revert or be reassigned to the assignor in the future (the "assignment/reassignment tool"). The reassignment language did not generally appear on the face of the assignment. Only the short form assignment would be recorded with the Copyright Office. For example, in the magazine industry, where the tool was frequently employed, an author of an article would assign the copyright to the magazine publisher, and the publisher would simultaneously agree to re-transfer the rights back to the author at a later date, subject to the limited rights acquired by the publisher. *275 (Trial Tr. 255-57, 259-64, 281-82, Perle; Trial Tr. 390-92, 419, 450, 455, Baumgarten).
104. The assignment/reassignment tool was no secret to copyright lawyers doing business under the 1909 Copyright Act. (Trial Tr. 429, 449-50, Baumgarten). It was used by copyright lawyers under the 1909 Act when the need arose, regardless of the industry involved. (Trial Tr. 194, 215, Olsson; Trial Tr. 254, 257, 295-96, Perle; Trial Tr. 390, 392-93, 452-53, 471, 476, Baumgarten).
105. Where the assignment/reassignment tool was employed, the side agreement to reassign the copyright to the author was not always reduced to writing. If the assignment was accompanied by a simultaneous agreement to reassign or an agreement reserving rights to the author, there was a danger that the transaction might be deemed a license rather than a copyright assignment. Under the 1909 Copyright Act, assignments and reassignments of copyrights in unregistered and unpublished works did not have to be in writing, and there was no requirement to record them with the Copyright Office. (Trial Tr. 172, Olsson; Trial Tr. 261-65, 272, Perle; Trial Tr. 391, 405, 451, 458, 489, Baumgarten).
106. Where the assignment/reassignment tool was employed, the reassignment itself was not always reduced to writing. It could have been oral or implied from a course of conduct. Moreover, the reassignment of the copyright was frequently not recorded with the Copyright Office even where it was in writing. (Trial Tr. 272-73, Perle; Trial Tr. 411-12, 454-57, Baumgarten).
107. Authors agreed to use of the assignment/reassignment tool because it was in their interest to avoid a divestive publication of their work, which would cause the work to fall into the public domain. An author, having parted with a particular right and wanting to get on with the business of creating, was often perfectly willing to let the licensee assume the burdens of registration and enforcement, as well as the attendant legal fees. Particularly where there was an ongoing relationship between the author and the user, the author trusted the user to abide by the limitations of their agreement and not to abuse the apparent assignment of all rights, which was executed merely to satisfy formal legal needs. (Trial Tr. 168, Olsson; Trial Tr. 264, Perle).
108. It is generally not possible to discern from the face of a short form assignment of copyright whether it was intended to be a bona fide transfer of all rights under copyright in perpetuity or a more limited license. (Trial Tr. 290-91, 294-95, Perle; Trial Tr. 410, Baumgarten).
109. There are reasons for using the assignment/reassignment tool on the facts of this case, and it was Mr. Perle's opinion that the John H. Wilkins Company and the Hensons employed the tool here. (Trial Tr. 188-91, 215-16, Olsson; Trial Tr. 252-53, 296-98, Perle).
a. First, under the 1909 Copyright Act, an exclusive licensee of valuable rights in an unpublished work such as the John H. Wilkins Company could lose that exclusivity if the owner of the common law copyright published or authorized publication of the licensed work without the requisite copyright notice, and there was at times a substantial question as to what constituted publication. (Trial Tr. 165, 189-90, 219-21, Olsson; Trial Tr. 252-53, Perle; Trial Tr. 402-03, 458-59, Baumgarten).
b. Second, the John H. Wilkins Company could protect and enforce its rights far more effectively if it were the legal owner of the copyrights in the puppets. For example, assuming that the John H. Wilkins Company had acquired the copyrights in the commercials featuring Wilkins and Wontkins but not in the underlying Wilkins and Wontkins puppets, it would not have been able to bring a copyright infringement suit in its own name against another company offering premium items depicting the Wilkins and Wontkins characters, nor would it have been able to prevent another advertiser from creating its own commercial with its own script using the Wilkins and Wontkins characters. (Trial Tr. 461-62, Baumgarten). It may also have been barred from suing an infringer who only copied frames of the commercial depicting the puppets under *276 the de minimus doctrine. (Trial Tr. 223, Olsson).
c. Third, use of the assignment/reassignment tool would enable the John H. Wilkins Company to use its own name in the copyright notice affixed to the Wilkins and Wontkins premiums it offered to its customers. When a company is using a premium to promote its product, it understandably prefers to use its own name on the premium; another's name detracts from the advertising message. (Trial Tr. 190-91, Olsson; Trial Tr. 252-53, 275-76, Perle).
110. The assignment/reassignment tool was used by copyright lawyers in the audiovisual field when the need arose. (Trial Tr. 215, Olsson; Trial Tr. 257, 282-84, 285-86, Perle; see also Trial Tr. 471, Baumgarten). Indeed, the 1963 edition of Nimmer on Copyright states (at pp. 518-19):
The problem of indivisibility here under scrutiny is most apparent with respect to magazines, but it is not, of course, unique to that field. Similar questions of whether the person in whose name the copyright notice appears is the assignee-proprietor or merely a licensee have arisen in connection with book and music publishing and may potentially arise in any field in which copyrighted materials are used.
One context in which the problem may arise in a most serious manner does not seem to be generally appreciated. That is, in connection with motion pictures. It not infrequently happens that a motion picture producer will acquire only `motion picture rights' in an unpublished work. Thereafter a motion picture photoplay based upon the work is published bearing a copyright notice in the name of the producer or other proprietor of the film. Since the producer is only a licensee of the underlying work and since publication of the film probably constitutes publication of the underlying work insofar as it is incorporated in the film, the result is that the underlying work has been published without proper notice and is hence injected into the public domain. ...
"The problem here posed could be resolved either by an additional copyright notice on the film in the name of the owner of the underlying work or by an express grant of all rights to the motion picture producer subject to an agreement by the producer to hold all rights other than motion picture rights in trust for the author with a promise to reconvey upon request by the author. Such a form of conveyance would be in the interest of both the author and the producer since neither wishes to see the underlying work enter the public domain." (Emphasis supplied, footnotes omitted)
(Trial Tr. 476-77, Baumgarten).
111. Similarly, in a 1957 study on the indivisibility doctrine commissioned by Congress in connection with the copyright law revision effort that led to the enactment of the 1976 Copyright Act, Abraham Kamenstein, who later became the Register of Copyrights, wrote:
"It would be a mistake to believe that the doctrine of indivisibility had no application in fields other than periodicals. The same problem is present, in varying degrees, in other copyright areas. Copyright in books, plays and music is divided and subdivided every day. The doctrine may have caused less difficulty in certain fields because the circumstances and practices are different."
(Pl.Ex.72(a) at 22; Trial Tr. 158-61, Olsson).
112. Nimmer on Copyright and the Kamenstein study on indivisibility are highly regarded authorities in the copyright field. (Trial Tr. 158-61, Olsson; Trial Tr. 249-50, Perle; Trial Tr. 427, 428, Baumgarten).
The September 16, 1958 Assignment
113. The September 16, 1958 Assignment signed by Jim Henson and Jane Nebel is not a stand-alone agreement. It is an example of a short form assignment executed for purposes of recordation with the Copyright Office, to satisfy formal legal requirements, and not for the purpose of transferring in perpetuity the copyrights in the Wilkins and Wontkins puppets. It clearly does not contain the complete agreement between the parties because it is missing so many of the terms that would be part of an agreement between an advertiser and an independent creator of *277 television commercials for that company. (Trial Tr. 185-87, 232-33, Olsson; 265-66, 288-89, Perle).
114. In the late 1950s, when a copyright user wanted to obtain perpetual rights in a character (distinct from rights in a work in which the character appeared) it was the practice of the copyright bar to spell this out in no uncertain terms. One compelling reason for this is that in 1954, the Ninth Circuit had issued its opinion in Warner Bros. Pictures, Inc. v. Columbia Broadcasting System, 216 F.2d 945 (9th Cir.1954), which held that the clearest possible language was needed to divest Dashiell Hammet of his rights in his detective character Sam Spade, the principal character in The Maltese Falcon, and that his grant of motion picture, radio and television rights in The Maltese Falcon to Warner Bros. did not, as asserted by Warner Bros., give it the exclusive right to use Sam Spade in those media. In the wake of this watershed case, the copyright bar was on notice that there was the strongest presumption that even when an author transferred the copyright in a work in which a character was fully delineated, the author retained the right to use the character in sequels or other works. After that decision any copyright lawyer representing a user wishing to buy exclusive rights in a character would make certain that the assignment documents said so unmistakably and unequivocally. (Trial Tr. 179-83, Olsson).
115. The September 16, 1958 Assignment does not contain clear and unequivocal language transferring the copyrights in the Wilkins and Wontkins puppet characters. (Def.Ex. 13A; Trial Tr. 183-84, 206-13, Olsson). Mr. Baumgarten himself recognized that the September 16, 1958 Assignment is not a model of clarity. (Trial Tr. 415, Baumgarten).
116. Even defendants' copyright law expert Mr. Baumgarten would not rely upon the September 16, 1958 assignment alone if he were clearing the rights to use the Wilkins and Wontkins characters for a client. He would conduct further investigation. (Trial Tr. 480-81, Baumgarten; see also Trial Tr. 187-88, 233-34, Olsson).
Recordation of Documents in the Copyright Office
117. During the relevant time period, Copyright Office records were not necessarily reliable, current or complete. Because the Wilkins and Wontkins puppets were protected by common law copyright, an assignment of the copyrights in them could have been oral, and there was no legal requirement to record documents pertaining to them with the U.S. Copyright Office. Moreover, in the late 1950s, it was a common practice of copyright lawyers, copyright users and authors to record only short form assignment documents with the Copyright Office that did not fully disclose their complete agreement or understanding. (Trial Tr. 171, 174-75, 178-79, Olsson; Trial Tr. 271-73, Perle; Trial Tr. 435-36, 455, 466-68, 489, Baumgarten).
118. In general, a search of Copyright Office records is just the starting point for an investigation into who owns which rights in a given work. This is particularly true in the case of an unregistered work that was protected by common law copyright. A prudent copyright lawyer would not rely upon a Copyright Office search disclosing only a short form assignment before advising a client to use a work, particularly a work protected by common law copyright. (Trial Tr. 176-79, Olsson; Trial Tr. 272-74, Perle; Trial Tr. 466-69, Baumgarten; see also J. Taubman, 1 Performing Arts Management and Law, § 19.9 at 658-660 (1972) ("Whatever the effect of recordation as to copyrighted works, it would seem that if many forms of literary and artistic properties are not placed under statutory copyright, then it is unlikely that documents relating thereto will be filed in the Copyright Office, and to the extent such documents are filed, that they are necessarily complete. This means that the search in terms of title clearance does not begin or end at the Copyright Office, whether or not undertaken directly by the Copyright Office or by one of the agencies regularly engaged in such activities and who may have on hand facilities prepared by the Copyright Office, such as catalogs of copyright entries.")).
119. In the late 1960s and early 1970s, the Copyright Office was very liberal in accepting *278 documents for recordation and did not make any inquiry into the validity or legal effect of a document. Then, as now, the Copyright Office accepted for recordation a broad range of documents relating to copyrights other than transfers of registered copyrights. Although it was understood that recording documents other than transfers of statutory copyrights was probably legally ineffective under Section 30 of the 1909 Copyright Act and its implementing regulations, prudent copyright lawyers and users often recorded such documents in the hope of giving actual notice of the contents of such documents to persons searching the records of the Copyright Office. (Trial Tr. 173-76, Olsson; Trial Tr. 272, Perle; Trial Tr. 470, Baumgarten).
Additional Evidence Indicating that the 1958 Assignment Did not Reflect the Parties' Entire Agreement
120. The September 16, 1958 Assignment and the October 17, 1958 Assignment were not the only agreements between Jim Henson and Jane Nebel, and/or their successor Muppets, Inc., and the John H. Wilkins Company pertaining to Wilkins and Wontkins and/or television commercials in which Wilkins and Wontkins appeared. (Pl.Ex. 45 (¶ 86)).
121. Defendants concede that the September 16, 1958 Assignment "contains no provisions relating to the performances by the Hensons in the Wilkins and Wontkins television commercials and the Hensons' performances were governed by agreements not contained in the Assignment." (Pl.Ex.83).
122. Such agreements were entered into prior to, at the same time as, and subsequent to the September 16, 1958 Assignment. (Pl. Ex. 45 (¶¶ 87, 88)).
123. In a letter from Jim Young, creative director at M. Belmont Ver Standig Agency, Inc., who was responsible for the John H. Wilkins commercials at M. Belmont Ver Standig Advertising Agency during the approximate period of August, 1958 through May 1961, if not longer, dated September 16, 1958, to John P. Hoag, Jr., Mr. Young stated as follows:
wealth and good times have suddenly overcome [the Hensons] and its [sic] taken years off my life to deal with them at times ... We finally signed an iron-clad contract with them and made considerable concessions to show them we were in good faith. Concessions included the AFTRA rate as stated and many other points, including the `on-camera' and `two-voice' rates.
(Pl.Ex. 27D; 27L; 46 (¶ 177); Ver Standig 19, 46-47).
124. Mr. Hefler's videotaped testimony establishes that he was involved with the agreements between the John H. Wilkins Company and Mr. Henson, including the September 16, 1958 Assignment, and that the assignments neither effectuated nor were ever intended to effectuate a transfer by the Hensons to the John H. Wilkins Company of all rights in Wilkins and Wontkins in perpetuity. His testimony further persuades me that the John H. Wilkins Company never intended to sell its coffee and tea (or any other goods) outside of its trading territory; it only acquired a limited license and had no interest in, and did not acquire all rights in Wilkins and Wontkins in perpetuity; and that the John H. Wilkins Company, in any event, agreed not to compete with the Hensons, and therefore could not have used Wilkins and Wontkins for any other purpose. The Assignments were a part of the whole agreement between the John H. Wilkins Company and the Hensons, executed only for the limited purpose it had, which was to promote Wilkins brand coffee in its territory. (Hefler 24, 29-31, 68-69, 37-38).
125. Wilkins and Wontkins were not trademarks of the John H. Wilkins Company; the John H. Wilkins Company did not intend to, and did not use the visual images or character names of the Wilkins and Wontkins puppets as trademarks; and the characters were only intended to be used as part of an advertising campaign that had a limited life. (Hefler at 11-12, 37-38; Pl.Ex. 49 (¶ 22); JHP, Inc., 867 F.Supp. at 182-83; see also ¶ 50 above). In none of the correspondence during the period 1957-1973 between the John H. Wilkins Company and its intellectual property counsel, in which numerous issues relating to registration and protection of the *279 company's trademarks were discussed, is there any reference to the Wilkins and Wontkins puppets as being trademarks or copyrights of the John H. Wilkins Company, nor is any opinion given by that law firm to the effect that those puppets are trademarks or copyrights of the John H. Wilkins Company. (Pl.Ex. 49 (¶ 23)). The documents show that the John H. Wilkins Company had over 35 registered trademarks from the early 1900s through the 1970s and had a regular practice of seeking registration for its trademarks. (Pl.Ex.42).
126. In a letter, dated February 26, 1960, from James Young of the M. Belmont Ver Standig, Inc., which at the time was the John H. Wilkins Company's advertising agency (Pl.Ex.25(F)), to Chemical Corporation of America (d/b/a "FREEWAX"; hereinafter "Chemical"), M. Belmont Ver Standig, Inc. outlined the terms and conditions under which it would make available to Chemical "FREEWAX `muppet' commercials." (Pl. Ex.35A). Paragraph 4 of the letter states:
While Chemical Corporation of America and FREEWAX will retain full rights of use, subject to the terms herein, the muppet characters will be copyrighted and rights retained by James Henson and/or Muppets, Inc.
This is to prevent their transfer, sale, or other disposition by Chemical Corporation of America, to any individual, firm or other party without express approval of the copyright-holder.
127. In a letter, dated June 20, 1962, from Alden Murray, the business representative for Muppets Inc. during the approximate period of November 1961 through June, 1962, if not longer (Pl.Exs. 26P, 24H, 27K; 46 (¶ 176)), to Chemical, Mr. Murray resumed discussions with Chemical about Muppet Inc.'s producing television commercials for Chemical using the "Muppets." In his letter, Mr. Murray stated:
New characters must be created for Freewax similar to those sketched in the storyboards. As with the Wilkins Coffee type ID's, ownership of the puppets is retained but exclusive use is granted....
(Pl.Ex.35(C)).
128. The Wilkins Coffee Muppet-type TV ID spots were defined as "those situation ID commercials made for the Wilkins Coffee Company using the characters known as `Wilkins' and `Wonktins' only." (See, e.g., Pl.Exs. 26(A), 271 (H01232), 31A, 32B, 38A, and 40A).
129. The aforementioned letters demonstrate that, as between the John H. Wilkins Company and Mr. Henson, it was understood that Mr. Henson was to retain the underlying copyright rights in his puppets, including the Wilkins and Wontkins puppets, and that the John H. Wilkins Company was to have exclusive rights of use for a limited purpose and a limited period of time. I specifically find that generalized references in the business correspondence relating to the John H. Wilkins commercials and about "commercial film rights", "exclusive commercial rights", "production rights", "exclusive rights", "ownership of rights", "ownership", when read in context do not demonstrate in any way that the Hensons had given up, in perpetuity, the underlying copyrights in the puppets. (See, e.g., Pl.Exs. 25B, 26H, 27(E), 27F, 27G, 27H, 28G, 31B; Def.Ex. 42). Instead these reflect that certain rights had been licensed, or exclusively licensed. (Id.).
130. The September 16, 1958 Assignment itself reflects that it is not the complete agreement between the parties. (Def.Ex. 13A; Pl.Ex. 46, ¶¶ 137-40).
131. The September 16, 1958 Assignment does not contain an integration clause. (Def.Ex.13A).
132. The September 16, 1958 Assignment contains numerous ambiguities. (Def.Ex.13A).
133. The October 16, 1958 Assignment provided in part that:
James M. Henson and Jane A. Nebel hereby covenant(s) and agree(s) to and with the said John H. Wilkins Company, its successors, legal representatives and assignee, that, at the time of execution and delivery of these presents, THEY WERE the sole and lawful owner(s) of the entire right, title and interest in and to the said inventions and the application for Letters Patent above mentioned, and that the same *280 are unencumbered and that THEY HAVE good and full right and lawful authority to sell and convey the same in the manner herein set forth.
(Def.Ex.16).
134. The October 16, 1958 Assignment would have been unnecessary if the parties had intended the September 16, 1958 Assignment to effect a transfer of all rights to the John H. Wilkins Company.
135. Mr. Hefler testified that the October 16, 1958 Assignment related to the Wilkins and Wontkins "premiums". (Hefler 75-76; Jane Henson 197). The fact that the John H. Wilkins Company affixed a "patent pending" notice on the premiums, and on nothing else, confirms this intent.
136. There is no evidence that the October 16, 1958 Assignment is a pre-printed form for assignments of patent rights.
137. Based on the testimony of Mr. Harry Olsson, which I find persuasive, regarding the then-existing legal climate, I find that, if the parties had intended to transfer, in perpetuity, all copyrights in the Wilkins and Wontkins puppets, separate and apart from their performances in the filmed commercials, they would have used different language from the words used in the September 16, 1958 Assignment. (Trial Tr. 179-83, 185-87, 232-33).
138. Mr. Shur, who was a patent attorney who was engaged on behalf of the John H. Wilkins Company by Mr. Furey in the late 1950s, obtained design patents on two Muppet figures (Wilkins and Wontkins) that were used in the advertising program at the John H. Wilkins Company. (Furey 12).
139. Of all of the non-parties subpoenaed in this action, including Roger H. Hefler, E. William Furey and his law firm, Furey Doolan and Abel, attorneys for the John H. Wilkins Company, William H. Ashplant, Helen Ver Standig and her agency, the M. Belmont Ver Standig Agency, and E. Lee Winegar, none produced the original or a copy, signed or unsigned, of the September 16, 1958 Assignment, or copies of any other agreements regarding Jim Henson or Muppets, Inc. (Pl.Ex. 45 (¶¶ 82, 85(c)); Pl.Ex. 46, (¶¶ 157-61); see supra ¶ 34).
140. The owner of the copyright in a puppet character typically retained ownership of the physical puppet in order to exploit it. (Trial Tr. 352, Stone). Neither of the defendants nor their purported predecessors retained physical possession of the original Wilkins and Wontkins puppets performed in the John H. Wilkins Company's advertising commercials. (Pl.Ex. 46 (¶ 167); S. Abensohn 153; Hatch I 16, 17, 19; Ver Standig 51). The Hensons, however, did retain physical possession of the original Wilkins and Wontkins puppets performed in the John H. Wilkins Company's advertising commercials. (Asch 39-41; Jane Henson 184).
141. Although Mr. Hefler was familiar with the John H. Wilkins Company's intellectual property, he did not always use legal terms precisely. For example, he testified that the John H. Wilkins Company copyrights were for "the color combinations on our can, the way the script was written, and the blend name", and that "we didn't have any right to the use the term [Muppets] the Muppets was copyrighted by Jim Henson." (Hefler 37-39; See also Pl.Ex. 42 (MOO1097, MOO1154)).
142. Despite the purported significance of the September 16, 1958 Assignment, documentary evidence, oral testimony, and conduct by the parties establishes that regardless of the purpose of the September 16, 1958 Assignment, it was superseded by the Hensons and the John H. Wilkins Company.
143. I am also persuaded by Mr. Hefler's testimony that regardless of the original intent of the parties or the meaning of the September 16, 1958 Assignment, when the John H. Wilkins Company was finished with the advertising campaign in connection with which it used Wilkins and Wontkins in the mid-1960s, all rights granted by Mr. Henson, including any copyrights, in Wilkins and Wontkins reverted to or were transferred back to him or his company by the John H. Wilkins Company. I also find that this was consistent with the original intent of the parties that any rights in the Wilkins and Wontkins puppets would be terminated once the ad campaign had run its course. (Hefler 20-21, 29-31, 73-76, 93) (Hefler 30, 73-77, 94).
*281 144. In addition, on June 8, 1961, the John H. Wilkins Company and Muppets, Inc. entered another written agreement, which does not appear to contain boilerplate language, regarding, inter alia, the production of further television commercials, using, inter alia, Wilkins and Wontkins. (Pl.Ex. 24(J)). The June 8th letter agreement was either signed or the parties acted pursuant thereto. (Pl.Ex. 24(J); Hefler 16-19). The June 8th letter agreement subsequently terminated pursuant to a letter dated July 18, 1962, from Mr. Hefler to Jim Henson. (Pl.Ex. 24(J)).
145. Paragraph 9 of this agreement states that "[t]his agreement is intended to supersede all prior agreements between us or our respective predecessors in interest." The John H. Wilkins Company had no predecessors in interest. Muppets Inc.'s only predecessors in interest were the Hensons. (Pl. Ex. 24(J)).
146. Assignment is often referred to as an agreement by lawyers and others. (Trial Tr. 206, Defendants' counsel; Trial Tr. 490, Baumgarten).
147. The June 8, 1961 agreement limited the John H. Wilkins Company's interest in Mr. Henson's productions and characters to the duration of the contract; this demonstrates that the September 16, 1958 Assignment was no longer in effect or that it had not been intended as a transfer of all rights in Wilkins and Wontkins to the John H. Wilkins Company.
148. In addition, with respect to the arrangements for commissions to be paid to the John H. Wilkins Company should the Hensons use the Skip and Scoop characters for other advertisers, pursuant to the 1961 Letter Agreement, the parties also treated the practice set forth in this letter as applying to third party use of Wilkins and Wontkins. (Pl.Ex. 24(H); Hefler 16-21; Henson 35-36, 39-40, 46-47).
149. The type used in the June 8, 1961 letter from the John H. Wilkins Company to the Hensons and Muppets Inc. appears to be the same as that used in other letters sent out to Jim Henson during the 1960s on John H. Wilkins Company letterhead. (Pl.Ex. 24(J)).
Additional Evidence Pertaining to Parties' Conduct
150. The parties' course of conduct over 25 years further confirms that the John H. Wilkins Company had, at most, only a limited license to use Mr. Henson's performances of Wilkins and Wontkins and the premiums to promote its coffee in the Washington, D.C. area, and that any interest conveyed in the puppets was terminated after its advertising campaign concluded.
151. As set forth more fully in Paragraphs 43 and 47, after the John H. Wilkins Company advertising campaign had run its course, in approximately 1965, the John H. Wilkins Company discontinued all use of Wilkins and Wontkins. (Hefler 36-37; Furey 65-66, Ashplant 35, 48-52, 89-90; JHP, Inc., at 182-83).
152. As set forth more fully in Paragraphs 167-74, in 1974, the John H. Wilkins Company did not list, as assets of the company, any licenses for or the ownership of any copyrights or trademarks in Wilkins and Wontkins, although its intellectual property counsel conducted due diligence and prepared a comprehensive list of all intellectual property rights it owned at that time, in connection with a sale of all its assets to its immediate "successor" and despite the huge success of Sesame Street beginning in 1969.
153. Defendant Coffee Associates and its predecessors had 30 years to claim ownership of Wilkins and Wontkins. Defendant Coffee Associates did not do so until after Mr. Henson's death.
154. Wilkins and Wontkins were only performed in television commercials and were never performed for entertainment or any other purposes such as television programs or motion pictures. (Pl.Ex. 45, ¶ 92).
155. Muppets, Inc. discontinued producing television commercials prior to the commencement of the first broadcast of the Sesame Street educational television series in 1968 or 1969. (Oz 8, 16; Jane Henson 124-25; Pl.Ex. 49 (¶ 21); Pl.Ex. 33(C)).
156. Commencing in 1954, Jim Henson never sold or otherwise transferred the copyrights in any of his characters, whenever *282 created, to anyone other than his company. (Pl.Ex. 45, (¶ 38); Russell 23-27; Pretrial Ord. § E (¶ 22); Pl. Exs. 26A, 271, 29, 30A, 31A, 32B, 33A-C, 34, 35A-C, 36B, 37, and 38; Trial Tr. 45-46, 51, Schube).
157. Mr. Irwin Russell, presently on the Board of Directors of The Walt Disney Company and an attorney specializing in the entertainment field who represented Jim Henson and his companies from the late 1960s until September, 1971, testified that as a guiding principle, Mr. Henson never parted with ownership of any rights, including copyright rights, relating to the characters he created. Rather, he guarded such rights zealously. One example cited by Mr. Russell was a transaction between Mr. Henson and Frito-Lay in or about 1969. (Russell 6-8, 10-11, 23-26, 43-44, 53-54).
158. Throughout the history of Muppet characters, Muppets have been performed only by puppeteers trained by Henson Productions or its predecessors. Over the years, the core puppeteers of the Muppets have remained the same. I find that, in light of this practice and the nature of Mr. Henson's art form, he would not have intended, and did not intend, to transfer rights in perpetuity to his puppets or to separate himself from their performances and creative control over them. (JHP, Inc., 867 F.Supp. at 177; Jane Henson 61-62; Trial Tr. 54-55, Schube; Pl. Ex. 34; Juhl 30).
159. Defendants never attempted to advise Jim Henson Productions or Jim Henson of its claim to own the Wilkins and Wontkins characters until after Mr. Henson's death. In any event, I find that plaintiff did not learn of this claim until June, 1992. (Trial Tr. 60, Schube; see also, Berry 48-49).
160. Jim Henson Productions, Inc.'s conduct since the late 1960s does not reflect any belief, acknowledgment, awareness, or intent that the John H. Wilkins Company or its successors owned or claimed to own any copyright rights in the Wilkins and Wontkins puppets. The only "permissions" ever requested by plaintiffs or their predecessors were to use clips of John H. Wilkins Company commercials, and never with respect to the Wilkins and Wontkins puppets or characters. These requests were consistent with the Hensons' general business practice of seeking permission with respect to use of film clips, even film clips embodying performances of the Muppet puppets. For example, Jim Henson Productions has sought film clip licenses or permissions with respect to the Muppets' appearances on "Sesame Street" and "Sam and Friends", even though it owns the copyrights in all the Muppets therein. This has occurred in those instances where Jim Henson Productions, Inc. was compiling a retrospective program which was composed of clips from prior recorded performances of the Muppets. The "permissions" sought to use film clips of the John H. Wilkins commercials were a few among the dozens of such permissions obtained by plaintiff for its retrospective films (such as those included in Pl.Ex. 84). (D. Abensohn 142-44; Jane Henson 70-71; L. Asch 27-28, 32-34, 36-38; Trial Tr. 41-51, Schube).
161. Although Jim Henson Productions Inc. owns all copyrights in all "Muppet" puppets, in many instances it does not own the copyright in particular filmed performances. In such instances, the owner of the filmed performances has obtained a license from Jim Henson Productions, Inc. to use the filmed performance for specific purposes only, and such owner otherwise has no rights to use the Muppet characters performed therein. (Trial Tr. 44-45, Schube).
162. For many years since at least as early as 1979, the Hensons and/or their company caused to be displayed reproductions of the original Wilkins and Wontkins puppets in numerous exhibitions without requesting permission from defendants or their purported predecessors. (¶ 115(d) of Defendants' Amended Answer to Second Amended Complaint and Counterclaims; Pl.Ex. 9; Asch 37; Henson 81-83).
163. Mrs. Henson's violent physical reaction to Mr. Brady's claim of ownership of Wilkins and Wontkins at his trade show, supports plaintiffs' claim that the Hensons never intended to convey perpetual rights in these characters. (Henson 85, 89, 91-96).
The 1974 Sale of Assets by the John H. Wilkins Co. to Halco
164. In or about 1974, certain assets of the John H. Wilkins Company were sold to Halco. (Pl.Ex. 51 (¶ 21); Ashplant at 20-21).
*283 165. Mr. Ashplant, the Chairman of Halco, testified that at the time of that transaction, the John H. Wilkins Company's retail coffee business had been almost entirely phased out and represented no more than a few percent of its business. He also testified that, at the time of that transaction, Halco was aware that the John H. Wilkins Company had discontinued use of the Wilkins and Wontkins puppets many years earlier. (Ashplant at 7, 12-13, 16-17, 89; Pl.Ex. 49 (¶¶ 25-26)).
166. According to Mr. Ashplant, during the 1970's, at the time of the transaction and thereafter, Halco was chiefly engaged in the institutional food service business. Only an insignificant portion of the Halco business was devoted to retail marketing. An even less significant portion of its business was devoted to retail sales of coffee. (Ashplant at 8, 12-13, 50-51, 90; Pl.Ex. 49 (¶ 27)).
167. The Asset Purchase Agreement dated August 9, 1974, pursuant to which certain assets of the John H. Wilkins Company were purchased by Halco, does not itemize as assets owned by the John H. Wilkins Company subject to the transfer any tangible or intangible rights (including any copyrights, patents or trademarks, or registrations or applications for registration) pertaining to the Wilkins and Wontkins puppets. (Pl.Ex. 54).
168. As evidenced by the letter dated June 14, 1974 and schedules and booklet attached thereto from Samuel Scrivener, Jr. of Scrivener Parker Scrivener and Clarke whom E. William Furey has identified as the John H. Wilkins Company's intellectual property counsel (Furey at 58-59) to "Wilkins Coffee Company" (the name under which the John H. Wilkins Company was doing business), the John H. Wilkins Company directed its counsel to perform an evaluation of all patents, trademarks, assumed names and copyrights as to which the John H. Wilkins Company claimed any rights in connection with the proposed asset purchase by Halco. In the June 14, 1974 letter, Mr. Scrivener states at page 4:
The Schedules attached to this letter constitute an accurate and complete description of all patents, trademarks, trade names, assumed names and copyrights, and all applications therefor, presently owned or held by the company or under which the company owns or holds any license or in which the company owns or holds any interest.
The attached schedules and booklet do not list any rights with respect to the Wilkins and Wontkins puppets, including any trademarks, copyrights or patent rights, except expired patent rights. (Pl.Ex. 55B).
169. Messrs. Furey and Ashplant testified that, to the best of their knowledge, the assets listed on Schedules A-F and the booklet[5] prepared by Mr. Scrivener and annexed to his June 14, 1974 letter are the same as those that were ultimately listed on the Disclosure Schedule referred to in ¶ 3.12 of the August 9, 1974 Asset Purchase Agreement. (Furey at 86-97, 147-50; Ashplant at 43, 97-98). They also testified that, to the best of their knowledge, the booklet was the Disclosure Schedule referenced in ¶ 3.12 of the Asset Purchase Agreement. (Furey at 111, 117, 146-150; Ashplant at 97-98). Paragraph 3.12 of said Agreement states:
the Disclosure Schedule contains an accurate and complete description of all patents, trademarks, trade names, assumed names and copyrights, and all applications therefor, presently owned or held by Wilkins, under which Wilkins owns or holds any license or in which Wilkins owns or holds any interest.
(Pl.Ex. 54 (at 001340)). Additionally, paragraph 10.05 of the Agreement states that the Agreement, including the schedules and other writings referred to in the Agreement, "contains the entire understanding of the parties." (Id. at 001378).
170. The accuracy and completeness of the Disclosure Schedules and booklet discussed in the preceding paragraph was confirmed both by Mr. Furey and Mr. Ashplant, counsel for seller and buyer, respectively. (Furey at 86-97, 129-157; Ashplant at 25-30, 36, 41-43, 51, 94-95, 97-98). This is further corroborated by the Assignment of Trademark *284 Registrations dated March 20, 1975 from the John H. Wilkins Company to Halco. (Pl.Ex. 56). The trademark registrations listed therein match those listed in Pl.Ex. 55B. Also, Messrs. Furey and Ashplant testified that they were not aware of any amendments or modifications to the Asset Purchase Agreement or any side agreements thereto. (Furey at 149-50, 155-156; Ashplant at 47-48).
171. With respect to Halco's acquisition of certain assets of the John H. Wilkins Company, neither Mr. Ashplant nor Mr. Furey recalls any negotiations concerning the Wilkins and Wontkins puppets or any discussion of Wilkins and Wontkins in connection with the sale of the goodwill of the John H. Wilkins Company. (Furey at 157-58; 163-65; Ashplant at 35, 48-52, 90).
172. Mr. Furey testified that he did not know whether, at the time of the 1974 Asset Purchase Agreement, the John H. Wilkins Company owned any rights in Wilkins and Wontkins, and that, in any event, he was not aware that the John H. Wilkins Company owned any copyrights in Wilkins and Wontkins at that time. (Furey 124, 144-45).
173. Mr. Ashplant testified that, with respect to Halco's acquisition of certain assets, Halco did not think the Wilkins and Wontkins characters were among the assets it was acquiring from the John H. Wilkins Company. (Ashplant at 27-30, 45, 48, 90, 91, 94, 97, 98). He further testified that Halco had no interest in them and no plans to use them. (Id. at 16-17, 20, 35, 90; Furey 157-65).
174. Mr. Ashplant testified that, during the period 1974-1981, neither Halco, Tobin nor any related entity, subsidiary, affiliate, or parent: (1) used the Wilkins and Wontkins puppets in any form or medium; (2) licensed the right to use them to any other person or entity; or (3) ever planned to use or license them for any purpose. (Ashplant at 16-20, 50-53); Pl.Ex. 49 (¶¶ 35 and 38).
CONCLUSIONS OF LAW
175. The Wilkins and Wontkins puppets are unpublished, original works of authorship and constitute copyrightable subject matter subject to the full protection of the United States Copyright laws. See Jim Henson Productions, Inc. v. John T. Brady & Assoc., 867 F.Supp. 175, 186 (S.D.N.Y.1994).
176. Under the 1909 Copyright Act, common law copyright ownership in the Wilkins and Wontkins puppets vested initially in the authors thereof, namely, Jim Henson and Jane Nebel Henson. See, e.g., 1 M. Nimmer & D. Nimmer, Nimmer on Copyright, § 5.01[B] at 5-6 (1995 & Supp.1996) ("Nimmer"); 17 U.S.C. § 4 (1976).
177. Under the 1909 Copyright Act, a transfer of common law copyrights did not have to be in writing. Epoch Producing Corp. v. Killiam Shows, Inc., 522 F.2d 737, 747 (2d Cir.1975), cert. denied, 424 U.S. 955, 96 S.Ct. 1429, 47 L.Ed.2d 360 (1976). Accord Jerry Vogel Music Co. v. Warner Bros. Inc., 535 F.Supp. 172, 175 (S.D.N.Y.1982); 3 Nimmer, § 10.03[B][2] at 10-45.
178. The Hensons duly transferred their copyright rights, in, inter alia, the Wilkins and Wontkins puppets to their newly-formed, family-owned company, Muppets Inc., in or about November 1958, orally or by conduct. Id.
179. Even assuming, arguendo, that the Hensons' transfer of their copyright rights in the Wilkins and Wontkins puppets to their company, Muppets Inc., is insufficiently demonstrated, Jane Henson and the Estate of Jim Henson have ratified such transfer by joining in this lawsuit or, alternatively, are the owners thereof.
180. Jim Henson Productions' corrected copyright registrations for the Wilkins and Wontkins puppets constitute prima facie evidence of the validity of the copyrights and the facts stated in the corrected certificates, including plaintiffs' ownership of the copyrights in said works, and such registrations are valid and in full force. 17 U.S.C. § 410(c).
181. Defendants have the burden of disproving Jim Henson Productions' ownership of the copyrights in the Wilkins and Wontkins puppets and the facts stated in its certificates of copyright registration. Princess Fabrics Inc. v. CHF, Inc., 922 F.2d 99, 102 (2d Cir.1990); Gaste v. Kaiserman, *285 863 F.2d 1061, 1064 (2d Cir.1988); Tienshan, Inc. v. CCA Internat'l (N.J.), Inc., 895 F.Supp. 651, 656 (S.D.N.Y.1995); United Feature Syndicate, Inc. v. Koons, 817 F.Supp. 370, 376 (S.D.N.Y.1993).
182. Defendants bear the burden of proof at trial on their counterclaim and affirmative defenses that the copyright rights in the Wilkins and Wontkins puppets were ultimately transferred to them. Fireman's Fund Ins. Co. v. Videfreeze Corp., 540 F.2d 1171, 1176 (3d Cir.1976), cert. denied, 429 U.S. 1053, 97 S.Ct. 767, 50 L.Ed.2d 770 (1977); Barker v. Goldberg, 705 F.Supp. 102, 104 (E.D.N.Y.1989).
183. Whether or not defendants can establish ownership of the copyrights in Wilkins and Wontkins by virtue of a valid transfer of the copyrights by the Hensons depends, essentially, on whether defendants have sustained their burden of proving that the mutual intention of the John H. Wilkins Company and the Hensons was to effect an irrevocable transfer of said copyrights to the John H. Wilkins Company. Gaste, 863 F.2d at 1064; Killiam Shows, Inc., 522 F.2d at 746 n. 7.
184. The purpose of U.S. copyright laws is to "promote" the production of creative works. U.S. Const., Art. I § 8, Cl. 8. It has long been recognized that in order to stimulate authorship and intellectual expression, authors must have the economic incentive of ownership rights. See Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 156, 95 S.Ct. 2040, 45 L.Ed.2d 84 (1975). In enacting the 1976 Copyright Act, Congress strengthened protections for authors and created a legislative framework designed to prevent unintended divestments of their rights. The Act reaffirms the principle that the "author" is "the fundamental beneficiary of copyright under the Constitution." H.R.Rep. No. 94-1476, 94th Cong.2d Sess. at 140 (1976) ("House Rep."). Thus, under both the 1909 and 1976 Copyright Acts, unless the author has given up his or her rights under copyright in a clear and unequivocal manner, he or she retains these rights. See Warner Bros. Pictures, Inc. v. Columbia Broadcasting System, 216 F.2d 945, 949 (9th Cir.1954) (quoting Philipp v. Jerome H. Remick & Co., 145 F.Supp. 756, 758 (S.D.N.Y.1956) ("The clearest language is necessary to divest the author of the fruits of his labor.")), cert. denied, 348 U.S. 971, 75 S.Ct. 532, 99 L.Ed. 756 (1955); S.O.S., Inc. v. Payday, Inc., 886 F.2d 1081, 1087-88 (9th Cir.1989); Cassway v. Chelsea Historic Properties, 1993 Copyright Law Decisions ¶ 27,071 at 27,264, 1993 WL 64633 (E.D.Pa.1993) Landon v. Twentieth Century-Fox Film Corp., 384 F.Supp. 450, 456 (S.D.N.Y.1974).
185. Documents, such as the September 16, 1958 Assignment, drafted by counsel for the assignee, the John H. Wilkins Company, should be construed against the drafter. Warner Bros. Pictures, 216 F.2d at 949; Cheever v. Academy Chicago, Ltd., 690 F.Supp. 281, 287 (S.D.N.Y.1988).
186. Any ambiguities or doubts concerning the scope of rights assigned by the Hensons, as authors of rights protected under copyright, pursuant to the September 16, 1958 Assignment must be construed in favor of the Hensons. See Warner Bros. Pictures, 216 F.2d at 949; Philipp, 145 F.Supp. at 758; S.O.S. Inc. v. Payday, Inc., 886 F.2d 1081, 1087-1088 (9th Cir.1989); Hirshon v. United Artists Corp., 243 F.2d 640, 644 n. 8 (D.C.Cir. 1957).
187. In light of the fact that the September 16, 1958 Assignment is not an integrated document, contains ambiguities, refers to other agreements pertaining to the subject matter thereof, and has no merger clause, and the fact that copyright assignments do not typically stand alone but are generally part of or subject to a larger agreement between the parties, I must determine whether the parties thereto intended to effect a perpetual assignment of all rights in the Wilkins and Wontkins puppets by weighing other evidence of their agreement, including the testimony of witnesses, other documentary evidence, the surrounding circumstances, the conduct of the parties and relevant customs and practices[6] along with *286 the September 16, 1958 Assignment. Bourne v. Walt Disney Co., 68 F.3d 621, 627-29 (2d Cir.1995), cert. denied, 517 U.S. 1240, 116 S.Ct. 1890, 135 L.Ed.2d 184 (1996); Killiam Shows, Inc., 522 F.2d at 746 n. 7; see also Goodis v. United Artists Television, Inc., 425 F.2d 397, 403 (2d Cir.1970) (taking into account relevant business practices and customs in determining whether assignment of rights to magazine publisher and subsequent publication divested original author of all rights in novel).
188. In the absence of a merger clause in the September 16, 1958 Assignment, it would be an abuse of my discretion not to weigh all the extrinsic evidence shedding light on the agreement between the Hensons and the John H. Wilkins Company. Bourne, 68 F.3d at 627.
189. The September 16, 1958 Assignment is only one piece of the overall agreement between the Hensons and the John H. Wilkins Company. Jim Henson Productions, 867 F.Supp. at 178. Where, as here, the documentary record of the agreement(s) between the contracting parties is incomplete, it is necessary to consider other evidence, including oral testimony, relevant documentation, conduct of the parties, surrounding circumstances and relevant customs and practices existing at the time to determine their intent. See, e.g., Killiam Shows, Inc., 522 F.2d at 746 n. 7; Lebanon Steel Foundry v. National Labor Relations Board, 130 F.2d 404, 407-08 (D.C.Cir.1942), cert. denied, 317 U.S. 659, 63 S.Ct. 58, 87 L.Ed. 530 (1942).
190. Documents bearing on the terms of the agreement(s) between the Hensons, Muppets Inc. and the John H. Wilkins Co., including, among others, the September 16, 1958 Assignment, should be read together in order to discern the intent of the Hensons and the John H. Wilkins Company. Bourne, 68 F.3d at 627-28; Nofziger Communications, Inc. v. Birks, 989 F.2d 1227, 1230-31 (D.C.Cir.1993); Gordon v. Vincent Youmans, Inc., 358 F.2d 261, 263 (2d Cir.1965).
191. Mr. Hefler's and Mrs. Henson's testimony as to the understanding and agreement between the Hensons and the John H. Wilkins Company concerning the Wilkins and Wontkins puppets and the rights relating thereto is the most compelling extrinsic evidence of the parties' intent. Bloom v. Hearst Entertainment Inc., 33 F.3d 518, 524 (5th Cir.1994); Murray v. Gadsden, 197 F.2d 194, 201-02 (D.C.Cir.1952); Peugh v. Davis, 96 U.S. 332, 336, 24 L.Ed. 775, 776 (1877).
192. The testimony of Mr. Hefler and Mrs. Henson, the weight of the documentary evidence, and the conduct of the parties establish that:
(a) During the late 1950s and early to mid-1960s, the John H. Wilkins Company entered into agreements with Jim Henson, Jane Henson and later their company, Muppets, Inc., for the purpose of engaging the services of Jim and Jane Henson, and later Muppets, Inc., to produce original television commercials promoting the coffee product of the John H. Wilkins Company, which commercials featured performances by the Hensons and of the puppets, Wilkins and Wontkins (the "Agreements");
(b) In entering into the Agreements, the parties never intended to, and did not, grant perpetual or unlimited rights to the John H. Wilkins Company to use the television commercials or the Wilkins and Wontkins puppets. Rather, the parties intended to grant to the John H. Wilkins Company only the right to use the television commercials featuring the Hensons' and Muppets, Inc.'s performances of the Wilkins and Wontkins puppets and to use likenesses of the Wilkins and Wontkins puppets for related promotional purposes in connection with the John H. Wilkins Company's continued broadcast of such commercials and in conjunction with the *287 continuation of the business relationship between the John H. Wilkins Company and Muppets, Inc., which assumed the creative involvement of Muppets, Inc. and Jane and/or Jim Henson. This business relationship ended in the early to mid-1960s, when Muppets, Inc. ceased producing television commercials for the John H. Wilkins Company;
(c) Further, the parties never intended by these Agreements to give the John H. Wilkins Company any rights, without the express consent of Muppets, Inc. or its successors in interest, to use the television commercials or to use the Wilkins and Wontkins puppets appearing in them, except for the purpose of promoting the coffee of the John H. Wilkins Company during the life of the advertising campaign for which such commercials were created and only in its trading area. This restriction constituted an integral part of the Agreements, which enabled Jim Henson, Jane Henson and Muppets, Inc. to protect and maintain their own artistic integrity and to control and preserve the value of their creations. Bloom, 33 F.3d at 524; Murray, 197 F.2d at 201-02 (D.C.Cir.1952); Peugh, 96 U.S. at 336.
193. Defendants are bound by the testimony of Mr. Hefler, President and CEO of the John H. Wilkins Company, defendants' purported predecessor. Fed.R.Evid. 801(d)(2)(B), Advisory Committee Note 1972; In re Columbia Securities Litigation, 155 F.R.D. 466, 478 (S.D.N.Y.1994); Burwell v. Crist, 373 F.2d 78, 80 (3d Cir.1967); General Finance, Inc. v. Stratford, 109 F.2d 843, 843-44 (App.D.C.1940); Sperber v. Washington Heights-West Harlem-Inwood Mental Health Council, Inc., No. 82 CIV 7428, Slip Op. at 4-8 (S.D.N.Y. Nov. 21, 1983), vacated and withdrawn on other grounds.
194. Deliberate informed acts of the Hensons and the John H. Wilkins Company and their successors subsequent to the entry by the Hensons and the John H. Wilkins Company into their Agreements and before any controversy arose as to the effect of the Agreements may be used in determining the meaning of the Agreements. Brooklyn Life Insurance Co. v. Dutcher, 95 U.S. 269, 273, 24 L.Ed. 410 (1877) ("There is no surer way to find out what parties meant, than to see what they have done."); Ocean Transport Line, Inc. v. American Philippine Fiber Industries, Inc., 743 F.2d 85, 91 (2d Cir.1984); Sanchez v. Maher, 560 F.2d 1105, 1108 (2d Cir.1977); Gordon v. Vincent Youmans, Inc., 358 F.2d 261, 264 (2d Cir.1965); Nationwide Auction Co. v. Lynn, 1996 WL 148489, at *7 (S.D.N.Y. April 1, 1996) ("It is well settled that the parties' actual course of performance is to be given great weight when interpreting an agreement."); Old Colony Trust Co. v. City of Omaha, 230 U.S. 100, 118, 33 S.Ct. 967, 972, 57 L.Ed. 1410 (1913) ("Generally speaking, the practical interpretation of a contract by the parties to it for any considerable period of time before it comes to be the subject of controversy is deemed of great, if not controlling, influence.").
195. The conduct of the parties subsequent to the assignment supports plaintiffs' copyright ownership claim. Viacom International, Inc. v. Lorimar Productions Inc., 486 F.Supp. 95, 98 n. 3 (S.D.N.Y.1980) (citing, inter alia, Old Colony Trust Co. v. Omaha, 230 U.S. 100, 33 S.Ct. 967, 57 L.Ed. 1410 (1913)); Accord, Klein v. Miles, 35 A.2d 243, 245 (1944) (quoting Brooklyn Life Insurance Co. v. Dutcher, 95 U.S. 269, 273, 24 L.Ed. 410 (1877)).
196. The following facts constitute additional evidence confirming that the John H. Wilkins Co. and the Hensons did not intend to transfer all rights in the Wilkins and Wontkins puppets:
(a) Defendants have failed to prove any payment to the Hensons consistent with a transfer of the copyright in the Wilkins and Wontkins puppets. Playboy Enterprises, Inc. v. Dumas, 831 F.Supp. 295, 305 n. 10 (S.D.N.Y.1993) (citing Geisel v. Poynter Products, Inc., 295 F.Supp. 331, 339 (S.D.N.Y.1968) (noting that "the price paid may be a circumstance probative of the scope of the rights purchased....")), modified on rehearing, 840 F.Supp. 256 (S.D.N.Y.1993), aff'd in part and rev'd in part, 53 F.3d 549 (2d Cir.), cert. denied, 516 U.S. 1010, 116 S.Ct. 567, 133 L.Ed.2d 491 (1995); accord Warner Bros. Pictures, 216 F.2d at 949.
*288 (b) Artists including Jim Henson did not customarily relinquish all rights in their characters. Warner Bros. Pictures, Inc. v. Columbia Broadcasting System, 216 F.2d at 949.
(c) The Hensons did not relinquish physical possession of the Wilkins and Wontkins puppets to the John H. Wilkins Company. Cf. Chamberlain v. Feldman, 300 N.Y. 135, 89 N.E.2d 863 (1949); Pushman v. New York Graphic Society, 287 N.Y. 302, 39 N.E.2d 249 (1942).
197. Under the 1909 Copyright Act, which was in effect in 1958, copyrights were "indivisible," meaning that the bundle of rights that accrued to a copyright owner could only be assigned as a whole, and the transfer of anything less than all rights was deemed a license rather than an assignment. See generally 3 Nimmer, § 10.01 at 10-5 to 10-19; A.L. Kaminstein, Study No. 11, Divisibility of Copyrights (1957) in 1 Studies on Copyright 623 (1963); Goodis v. United Artists Television, Inc., 425 F.2d 397, 400 (2d Cir.1970) (stating that the distinction between a licensee and an assignee "rests on the doctrine of `indivisibility of copyright,' which rejects partial assignments of copyright and requires a proprietor or assignee of a copyright to hold nothing less than all the rights in a copyrighted work"); Morse v. Fields, 127 F.Supp. 63 (S.D.N.Y.1954). The indivisibility doctrine had considerable impact on the enforcement of copyrights against third party infringers because a licensee, unlike an assignee of all rights under copyright, generally lacked standing to sue for infringement. New Fiction Pub. Co., 220 F. at 996 ("Less than an assignment of the entire copyright cannot carry the causes of action (if the right is invaded) which the act accords to the owner or assignee.") (citing Mr. Bowker in Copyright, Its History and Its Law 49 (1912)));[7]Goldwyn Pictures Corp. v. Howells Sales Co., 282 F. 9, 11 (2d Cir.1922) (noting that "the inability of a licensee to sue for an infringement is no longer an arguable question" (citing Walker on Patents § 400). Further, a licensee generally could not use its own name in a copyright notice or obtain a copyright registration. See Goodis, 425 at 400; Hirshon v. United Artists Corp., 243 F.2d 640, 643 (D.C.Cir.1957); Group Publishers, Inc. v. Winchell, 86 F.Supp. 573, 576-77 (S.D.N.Y.1949); Morse, 127 F.Supp. at 64 (citing American Tobacco Co. v. Werckmeister, 207 U.S. 284, 296, 28 S.Ct. 72, 52 L.Ed. 208 (1907)); 1 Nimmer, § 5.01[B] at 5-6.1.
198. Under the 1909 Copyright Act, an author could retain beneficial ownership of a copyright he had ostensibly transferred to another. See, e.g., Bisel v. Ladner, 1 F.2d 436 (3d Cir.1924); April Productions, Inc. v. G. Schirmer, Inc., 308 N.Y. 366, 375, 126 N.E.2d 283 (1955); 3 Nimmer, § 10.01[B] at 10-11.
199. It may be presumed that the Hensons and the John H. Wilkins Company, or the attorneys preparing legal documents pertaining to their agreements, had constructive knowledge of the problems and practices arising out of or relating to the indivisibility doctrine under the 1909 Copyright Act. See, e.g., United States Naval Institute v. Charter Communications, 875 F.2d 1044, 1049 (2d Cir.1989) Warner Bros. Pictures, 216 F.2d at 949. See generally 3 Nimmer, § 10.01 at 10-5 to 10-22; A.L. Kaminstein, Study No. 11, Divisibility of Copyrights (1957) in 1 Studies on Copyright 623 (1963). See also Section F, ¶¶ 59-117 above; Cox v. District of Columbia, 821 F.Supp. 1, 18 (D.D.C.1993), aff'd, 40 F.3d 475, 1994 WL 609522 (D.C.Cir.1994); 21A Am.Jur.2d, Customs And Usages § 41 at 770 (1981 & Supp.1994); A.L. Corbin, 3 Corbin On Contracts, § 557 (1960); Skandia America Reinsurance Corp. v. Schenck, 441 F.Supp. 715, 724 (S.D.N.Y.1977).
200. Plaintiffs' expert witnesses are competent to testify in their respective areas set forth in the facts above. F.R.E. Rule 702.
201. Defendants have failed to sustain their burden of proving that the September *289 16, 1958 Assignment divested the Hensons of their copyrights in the Wilkins and Wontkins puppets. Warner Bros. Pictures, 216 F.2d at 949; Killiam Shows, Inc., 522 F.2d at 746 n. 7; Freudenthal v. Hebrew Publishing Co., 44 F.Supp. 754, 755 (S.D.N.Y.1942).
202. Defendants have failed to sustain their burden of proving copyright ownership where their only proof of a transfer is the September 16, 1958 short form assignment document prepared by defendants' predecessor's counsel and recorded in the Copyright Office, because the overwhelming weight of the evidence namely, the testimony of witnesses with first-hand knowledge (in particular the testimony of Roger Hefler), other documentary evidence, the conduct of the parties, and relevant customs does not indicate that the parties intended to convey rights beyond the duration of the John H. Wilkins Company's advertising campaign. Gaste, 863 F.2d at 1064; Compton v. Atwell, 207 F.2d 139, 140 (D.C.Cir.1953); Broadcast Music, Inc. v. Taylor, 10 Misc.2d 9, 55 N.Y.S.2d 94, 102-04 (N.Y.Sup.Ct.1945); see also Central Hanover B. & T. Co. v. Commissioner of Int. Rev., 159 F.2d 167, 169 (2d Cir.) (L.Hand, J.), cert. denied, 331 U.S. 836, 67 S.Ct. 1518, 91 L.Ed. 1848 (1947) ("There is no more likely way to misapprehend the meaning of language be it in a constitution, a statute, a will or a contract than to read the words literally, forgetting the object which the document as a whole is meant to secure."); Murray v. Gadsden, 197 F.2d 194, 201-02 (D.C.Cir.1952).
203. The recordation of the September 16, 1958 Assignment in the U.S. Copyright Office has no legal force or effect as a matter of law. 17 U.S.C. § 205(c); 1909 Copyright Act, 17 U.S.C. §§ 28, 30; Lottie Joplin Thomas Trust v. Crown Publishers, Inc., 456 F.Supp. 531, 536 (S.D.N.Y.1977) (citing Epoch Producing Corp. v. Killiam Shows, Inc. 522 F.2d 737 (2d Cir.1975), cert. denied, 424 U.S. 955, 96 S.Ct. 1429, 47 L.Ed.2d 360 (1976) and Rose v. Bourne, Inc., 176 F.Supp. 605, 610 (S.D.N.Y.1959) (execution and recording of a copyright assignment does not create a legal ownership in the publications that did not already exist)), aff'd, 592 F.2d 651, 655 (2d Cir.1978); Pantone, Inc. v. A.I. Friedman, Inc., 294 F.Supp. 545, 551-52 (S.D.N.Y.1968).
204. A payment of royalties is as consistent with a license as it is with an assignment, and thus does not in itself imply an assignment. 3 Nimmer, § 10.03[B] at 10-42 n. 33; Ilyin v. Avon Publications, Inc., 144 F.Supp. 368 (S.D.N.Y.1956). Accordingly, the fact that the Hensons paid the John H. Wilkins Company a fee in connection with the commercials featuring performances of the Wilkins and Wontkins puppets that the Hensons made for other advertisers does not prove that an assignment was effected in this case.
205. Even assuming that defendants have sustained their burden of proving that copyright rights in certain individual television commercials and/or the Wilkins and Wontkins premiums were assigned by the Hensons to the John H. Wilkins Company pursuant to the September 16, 1958 Assignment, defendants have failed to meet their burden of proving that the Hensons assigned any other copyright rights in the Wilkins and Wontkins puppets to the John H. Wilkins Company. Gaste, 863 F.2d at 1064; Warner Bros. Pictures, 216 F.2d at 949; Blendingwell Music, Inc., 612 F.Supp. at 480; Compton, 207 F.2d at 140; Broadcast Music, Inc. v. Taylor, 10 Misc.2d 9, 55 N.Y.S.2d 94, 102-04 (N.Y.Sup.Ct.1945); Murray, 197 F.2d at 201-02.
206. Even if defendants have sustained their burden of proving that the September 16, 1958 Assignment did effect a transfer of copyright ownership in the Wilkins and Wontkins puppets, the transfer was still subject to the limitations of the parties' agreement that the puppets could only be performed by the Hensons and used by the John H. Wilkins Company for its advertising campaign in the Washington, D.C. area to sell its coffee to the retail trade, and defendants are bound by said limitations. S.O.S., Inc., 886 F.2d at 1087-1088; Love v. Kwitny, 706 F.Supp. 1123, 1131 (S.D.N.Y.1989) (the burden rests with defendant to prove that defendant did not exceed the scope of the assignment); McCord v. Broadcast Music, Inc., 89 N.Y.S.2d 772, 774 (N.Y.Sup.Ct.1949).
207. Even assuming that defendants have sustained their burden of proving that copyright *290 rights in the Wilkins and Wontkins puppets were assigned by the Hensons to the John H. Wilkins Company pursuant to the September 16, 1958 Assignment, all such rights were reconveyed to the Hensons by the John H. Wilkins Company orally, by conduct, or pursuant to a letter agreement dated June 8, 1961. See, e.g., Clark v. Clark, 535 A.2d 872, 876 (D.C.1987); 3 Nimmer, § 10.03[B][1] at 10-43-44; Law v. National Broadcasting Co., 51 F.Supp. 798 (S.D.N.Y. 1943). Further, by virtue of the agreement of the parties that the rights granted to the John H. Wilkins Company would revert to the Hensons after the duration of the ad campaign, those rights reverted automatically upon termination of the campaign. Bourne, 68 F.3d at 627-28; Bisel, 1 F.2d at 436; Murray, 197 F.2d at 201; Clark, 535 A.2d at 875; 3 Nimmer, § 10.03[B][1] at 10-43-44.
CONCLUSION
Based on the above and the record and proceedings in this action, plaintiffs are entitled to judgment against defendants on plaintiffs' claim for relief.
Plaintiff shall submit a form of judgment on two days notice.
SO ORDERED.
NOTES
[1] A total of roughly 40 fact witnesses have been deposed in this lawsuit, including all available persons who have been identified by the parties or witnesses as the persons most knowledgeable on the issues pertaining to this matter. Included among the persons who have been deposed are Jane Henson, Jerry Juhl, Frank Oz, Peter Schube, officers of the John H. Wilkins Company, and the buyers and sellers in each of the above transactions, as follows:
(a) With respect to the John H. Wilkins Company, Roger H. Hefler (Videotaped deposition of Roger H. Hefler ("Hefler") sworn to on May 13, 1993 at 5-6), the Executive Vice President, President and ultimately Chief Executive Officer and Chairman of the Board of the John H. Wilkins Company, who was responsible for running its day-to-day operations from the late 1950s until 1973. (Pl.Ex. 49 (¶¶ 14, 22); Pl.Ex. 42 (M001325)); E. William Furey, the John H. Wilkins Company's former general counsel and its current President and sole shareholder. (Deposition of E. William Furey ("Furey") sworn to on April 29, 1993 at 11 and 57-58);
(b) Helen Ver Standig, the only surviving employee of the Belmont Ver Standig advertising agency which, as discussed below in paragraphs 35 and 47, was the John H. Wilkins Company's advertising agency during the 1950s until roughly November 31, 1960 and which played a role with respect to the relationship between the Hensons and the John H. Wilkins Company. (Pl. Exs.24G, 25(F); Deposition of Helen Ver Standig ("Ver Standig") sworn to on May 3, 1993 at 10-13, 19, 21; Hefler 44-45);
(c) With respect to the 1974 Asset Purchase Agreement, as previously mentioned, E. William Furey, the lawyer who was the principal negotiator for the John H. Wilkins Company (Furey at 7-9, 47, 145); William H. Ashplant, the President, Chief Executive Officer and Chairman of Halco and later Tobin Packing Company ("Tobin"), who has been identified as the most knowledgeable person connected with Halco with respect to the terms and nature of the transaction between Halco and the John H. Wilkins Company and who was also responsible for running the day-to-day operations of Halco and Tobin (Deposition of William Ashplant ("Ashplant") sworn to on June 3, 1993 at 7, 13, 14, 22; Furey at 145-46; Deposition of Robert Hatch sworn to on May 27, 1993 ("Hatch II") at 35-37, 45-46, 51, 56-57; Pl.Ex. 49 (¶ 32));
(d) With respect to the 1981 Asset Purchase Agreement, Robert N. Hatch, the former President of the Wilkins Corporation and Wilkins Service Inc., E. Lee Winegar, also the former President of Wilkins Service and treasurer and secretary thereof, as well as Mr. Ashplant, as previously noted (Winegar 44-45; Deposition of Robert Hatch sworn to on November 5, 1992 ("Hatch I") 10-12, Hatch II 37, 70; Deposition of Robert Hatch sworn to on May 31, 1995 ("Hatch III") 11-12). Mr. Hatch was the President and Chief Executive Officer of Wilkins Coffee, Inc., a position he assumed in January, 1993, until roughly the Spring of 1996. Mr. Hatch was deposed as a third-party witness on November 5, 1992, and on May 31, 1995. He was designated by defendant Coffee Associates, Inc. (then known as Wilkins Coffee, Inc.), pursuant to Rule 30(b)(6) of the Federal Rules of Civil Procedure, as the person most knowledgeable about the chain of title from the John H. Wilkins Company to Wilkins Coffee, Inc. with respect to the Wilkins and Wontkins characters and he appeared for a deposition on that subject on May 27, 1993. He also was designated by defendant Coffee Associates, Inc., pursuant to Rule 30(b)(6) of the Federal Rules of Civil Procedure, as the person most knowledgeable about the Asset Purchase and Sale Agreement between Wilkins Coffee, Inc. and Royal Cup, Inc. and he appeared for deposition on December 6, 1996. (Hatch I at 10); Hatch II at 6, 10; Hatch III at 4; Deposition of Robert Hatch sworn to on December 6, 1996 ("Hatch IV") at 5; (Ashplant at 56).
[2] Citations in the form "Trial Tr. ___, ___" refer to pages in the Trial Transcript and identify the witnesses who so testified.
[3] Mr. Perle's qualifications are set out in Playboy Enterprises, Inc. v. Dumas, 831 F.Supp. 295, 304 (S.D.N.Y.1993).
[4] These three constraints were of prime concern among copyright lawyers during the general revision of the 1909 Copyright Act which began in 1955 and culminated in the enactment of the Copyright Act of 1976, which became effective on January 1, 1978. All three were eliminated or substantially changed by the 1976 revision: common law protection was abolished for all works created after January 1, 1978; improper copyright notices could be cured; and the owner of any particular exclusive right under copyright became a copyright proprietor with the ability itself to defend and enforce that right. (Trial Tr. 161-62, Olsson; Trial Tr. 254-55, Perle). Messrs. Perle and Olsson were members of the Committee charged with revision of the copyright laws.
[5] The "booklet" has been identified as Exhibit 32 at the May 27, 1993 deposition of Robert Hatch and as Exhibit 13 at the June 8, 1993 deposition of William Furey.
[6] I find the customs and practices of the copyright bar and the television and commercial industry during the 1950s and 1960s particularly important because of the apparent inability of statutory copyright law at least during this period to keep pace with the increasing commercial exploitation of copyright rights. See New Fiction Pub. Co. v. Star Co., 220 F. 994, 996 (1915) (commenting as early as 1915 on the increased commercial exploitation of copyrighted works and noting that "[t]he motion picture scenario, the daily short story in the newspaper, the growing vogue of the concise one-act play ... have all been developments towards specialization, which doubtless render particular rights of increasing importance....").
[7] The doctrine of the indivisibility of copyright pertains "primarily to the requisite interest needed to bring an infringement action." Goodis, 425 F.2d at 400. Affording standing to the registered copyright proprietor alone avoids the problematic situation whereby any and every licensee of the copyright owner may obtain a separate judgment against an infringing defendant "for one and the same violation of a copyright which no one of them owned, but in respect of which each had only certain special or limited rights." New Fiction Pub. Co., 220 F. at 996.
| {
"pile_set_name": "FreeLaw"
} |
226 Ga. 254 (1970)
174 S.E.2d 408
HOLDER
v.
HOLDER, now Powell.
25668.
Supreme Court of Georgia.
Argued March 11, 1970.
Decided April 9, 1970.
Charles D. Wheeler, for appellant.
GRICE, Justice.
The controlling issue on this appeal is whether an agreement between a former husband and wife is in restraint of marriage and therefore void as against public policy.
Hiram S. Holder, the former husband, filed an application for attachment for contempt in the Superior Court of DeKalb County against the former wife, Cynthia Curtis Holder Powell, alleging that an agreement between them was made a part of their final decree of divorce and that the decree ordered them "to abide by the terms" of the agreement. He further alleged that one of the provisions of such agreement was that the wife should have the custody of their two minor children but that in the event she should remarry or leave the State of Georgia, then he should have such custody; that the former wife has remarried; that he has made demand upon her to comply with the divorce decree and give over custody of the children to him but she fails and refuses to do so; and that such failure and refusal constitutes a deliberate and intentional violation of such decree and a contempt of the court.
*255 The former wife answered, admitting the agreement and decree, her remarriage, his demand for custody and her refusal, and denying that her refusal to surrender custody was a violation of the decree or constituted contempt. She alleged that the agreement is illegal in that it is in restraint of marriage, and that there has been no material change of condition since the date of the final decree which would affect the health, education or welfare of the children to their detriment.
After a hearing, the trial court denied the application, stating that the former wife's failure to comply with the decree was not a ground for contempt, as the law provides that the only way the court can change custody of minor children after a final judgment and decree fixing it is by the showing of a material change of circumstances substantially affecting the welfare and best interests of the children.
In our view, the former husband's appeal from this judgment is meritorious.
1. The agreement for custody of the children to change to the father upon remarriage of the mother is not void as being in restraint of marriage. What was said by this court in Logan v. Hammond, 155 Ga. 514 (2) (117 SE 428), is applicable here: "Though contracts in restraint of marriage are void, the intention to impose a penalty for remarriage must be manifest and exclusive. The creation of a fee defeasible by marriage is not necessarily in restraint of marriage, because the beneficiary is submitted to an election between the acceptance of the gift and remarriage, should she prefer to remarry." That opinion pointed out that by express provision of the Code (present Code § 85-712), limitations over upon the remarriage of the widow are valid "unless they are manifestly intended to operate as a restraint upon her free action in respect to marriage," and that this "makes it incumbent upon him who in any case contends that the provisions of a will are in restraint of marriage to show that it was the manifest intention of the testator." P. 519. This rule applies to contracts as well as to provisions of a will.
We do not know what reasons the parties had for entering into the agreement here. Apparently this was not inquired into upon the hearing. There is no transcript of evidence with *256 the record. It is likely that there was a valid basis for the arrangement agreed upon. In any case, it does not appear that it was the "manifest intention" of the parties that the agreement operate as a restraint upon the wife's remarriage. Rather, she had the election whether to remarry or to retain custody of the children. She elected to remarry, and thereupon her right to custody under the agreement and decree ceased. See Tanner v. Tanner, 221 Ga. 406 (144 SE2d 740); Hunnicutt v. Sandison, 223 Ga. 301, 303 (154 SE2d 587).
2. Since the judgment in the divorce action ordered compliance with the provisions of the agreement of the parties, it was a proper basis for contempt proceedings for refusal of the former wife to surrender custody of the children to the former husband. Neese v. Nance, 223 Ga. 315 (154 SE2d 442) (one Justice dissenting).
3. The issue of change of circumstances is not involved here. Appellant sought by his application for attachment for contempt to enforce the prior judgment fixing custody, not to modify that judgment upon the ground of a change of circumstances or any other ground.
For the reasons stated, the judgment is
Reversed. All the Justices concur.
| {
"pile_set_name": "FreeLaw"
} |
151 P.3d 960 (2007)
210 Or. App. 467
HOLLOWAY
v.
CLATSOP COUNTY.
Court of Appeals of Oregon
January 10, 2007.
Case affirmed without opinion.
| {
"pile_set_name": "FreeLaw"
} |
33 Ill. App.3d 232 (1975)
338 N.E.2d 113
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee,
v.
CARL TIDWELL, Defendant-Appellant.
No. 60531.
Illinois Appellate Court First District (2nd Division).
October 21, 1975.
*233 James J. Doherty, Public Defender, of Chicago (Aaron Meyers and Ira Churgin, Assistant Public Defenders, of counsel), for appellant.
Bernard Carey, State's Attorney, of Chicago (Laurence J. Bolon, Donald M. Devlin, and Robert Handelsman, Assistant State's Attorneys, of counsel), for the People.
Judgment affirmed.
Mr. JUSTICE LEIGHTON delivered the opinion of the court:
This was a prosecution by a complaint which charged the defendant, Carl Tidwell, with criminal damage to property in violation of section *234 21-1(a) of the Criminal Code (Ill. Rev. Stat. 1973, ch. 38, par. 21-1 (a)).[1] After a nonjury trial, he was found guilty and the court sentenced him to one-year probation, subject to the condition that, through the probation department, he pay the complaining witness $200 for restitution of damages.
In this appeal, defendant presents five issues. 1. Whether a complaint that did not state the amount of the alleged criminal damage adequately advised him of the nature and elements of the offenses so he could prepare his defense. 2. Whether he could be prosecuted by a complaint when the court found he had damaged the complaining witness' property in an amount that made his conduct felonious and thus prosecutable only by an indictment. 3. Whether, in open court, he knowingly and understandingly waived trial by jury. 4. Whether the trial court erred and abused its discretion by its order directing defendant, as a condition of his probation, to pay $200 in restitution, without criminal damage in that amount being proved by competent evidence, and when uncontroverted proof disclosed that defendant did not have funds to pay restitution. 5. Whether the trial court made an impermissible delegation of its duties when it ordered defendant, as a condition of his probation, to pay $200 restitution but left to the probation department the power to decide how the payment was to be made. These issues arise from the following facts.
On April 2, 1974, in the municipal division of the circuit court of Cook County, a misdemeanor complaint was filed alleging "that Carl Tidwell has, on or about 16 Dec 73 at 3034 West 38th Pl committed the offense of damage to property in that he knowingly and wilfully without proper authority caused damage to 1966 Rambler to wit: breaking windshield, left side front window and headlights the property of Annie Lou Warren [sic]." It is the wording of this complaint, the lack of any allegation concerning the money amount of the alleged criminal damage, the defendant points to in raising the first issue presented for our review. He argues that the absence of any information concerning the extent of the alleged criminal damage precluded him "* * * from knowing whether he was being tried as a potential misdemeanant, or a potential felon, and, without this knowledge, his defense could not adequately be prepared."
1 We reject this argument. Our statute on criminal damage to property does not make amount of the damage an element of the offense. The *235 amount of the damage is material only in determining whether the crime is a misdemeanor or a felony. (See Ill. Rev. Stat. 1973, ch. 38, par. 21-1(a).) Accordingly, it has been held that where a defendant is found guilty of a misdemeanor criminal damage to property; that is, damage of less than $150, proof of the exact monetary amount is not required. (People v. Vesley, 86 Ill. App.2d 283, 229 N.E.2d 886.) We believe it illogical to argue that a misdemeanor complaint charging criminal damage to property without an allegation of the money amount of damages precludes a defendant from knowing whether he is being tried as a potential misdemeanant or a potential felon. Felonies, in this State, can be prosecuted only by indictment, unless that procedure is understandingly waived by the accused in open court, expressly concurred in by the State. (See Ill. Rev. Stat. 1973, ch. 38, par. 111-2(a).) Plainly, then, where, as in a case like this one, a defendant is prosecuted by a complaint, it should be clear to him, as it is clear to everyone else, that he is not being tried as a potential felon. The legal sufficiency of a complaint is determined by section 111-3 of the Code of Criminal Procedure (Ill. Rev. Stat. 1973, ch. 38, par. 111-3). This provision does not require that a misdemeanor complaint for criminal damage to property contain allegations concerning the amount of the damage. Consequently, we conclude that the complaint by which defendant was tried adequately advised him of the nature and elements of the offense so he could prepare his defense.
The record shows that proceeding on this complaint, and after hearing evidence, the court found defendant guilty, placed him on probation but required him to pay $200 for restitution of damages. Pointing to this amount, and concluding that this was the amount of criminal damage the court found he had committed on the complaining witness' property, defendant argues that he could not be prosecuted by complaint because the statute under which he was prosecuted provides that when knowing damage to the property of another exceeds $150, the offense is a Class 4 felony. Therefore, defendant argues, the only procedure by which he could be tried was by an indictment.
2 This, in our judgment, is a highly sophisticated argument. The ready answer to it, from our point of view, is that a defendant should never be heard to complain that he was charged with and found guilty of a misdemeanor when the evidence proved he had committed a felony. (Compare People v. McVet, 7 Ill. App.3d 381, 287 N.E.2d 479.) Moreover, the paragraph of the criminal code under which defendant was prosecuted provides that any act by which a defendant knowingly damages the property of another without the owner's consent is a Class A misdemeanor. (See Ill. Rev. Stat. 1973, ch. 38, par. 21-1(a).) Section 111-1 of the Code of Criminal Procedure provides that, when authorized *236 by law, prosecution of a criminal offense may be commenced by a complaint. (Ill. Rev. Stat. 1973, ch. 38, par. 111-1(a).) Misdemeanors are criminal offenses prosecuted by complaints. (See People v. Williams, 37 Ill.2d 521, 229 N.E.2d 495; People v. Mikota, 1 Ill. App.3d 114, 273 N.E. 2d 618.) Therefore, it follows that defendant could be prosecuted on the complaint by which he was charged even though the trial court found that the amount of damage he committed on the complaining witness' property made the conduct felonious. This brings us to defendant's trial and the issue he raises concerning his waiver of trial by jury.
We notice from the record that he was arrested on December 16, 1973; and on the next day, represented by privately retained counsel, he was granted a bail hearing. The case was continued for trial to February 4, 1974, and that day continued to April 2. When defendant appeared for trial, the same counsel, after identifying himself to the court and stating for the record that defendant was present, said that they were ready for trial and that trial by jury was going to be waived. Defendant did not express himself; he did not object to his counsel's representations concerning the jury waiver; in fact, he said nothing. Nonetheless, he now argues that he did not knowingly and understandingly waive his right to a jury trial because it does not appear that his counsel consulted with him; but it does appear that he lacked funds with which to employ another lawyer had he objected to the representations that were made on his behalf. In this way, defendant distinguishes People v. Sailor, 43 Ill.2d 256, 253 N.E.2d 397.
3 We appreciate the subtlety of this argument; but we are constrained to disagree because recently, in People v. Murrell, 60 Ill.2d 287, 290, 326 N.E.2d 762, the supreme court reasserted the rule of Sailor, holding that "[a] defendant who permits his attorney, in his presence and without objection, to waive his right to a jury trial is deemed to have acquiesced in, and is bound by, his attorney's action." In this case, the principle has particular application because before he went to trial, defendant was represented by privately retained counsel for nearly four months, during which he appeared in court three times. Therefore, this is not an instance in which counsel was appointed for an indigent defendant on the day of trial, and the record discloses a lack of opportunity for consultation and advice concerning the right to trial by jury. (Compare People v. Baker, 126 Ill. App.2d 1, 262 N.E.2d 7.) Accordingly, we conclude that defendant knowingly and understandingly waived trial by jury when he remained silent while his lawyer told the court he was foregoing this important constitutional right. See People v. Novotny, 41 Ill.2d 401, 244 N.E.2d 182; People v. Durham, 23 Ill. App.3d 737, 320 N.E.2d 144.
As a consequence, the trial proceeded without a jury. And concerning *237 the dollar amount of the damage to the 1966 Rambler, the only witness who testified was its owner, Annie Lou Warren. She told the court that after her return home to Dover, Illinois, she had the automobile repaired for a total cost of $209. She was not asked for, nor did she produce, a receipt showing the claimed payments on the repairs. She did not produce any evidence to corroborate or substantiate what she said concerning the extent to which her automobile was damaged. From this fact, defendant questions whether the money amount of the criminal damage was proved by competent evidence. He buttresses this question with the fact that, in one court appearance, Ms. Warren quoted a repairman as having said that her automobile was damaged beyond repair. Thus, defendant argues that on the evidence, the trial court erred in finding $200 in damages to Ms. Warren's automobile.
4 This argument overlooks the nature of the proceedings in which the trial court made its finding. The case below was not a suit to recover damages to personal property. (See Lucas v. Bowman Dairy Co., 50 Ill. App.2d 413, 200 N.E.2d 374.) It was a misdemeanor prosecution in which the State did not have to prove any monetary damage to the property in question. (See People v. Vesley, 86 Ill. App.2d 283, 229 N.E.2d 886.) The question of damages related only to the court's exercise of its power to place defendant on probation. (See Annots., 56 A.L.R. 3d 932 (1974); 97 A.L.R. 2d 798 (1964).) And in such a proceeding, it is generally said that strict rules of evidence do not apply. (People v. Obermoeller, 1 Ill. App.3d 890, 275 N.E.2d 459 (abstract opinion).) What the judge should hear or have presented for his consideration in such a proceeding is subject to the parameter of reasonableness; not technical rules of evidence. (Compare People v. Schleyhahn, 4 Ill. App.3d 591, 281 N.E.2d 409.) Of course, in proceedings such as this a defendant is free to cross-examine witnesses and contradict them with other evidence. In this case, defendant did not contradict the complaining witness.
Generally, if damage to personal property is repairable, the measure of damages is the reasonable cost of the repairs, plus the difference in value, if the value after repairs is less than the value before the damage. (Kroch's & Brentano's, Inc. v. Barber-Colman Co., 16 Ill. App.3d 412, 306 N.E.2d 522.) And as to proof of payment for such repairs, what one actually pays is, in the absence of anything to indicate bad faith, admissible to show payment and the reasonableness of the cost. (See Travis v. Pierson, 43 Ill. App. 579; compare Harrington v. Kelly, 57 Ill. App.2d 262, 205 N.E.2d 652.) Ms. Warren, without contradiction, testified to the amount she paid to repair her automobile and no one asked her for substantiation of her testimony. She was not contradicted by defendant, nor by any other evidence in the record. (See Little v. People, 157 Ill. 153, 42 *238 N.E. 389.) Therefore, criminal damage to property in the amount of $200 was proved by competent evidence.
It was this amount, as restitution, that the trial court ordered defendant to pay the complaining witness as a condition of his probation. However, the record shows that when defendant testified in his defense and in mitigation of the offense, he told the court that he was married and lived with his wife and three children; that he was a dock worker but was ill and had been unemployed for more than a month. Without contradiction, he testified that he was not receiving unemployment compensation, and was without any source of income. When the trial court announced it was going to condition the one-year probation with a payment of $200 in restitution, defendant's counsel objected on the ground that the money could not be paid. The trial court rejected the objection and ordered defendant to pay the restitution. In this court, he raises the issue whether ordering him to pay restitution when the record showed he had no funds was an abuse of the trial court's discretion.
5 Unlike statutes that have been adopted in other jurisdictions, the provisions of our criminal code do not require that restitution or reparation be predicated on the prospective probationer's ability to pay. (Compare N.Y. Penal Law § 65.10(2)(f) (McKinney 1967); 28 Vt. St. Ann. § 252(b)(5) (1970), as amended (Cum. Supp. 1974); see People v. Lofton (1974), 78 Misc.2d 202, 356 N.Y.S. 2d 791; State v. Benoit (1973), 131 Vt. 631, 313 A.2d 387; State v. Godfrey (1973), 131 Vt. 629, 313 A.2d 390.) Our criminal code provides only that in granting probation the court may, in addition to other conditions, require that the person make restitution or reparation in an amount not to exceed the actual pecuniary loss or damage to the property in question. (See Ill. Rev. Stat. 1973, ch. 38, par. 1005-6-3(b)(10).) Implicit in this grant of statutory power is the requirement that its exercise, when probation conditions are imposed, be reasonable and just. See People v. Mahle, 57 Ill.2d 279, 312 N.E.2d 267; compare People v. Holzapple, 9 Ill.2d 22, 136 N.E.2d 793; People v. Prell, 299 Ill. App. 130, 19 N.E.2d 637; People v. Dawes, 132 Ill. App.2d 435, 270 N.E.2d 214.
When viewed against these provisions, a probation order conditioned on the payment of money as restitution or reparation by a defendant whom the record shows is ill, unemployed and without funds, is not unreasonable. Conceivably, during the term of his probation, the defendant's health, employment and finances may improve. However, it is now settled that a probation order cannot be revoked if the only claim of violation is the probationer's failure to pay money he does not have. (See People v. Boucher, 57 Ill.2d 225, 311 N.E.2d 679; People v. Baumgarten, 13 Ill. App.3d 189, *239 300 N.E.2d 561; Ill. Rev. Stat. 1973, ch. 38, par. 1005-6-4 (d).) Therefore, we conclude that, in this case, conditioning defendant's one-year probation with the requirement that he pay $200 to the complaining witness as restitution was not an abuse of discretion.
6 As to the issue whether the trial court made an impermissible delegation of its duties in connection with the payment of restitution, we have examined the record and conclude that defendant's argument in this connection is without merit. We observe that the trial court, after ordering restitution, directed that the payments be at least $20 each month so that the entire sum would be paid within the probation period. This was not an improper delegation of judicial duty. (See People v. James, 25 Ill. App.3d 533, 323 N.E.2d 424 (abstract opinion).) For these reasons, the judgment is affirmed.
Affirmed.
DOWNING, P.J., and STAMOS, J., concur.
NOTES
[1] This statute provides that "[a]ny of the following acts shall be a Class A misdemeanor and any act [that knowingly damages the property of another without his consent] * * * when the damage to property exceeds $150 shall be a Class 4 felony * * *."
| {
"pile_set_name": "FreeLaw"
} |
725 F.2d 670
Toner (Richard J.)v.Hazel (Frank T.), Keller (Robert C.), Rapone (Thomas), Matty (Kenneth)
NO. 82-1663
United States Court of Appeals,Third circuit.
DEC 01, 1983
Appeal From: E.D.Pa.,
Hannum, J.
1
AFFIRMED.
| {
"pile_set_name": "FreeLaw"
} |
Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
10-12-2006
USA v. Nesgoda
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-4798
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2006
Recommended Citation
"USA v. Nesgoda" (2006). 2006 Decisions. Paper 334.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/334
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2006 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 05-4798
UNITED STATES OF AMERICA
v.
EDWARD NESGODA,
Appellant
On Appeal from the United States District Court
for the Middle District of Pennsylvania
District Court No. 03-cr-00019
District Judge: Sylvia H. Rambo
ORDER AMENDING OPINION
It has come to the Clerk’s attention that the opinion filed on October 10, 2006 in
this case incorrectly identified the originating court as the United States District Court for
the District of New Jersey. At the direction of the Court, the opinion is amended to
correctly identify the originating court as the United States District Court for the Middle
District of Pennsylvania.
For the Court,
/s/ Marcia M. Waldron
Clerk
Dated: October 12, 2006
CMH/cc: FWU, CHF
| {
"pile_set_name": "FreeLaw"
} |
54 So.2d 777 (1951)
LEWIS et al.
v.
RAILROAD RETIREMENT BOARD.
6 Div. 234.
Supreme Court of Alabama.
October 4, 1951.
Rehearing Denied November 23, 1951.
*778 Jackson, Rives & Pettus, Birmingham, for appellants.
John D. Hill, U. S. Atty., and L. Drew Redden, Asst. U. S. Atty., Birmingham, for appellee.
STAKELY, Justice.
This is an interpleader suit in equity in which the lower court entered a final decree awarding the fund in controversy of $1,213.25, which had been paid into the registry of the court, to the claimant, respondent Railroad Retirement Board, and denying in whole or in part to the claimant, complainant David D. Lewis and the intervening law firm of Jackson, Rives & Pettus, any right to such fund. The claimant, complainant David D. Lewis, and the intervenors Jackson, Rives & Pettus have appealed to this court from the decree. The Railroad Retirement Board is an independent agency in the executive branch of the Government of the United States. 45 U.S. C.A. § 228j.
The complainant was injured on or about February 25, 1948. Complainant filed his application for sickness benefits under the Railroad Unemployment Insurance Act, 45 U.S.C.A. § 351 et seq., with the Regional Office of the Railroad Retirement Board on March 3, 1948. The Railroad Retirement Board began payments under the provisions of the act to the complainant on account of this injury on February 25, 1948, the day following the injury. These payments continued with a brief interruption provided by the act through September, 1949. On August 13, 1948 the Railroad Retirement Board sent notice, as provided by the act, to the Comptroller of the Louisville & Nashville Railroad Company. This notice was received on or about the 17th of August, 1948.
The firm of Jackson, Rives & Pettus, intervenors, was first contacted by the complainant with reference to employment as his attorneys in his civil action against the Louisville & Nashville Railroad Company on January 20, 1949. Intervenors filed suit in behalf of complainant against the Louisville & Nashville Railroad Company on January 21, 1949, and the summons and complaint in the suit were served on January *779 27, 1949. This suit was for personal injuries and was brought under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq. On October 3, 1949 a consent judgment in the aforesaid suitCase Number 18,372-Xin the sum of $37,500.00 was entered in favor of the complainant and against the Louisville & Nashville Railroad Company in the Circuit Court for the 10th Judicial Circuit of Alabama. On October 8, 1949 the Louisville & Nashville Railroad Company requested information from the Railroad Retirement Board concerning the amount of benefits paid by the Board to the complainant, referring to the Board's letter of August 13, 1948. On October 13, 1949 the Board advised the Louisville & Nashville Railroad Company that the correct amount paid was $1,213.25. It is without dispute that this is the correct amount which was paid.
The Louisville & Nashville Railroad Company paid to the Clerk of the Circuit Court for the 10th Judicial Circuit of Alabama the sum of $36,286.75 subsequent to the entry of the aforesaid judgment. The sum of $1,213.25, was withheld because of the claim of the Railroad Retirement Board.
Subsequent thereto the intervenors distributed the amount received by them from the clerk of the court by deducting and paying to the firm $611.67 for expenses, by withholding as a fee the sum of $8,918.77 and paying over the balance of the proceeds to the complainant. This was done with knowledge that the Board claimed $1,213.25 of the $37,500.00 judgment.
I. It is without dispute that the complainant employed intervenors on January 20, 1949 as his attorneys to represent him in prosecuting his claim for personal injuries under the Federal Employers' Liability Act against the L. & N. Railroad Company with the agreement that the attorneys' fee of intervenors would be a contingent fee in an amount equal to 25% of the amount of recovery after deduction of expenses of prosecuting the claim. This suit was filed as aforesaid and without dispute the intervenors prepared the case for trial and tried the case. While the case was in progress and shortly before submission of the case to the jury, the consent judgment in the amount of $37,500.00 was entered by the court, as aforesaid. Without dispute the fee as agreed upon was conceded to be a reasonable fee and the services of the attorneys in bringing and prosecuting the suit were well and properly performed.
No attorneys' fee has been paid to the intervenors on the $1,213.25, which was withheld from payment by the L. & N. R. R. Co. and which was later paid into the registry of the court in this interpleader suit. In addition to the claim of the intervenors for a fee from the fund of $1,213.25, the intervenors also claim an additional fee for filing the bill of interpleader on behalf of complainant in the amount of $100.00.
In the letter of August 13, 1948 from the respondent, the Railroad Retirement Board, to the Louisville & Nashville Railroad Company the statute under which the respondent claimed its lien is set out in a form attached to the letter. This statute is Section 12(o) of the Railroad Unemployment Insurance Act, 45 U.S.C.A. § 362(o) and reads as follows: "Benefits payable to an employee with respect to days of sickness shall be payable regardless of the liability of any person to pay damages for such infirmity. The Board shall be entitled to reimbursement from any sum or damages paid or payable to such employee or other person through suit, compromise, settlement, judgment, or otherwise on account of any liability (other than a liability under a health, sickness, accident, or similar insurance policy) based upon such infirmity, to the extent that it will have paid or will pay benefits for days of sickness resulting from such infirmity. Upon notice to the person against whom such right or claim exists or is asserted, the Board shall have a lien upon such right or claim, any judgment obtained thereunder, and any sum or damages paid under such right or claim, to the extent of the amount to which the Board is entitled by way of reimbursement."
It is the position of the appellants that the lien of the respondent, the Railroad Retirement Board, if any, is subordinate to *780 the lien of the intervenors for attorneys' fees for services performed in obtaining judgment in the suit brought by the complainant against the Louisville & Nashville Railroad Company. The lien of intervenors as attorneys arises pursuant to § 64, subd. 2, Title 46, Code of 1940, which reads as follows: "2. Upon suits, judgments, and decrees for money, they shall have a lien superior to all liens but tax liens, and no person shall be at liberty to satisfy said suit, judgment or decree, until the lien or claim of the attorney for his fees is fully satisfied; and attorneys at law shall have the same right and power over said suits, judgments and decrees, to enforce their liens, as their clients had or may have for the amount due thereon to them."
Subsection 4 of the aforesaid section of the code is as follows: "4. The lien in the event of suit, provided in paragraphs two and three of this section, shall not attach until the service upon the defendant or respondent of summons, writ or other process * * *."
It clearly appears from the statute that the lien of the intervenors as attorneys could not arise until summons and complaint were served. This service was made on January 27, 1949. The notice of the respondent Railroad Retirement Board to the Louisville & Nashville Railroad Company was given on August 13, 1948 and was received not later than August 17, 1948. These respective dates determine which lien antedates the other. It is apparent that the lien of the Railroad Retirement Board antedates that of the intervenors by several months because the lien of the Railroad Retirement Board under the statute arises "Upon notice to the person against whom such right or claim exists * * *." 45 U.S.C.A. § 362(o). Since the lien of the Railroad Retirement Board antedates the lien of the intervenors, it is superior to it.
In Adams v. Alabama Lime & Stone Corp., 221 Ala. 10, 127 So. 544, 550, this court said:
"* * * it has been consistently and often declared that the attorney's lien is subordinate to all set-offs held by the judgment debtor at the time of its rendition. * * *
"We do not think this settled rule, declaring in effect that the attorney's lien on a judgment rises no higher than the judgment itself at the time of its rendition, has been changed by our statute, * * *. It could hardly be supposed the attorney's lien on property is made to displace existing liens or equities therein. * * *
"It is often said with force this view destroys, wipes out the judgment, the subjectmatter on which the lien is declared; that it is sound policy to protect the attorney whose professional labors have brought the judgment into being. Obviously our statutes aim to protect attorneys as to the effects of their clients involved in the litigation. There is likewise strong reason for saying the rights of the attorney should be limited to those of his client."
In the case of Grace v. Solomon, 241 Ala. 452, 3 So.2d 3, this court said: "The lien here provided (attorney's lien) cannot be extended beyond the fair intendment of the statute, the effect of which, in agreement with the common law, is to place the attorney in the position of an equitable assignee of the judgment obtained for his client."
From the foregoing authorities it is clear that the lien of the intervenors as attorneys is limited to the equity of their client in the judgment. It cannot under the statute extend to an equity in the judgment which is owned by another and which is superior to that of the complainant. Under the federal statute the Railroad Retirement Board clearly had a lien to the extent of the payments made by it superior to the rights of the complainant in the judgment recovered by him and this being true, the lien of the intervenors, attorneys, must be considered as subordinate to the lien of the respondent Railroad Retirement Board.
It is contended that the notice relied upon by the respondent Railroad Retirement Board in its letter of August 13, 1948 to the Louisville & Nashville Railroad Company fails to meet the requirements in claiming a lien because it fails to state any amount for which a lien is claimed and for which reimbursement should be made. There is no merit in this contention. The statute provides that the Board's right to *781 reimbursement is determined by the "extent that it will have paid or will pay benefits for days of sickness resulting from such infirmity." The statute provides for notice to the persons against whom the claim of the injured person exists and does not require any notice of the amount. Benefits paid under this statute are not lump sum benefits but are paid every two weeks upon application of the person entitled thereto. In the present case complainant upon his application received benefits beginning February 26, 1948 and continued with a brief interruption until September 1949. A total of $1,213.25 was paid. It would have been impossible at any time prior to the last payment for the respondent to have advised the Louisville & Nashville Railroad Company of the amount of its lien. To require it to wait would cause it to fail to assert its lien and would be to impose a condition not required by the act. We think the notice was in all respects sufficient to create a lien provided for in the statute and as pointed out, it contains in an attachment to the letter the provisions of the act relating to the Board's lien in verbatim. We think the notice served to advise the Louisville & Nashville Railroad Company that the Board claimed a lien on any amount that the Louisville & Nashville Railroad Company might later owe to the complainant. The notice put the Louisville & Nashville Railroad Company on notice of the right of the Board and provided the railroad with the means of ascertaining the amount claimed by the Board at any time that the railroad might be called upon to settle complainant's claim against it. The railroad was placed in the position where it had the duty to make inquiry and was charged with all that inquiry would reveal. Figh v. Taber, 203 Ala. 253, 82 So. 495; Morgan Plan Co. v. Accounts Supervision Co., 34 Ala.App. 457, 41 So.2d 424, certiorari denied 252 Ala. 473, 41 So.2d 428.
II. Citing Kimbrough v. Dickinson, 251 Ala. 677, 39 So.2d 241, 245, the position is taken by the appellant that the intervenors are entitled to be allowed a fee out of the fund paid into the registry of the court on the principle that the complainant has maintained a successful suit for the creation, preservation and protection of a common fund and has brought into court a fund in which another may share. The principle set forth in the foregoing authority is not applicable here. That case involved a trust fund of an estate. The interest of the person who had borne the burden and expense of litigation was not antagonistic to those who benefited by the litigation, all being heirs and next of kin of a decedent. In the foregoing authority it was said: "It will be observed that the co-complainants, in suits of this nature, all have a similar interest in the subject matter of litigation a common, and not an antagonistic interest in the trust fund, which has been brought under the control of the court. The necessary expenses of the original complainant incurred in litigation may very well, under these circumstances, be made payable out of the common fund, * * *."
In the case of Lewis v. Wilkinson, 237 Ala. 197, 186 So. 150, the court said: "Attorneys' fees will be charged to the interest in truth and in fact represented. The fact that the representation incidentally resulted in benefit to the other cestuis que trustent did not authorize charging them with attorneys' fees."
In Wilkinson v. McCall, 247 Ala. 225, 23 So.2d 577, 580, this court said: "Services for the common benefit of the parties mean services that are of benefit to the common estate, or in other words services rendered in a matter in which the trust as a trust is interested and not services in behalf of the individual interests of the parties to the cause." See Bidwell v. Johnson, 191 Ala. 195, 67 So. 985; Coker v. Coker, 208 Ala. 239, 94 So. 308.
In the foregoing authorities the court was considering the right of the attorney in the administration of a trust and in most of those cases such right in the light of § 63, Title 46, Code of 1940. See Penney v. Pritchard & McCall, 255 Ala. 13, 49 So.2d 782. But even though no trust be involved, the right to charge a fund with costs and expenses depends upon whether the costs and expenses were incurred in the promotion of the interest of those eventually found to be entitled to the fund. 14 Am.Jur. 48.
*782 The suit brought by complainant against the Louisville & Nashville Railroad Company was not in any sense a class suit or brought for the benefit of others. The complainant sought only to establish his own rights. The incidental benefit resulting to the Railroad Retirement Board is not a basis for charging the Railroad Retirement Board with the creation of a fund for its benefit.
Furthermore the action in which the judgment was procured was an action in a law court and not in equity. It was not filed in aid of or in connection with an equity proceeding as for example a receivership. In an action at law attorney's fees are not ordinarily taxable as costs. 20 C.J. S., Costs, § 218, page 457. The interpleader suit was instituted by complainant to protect himself against conflicting claims, 48 C.J.S., Interpleader, § 2, page 38 and not to create or protect a common fund from waste or destruction. Strong v. Taylor, 82 Ala. 213, 2 So. 706; Penney v. Pritchard & McCall, supra.
The services rendered by the attorneys in the suit in which the judgment against the railroad company was procured were services rendered in behalf of a client, the complainant in the cause, and his individual interest under a contract made only between complainant and intervenors. It was not a service rendered in behalf of the Railroad Retirement Board, although it resulted incidentally in benefit to the Railroad Retirement Board. As a result of the views which we have here expressed, the allowance of a fee cannot be sustained on a theory of services rendered for the common benefit of all the parties.
III. As to the allowance of an attorney's fee to be paid to the attorneys for instituting the interpleader proceedings out of the fund deposited, this was a matter which rested in the discretion of the court. There is nothing to show that this discretion was abused in failing to make the allowance, especially since the complainant and the intervenor were adjudged to have no interest in the fund. Jennings v. Jennings, 250 Ala. 130, 33 So.2d 251.
There was no error in directing payment of the fund deposited in court to the Railroad Retirement Board. The decree of the lower court must be affirmed.
Affirmed.
LIVINGSTON, C. J., and BROWN and LAWSON, JJ., concur.
| {
"pile_set_name": "FreeLaw"
} |
F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
August 22, 2006
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
C ECILIO P. FA BELA ,
Petitioner-A ppellant, No. 06-6117
v. (W .D. Oklahoma)
(D.C. No. CIV-05-799-L)
RON W ARD, W arden,
Respondent-Appellee.
OR DER
Before H E N RY, BR ISC OE, and O’BRIEN, Circuit Judges.
Cecilio Fabela, an Oklahoma state prisoner proceeding pro se, seeks a
certificate of appealability (“COA”) to appeal the district court’s decision
dismissing his 28 U.S.C. § 2254 petition for a writ of habeas corpus. M r. Fabela
also seeks to proceed in forma pauperis (“IFP”). In his § 2254 petition, M r.
Fabela raised seven claims regarding denial of due process, ineffective assistance
of counsel, and the prosecution’s failure to disclose a toxicology report favorable
to his defense. For substantially the same reasons set forth by the district court in
its well-reasoned order, we deny M r. Fabela’s application for a COA, deny his
request to proceed IFP, and dismiss this matter.
I. BACKGROUND
M r. Fabela was charged in Oklahoma state court with first degree murder
for the death of his wife, and was sentenced to life imprisonment without the
possibility of parole. His conviction and sentence were affirmed on direct review.
M r. Fabela also sought postconviction relief before the O klahoma state courts,
which was denied.
In his § 2254 petition, and before us, M r. Fabela raises seven propositions
of error. He contends: (1) he was denied an impartial jury because the State
exercised its peremptory challenges to exclude potential jurors on the basis of
race in violation of Batson v. Kentucky, 476 U.S. 79 (1986); (2) the trial court’s
refusal to give M r. Fabela’s requested jury instructions on issues related to
sentencing violated his Fourteenth Amendments due process rights; (3) the
cumulative effect of various trial errors and prosecutorial misconduct denied him
a fundamentally fair trial; (4) M r. Fabela’s sentence of life without parole is
excessive and violates the Eighth Amendment; (5) M r. Fabela received ineffective
assistance of trial and (6) appellate counsel; and (7) the State failed to disclose a
toxicology report in violation of Brady v. M aryland, 373 U.S. 83 (1963). M r.
Fabela did not raise the ineffective assistance claims or the Brady claim until he
filed his post-conviction proceedings in state court.
The magistrate judge recommended dismissal of each of the above claims
and recommended the denial of habeas relief. The district court adopted the
2
magistrate judge’s report and recommendation, and denied M r. Fabela’s
application for a certificate of appealability. For substantially the same reasons
provided in the magistrate judge’s thorough and well-reasoned report and
recommendation, we reject M r. Fabela’s arguments.
II. DISCUSSION
A COA can issue only “if the applicant has made a substantial showing of
the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “A petitioner
satisfies this standard by demonstrating that jurists of reason could disagree with
the district court’s resolution of his constitutional claims or that jurists could
conclude the issues presented are adequate to deserve encouragement to proceed
further.” M iller-El v. Cockrell, 537 U.S. 322, 327 (2003). A petitioner is entitled
to federal habeas relief only if the state court decision “was contrary to, or
involved an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States,” or “was based on an
unreasonable determination of the facts in light of the evidence presented in the
State court proceeding.” 28 U.S.C. § 2254(d)(1)-(2).
W e hold that the Oklahoma Court of Criminal Appeals’ application of the
Batson burden-framew ork was not contrary to nor an unreasonable application of
clearly established law. See Rice v. Collins, 126 S. Ct 969, 976 (2006)
(“Reasonable minds reviewing the record might disagree about the prosecutor's
credibility, but on habeas review that does not suffice to supersede the trial
3
court’s credibility determination.”). As to the jury instructions claim, we agree
that the Oklahoma Court of Criminal Appeals’ adjudication of this issue was not
an unreasonable application of Supreme Court precedent. As to the cumulative
error claim, the Oklahoma Court of Criminal Appeals’ resolution of this issue is
subject to deference, and we agree that any trial errors did not render M r.
Fabela’s trial fundamentally unfair, given the weight of the evidence against him.
W e agree that the Eighth Amendment claim based on an excessive sentence
should also be denied.
As to the ineffective assistance of trial counsel claim, we agree with the
magistrate judge and district court that M r. Fabela cannot show cause for his
procedural default of this claim, not can he demonstrate that failure to consider
the claim will result in a fundamental miscarriage of justice. See Coleman v.
Thom pson, 501 U.S. 722, 750 (1991); English v. Cody, 146 F.3d 1257, 1259 (10th
Cir. 1998).
As to the ineffective assistance of appellate counsel, we agree with the
detailed analysis of the magistrate judge that the omitted issues are meritless. See
Rec. doc. 15 at 27-35 (M ag. Rep. and Recommendation, filed Jan. 30, 2006).
Finally, with respect to the Brady claim, M r. Fabela alleged ineffective assistance
of appellate counsel as cause to overcome the procedural bar. W e agree with the
magistrate judge’s examination of the merits of this claim. M r. Fabela failed to
demonstrate that there existed a toxicology report not disclosed by the State.
4
W e have carefully reviewed M r. Fabela’s brief, the magistrate judge’s
report and recommendation, district court’s disposition, and the record on appeal.
Nothing in the facts, the record on appeal, or M r. Fabela’s filings raises an issue
which meets our standards for the grant of a COA. For substantially the same
reasons set forth by the district court, we are not persuaded that jurists of reason
would disagree with the district court’s disposition of M r. Fabela’s § 2254
petition.
III. CONCLUSION
W e DENY M r. Fabela’s request for a certificate of appealability, deny his
motion to proceed IFP, and DISM ISS the matter.
Entered for the Court,
Robert H. Henry
Circuit Judge
5
| {
"pile_set_name": "FreeLaw"
} |
795 F.2d 1008
*Nelsonv.United Credit Plan
86-3116
United States Court of Appeals,Fifth Circuit.
7/21/86
1
E.D.La.
REVERSED
2
---------------
* Fed.R.App.P. 34(a); 5th Cir.R. 34.2.
| {
"pile_set_name": "FreeLaw"
} |
742 F.Supp. 838 (1990)
Brian J. SCHENCK, as Administrator of the Estate of Patricia A. Schenck, and Brian J. Schenck, individually, and Brian J. Schenck, Jr. by his father and natural guardian, Brian J. Schenck, Plaintiffs,
v.
WALT DISNEY COMPANY and Walt Disney World Company, Defendants.
No. 90 Civ. 1773 (JMC).
United States District Court, S.D. New York.
July 17, 1990.
*839 Christopher T. McGrath, Sullivan & Liapakis, P.C., New York City, for plaintiffs.
James P. Barrett, Simpson Thacher & Bartlett, New York City, for defendants.
MEMORANDUM AND ORDER
CANNELLA, District Judge:
Defendant's motion to dismiss is denied. Fed.R.Civ.P. 12(b)(2). Defendant's motion to transfer is granted. 28 U.S.C. § 1406(a).
BACKGROUND
On October 9, 1989, Patricia Schenck, a New York resident visiting Walt Disney World in Orlando, Florida, was killed when the small rental boat she was piloting collided with a 500-person ferry boat. Brian Schenck, the deceased's husband, subsequently commenced a wrongful death action in New York State Supreme Court against Walt Disney World Company ["WDW"] and its parent, Walt Disney Company ["Disney Co."]. The action was thereafter removed to the United States District Court for the Southern District of New York.
Defendant WDW now moves to dismiss the complaint for lack of personal jurisdiction pursuant to Rule 12(b)(2) of the Federal Rules of Civil Procedure or, alternatively, for a transfer of venue to the Middle District of Florida pursuant to 28 U.S.C. § 1404(a). Plaintiff opposes the motion and claims that WDW is subject to personal jurisdiction under section 301 of the New York Civil Practice Law and Rules ["CPLR"] because it is "doing business" in the State of New York.
DISCUSSION
The law regarding personal jurisdiction is well established and need not be discussed in detail. Personal jurisdiction over a defendant in a diversity action is determined by the law of the forum in which the court sits. See Marine Midland *840 Bank, N.A. v. Miller, 664 F.2d 899, 901 (2d Cir.1981). Plaintiff must ultimately establish personal jurisdiction over defendant by a fair preponderance of the credible evidence. See Cutco Indus. v. Naughton, 806 F.2d 361, 365 (2d Cir.1986). However, where the court relies on pleadings and affidavits, instead of holding an evidentiary hearing, plaintiff need only make a prima facie showing that personal jurisdiction exists.[1]See Hoffritz for Cutlery, Inc. v. Amajac, Ltd., 763 F.2d 55, 57 (2d Cir.1985); Marine Midland, 664 F.2d at 904. In the absence of an evidentiary hearing, all pleadings and affidavits are construed in the light most favorable to plaintiff. See Cutco, 806 F.2d at 365.
Section 301 of the CPLR provides that "[a] court may exercise such jurisdiction over persons, property, or status as might have been exercised heretofore." This section preserves earlier New York case law which holds that "a corporation is `doing business' and is therefore `present' in New York and subject to personal jurisdiction with respect to any cause of action, related or unrelated to the New York contacts, if it does business in New York `not occasionally or casually, but with a fair measure of permanence and continuity.'" Hoffritz, 763 F.2d at 58 (quoting Tauza v. Susquehanna Coal Co., 220 N.Y. 259, 267, 115 N.E. 915, 917 (1917)). The test of whether a foreign corporation is doing business in New York is a "simple pragmatic one," Bryant v. Finnish Nat'l Airline, 15 N.Y.2d 426, 432, 208 N.E.2d 439, 441, 260 N.Y.S.2d 625, 629 (1965), in which the court determines whether the foreign corporation's activities in New York are "continuous and systematic." Hoffritz, 763 F.2d at 58. In applying this test, the court must decide whether "the quality and nature of the corporation's contacts with the State ... make it reasonable and just according to `traditional notions of fair play and substantial justice' that it be required to defend the action [in New York]." Laufer v. Ostrow, 55 N.Y.2d 305, 310, 434 N.E.2d 692, 694, 449 N.Y.S.2d 456, 458 (1982) (quoting International Shoe Co. v. State of Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945)).
In support of its motion to dismiss, WDW argues that it does not engage in the type of regular and systematic activities required for a finding of corporate "presence" in New York. WDW points out that it is a Delaware corporation which is qualified to do business in Florida and which maintains its principal place of business in Florida. Affidavit of Sydney L. Jackowitz, ¶ 2, 90 Civ. 1773 (JMC) (S.D.N.Y. Mar. 22, 1990) ["Jackowitz Affidavit"]. In addition, WDW is not qualified to do business in New York, has no office or place of business in New York, has no telephone listing in New York, and has no officers, agents or employees in New York. Id. at ¶ 4. Furthermore, WDW has neither incurred nor paid taxes to New York and has no assets in New York. Id. at ¶¶ 4-5.
Despite these facts, plaintiff contends that WDW is "doing business" in two ways: (1) through the solicitation of business by its New York representatives and (2) through the presence in New York of its parent, Disney Co. The Court will address each of these contentions in turn.
I. Solicitation of Business in New York
Mere solicitation of business in New York by a foreign corporation does not constitute "doing business" for jurisdictional purposes. See Laufer, 55 N.Y.2d at 310, 434 N.E.2d at 694, 449 N.Y.S.2d at 459; Carbone v. Fort Erie Jockey Club, *841 Ltd., 47 A.D.2d 337, 339, 366 N.Y.S.2d 485, 487 (4th Dep't 1975). However, where a foreign corporation engages in "activities of substance in addition to solicitation there is presence and, therefore, jurisdiction." Laufer, 55 N.Y.2d at 310, 434 N.E.2d at 695, 449 N.Y.S.2d at 459; see also Aquascutum of London, Inc. v. S.S. American Champion, 426 F.2d 205, 211 (2d Cir.1970) ("[O]nce solicitation is found in any substantial degree very little more is necessary to a conclusion of `doing business.'"). This so called "solicitation plus" rule is satisfied when, in addition to solicitation, the foreign corporation is involved in some financial or commercial dealings in New York or holds itself out as operating in New York. See Aquascutum, 426 F.2d at 212. In assessing the type of activities that satisfy this rule, courts "tend to focus on a physical corporate presence," Artemide SpA v. Grandlite Design & Mfg. Co., 672 F.Supp. 698, 701 (S.D.N.Y.1987), for example, the maintenance of an office, officers or a bank account in New York, or the occurrence of financial transactions or meetings in New York. See Laufer, 55 N.Y.2d at 310, 434 N.E.2d at 695, 449 N.Y. S.2d at 459 (citing cases).
Plaintiff argues that WDW has satisfied the "solicitation plus" rule through the activities of its New York representatives.[2] Specifically, plaintiff contends that WDW: (1) "solicits business in New York through the television, radio and print advertisements of its licensees, including Delta Airlines, Inc., [and] Greyhound Bus Lines, Inc. ...;" (2) "maintain[s] a contract with a New York advertising firm ... to promote Walt Disney World in the New York area;" and (3) "pays commissions to travel agents on all bookings at the seven resorts which comprise the Walt Disney World Resort." Affirmation in Opposition, ¶ 6, B. iii, iv, v, 90 Civ. 1773 (JMC) (S.D. N.Y. Apr. 16, 1990).
The seminal New York case dealing with the principles of personal jurisdiction and agency is Frummer v. Hilton Hotels International, Inc., 19 N.Y.2d 533, 227 N.E.2d 851, 281 N.Y.S.2d 41, cert. denied, 389 U.S. 923, 88 S.Ct. 241, 19 L.Ed.2d 266 (1967). In Frummer, the Court of Appeals found that a British hotel was subject to personal jurisdiction in New York through the activities of its agent, an affiliated company, where the New York agent not only solicited business and performed public relations activities, but also accepted and confirmed reservations on behalf of the foreign hotel. After noting the various activities that the agent performed for the hotel, the Court of Appeals concluded that the "significant and pivotal factor" is that "the [agent] does all the business which the [British hotel] could do were it here by its own officials." Id. at 537, 227 N.E.2d at 854, 281 N.Y.S.2d at 44. The Second Circuit, in interpreting Frummer, has held that
a foreign corporation is doing business in New York ... when its New York representative provides services beyond `mere solicitation' and these services are sufficiently important to the foreign corporation that if it did not have a representative to perform them, the corporation's *842 own officials would undertake to perform substantially similar services.
Gelfand v. Tanner Motor Tours, Ltd., 385 F.2d 116, 121 (2d Cir.1967), cert. denied, 390 U.S. 996, 88 S.Ct. 1198, 20 L.Ed.2d 95 (1968). In Gelfand, as in Frummer, the court focused on the New York representative's ability to accept and confirm reservations. See id.; see also Welinsky v. Resort of the World D.N.V., 839 F.2d 928, 930 (2d Cir.1988) (authority to make and confirm reservations without checking with foreign defendant goes beyond "mere solicitation of business").
The instant case is distinguishable from cases such as Frummer. The fact that WDW advertises in New York through its licensees and has a contract with a New York advertising agency amounts to nothing more than mere solicitation. More importantly, although WDW sends promotional material to travel agents in New York and may pay commissions to those travel agents, "[a]ll reservations must be confirmed by [WDW] in Florida." Jackowitz Affidavit, at ¶ 3. There is no evidence that any of WDW's New York representatives perform services that can contractually bind WDW. See Rolls-Royce Motors, Inc. v. Charles Schmitt & Co., 657 F.Supp. 1040, 1048 (S.D.N.Y.1987). Thus, WDW's New York representatives are unable to do all the business WDW could do "were it here by its own officials." Frummer, 19 N.Y.2d at 537, 227 N.E.2d at 854, 281 N.Y. S.2d at 44. The Court finds, therefore, that the WDW is not "doing business" in New York through the activities of its New York representatives.
II. Presence of Parent Company in New York
Plaintiff contends that WDW is subject to jurisdiction in New York because of the presence of its parent, Disney Co.[3] It is well established, however, that "[t]he `doing business' test does not subject a subsidiary corporation to personal jurisdiction simply because a state has jurisdiction over the parent, even if the parent is the sole shareholder of the subsidiary." Saraceno v. S.C. Johnson & Son, Inc., 83 F.R.D. 65, 67 (S.D.N.Y.1979) (citing cases); see also Ross v. Colorado Outward Bound School, Inc., 603 F.Supp. 306, 310 (W.D.N. Y.1985) (mere existence of "garden-variety" parent-subsidiary relationship is not sufficient to establish jurisdiction). Rather, the presence of the parent company may serve as a basis of jurisdiction over the subsidiary only if the parent is acting as the agent of the subsidiary or if the control by the parent over the subsidiary is so complete that the subsidiary is a "mere department" of the parent. See Grill v. Walt Disney Co., 683 F.Supp. 66, 69 (S.D. N.Y.1988); Saraceno, 83 F.R.D. at 67; cf. Bialek v. Racal-Milgo, Inc., 545 F.Supp. 25, 32 (S.D.N.Y.1982) (discussing jurisdiction over parent through activities of subsidiary).
In Grill, the court considered the question of whether the presence of Disney Co. in New York was sufficient to establish jurisdiction over WDW. The court concluded that "[t]here is nothing in the record which suggests that Disney Co. acts as agent for [WDW], or that [WDW] is merely a department of Disney Co." Grill, 683 F.Supp. at 69. Similarly, in the instant case plaintiff has failed to present evidence that Disney Co. conducts any activities on behalf of WDW in New York. Disney Co. does not accept or confirm reservations for WDW. See Jackowitz Affidavit, at ¶ 7. Furthermore, Disney Co. does not perform services for WDW in New York or supervise the day to day activities of WDW. See id. Although the two companies may share common directors, this alone is an insufficient basis for establishing personal jurisdiction over WDW. See Grill, 683 F.Supp. at 69.
In sum, the Court cannot draw an inference that Disney Co. acts as WDW's agent in New York or that WDW is a mere department of Disney Co. Accordingly, plaintiff has failed to present prima facie evidence that WDW is "doing business" in *843 New York because of the presence of Disney Co.
Although the Court lacks personal jurisdiction over WDW it need not dismiss the action. As the court concluded in Grill:
[T]he Court's lack of in personam jurisdiction does not require dismissal of the action because 28 U.S.C. § 1406(a) permits transfer of an action commenced in the wrong judicial district to the proper district in the interest of justice. Goldlawr v. Heiman, 369 U.S. 463, 82 S.Ct. 913, 8 L.Ed.2d 39 (1962). Here, transfer is appropriate because defendants have actual notice of the litigation and therefore will not be prejudiced.
Grill, 683 F.Supp. at 69; see also Corke v. Sameiet M.S. Song of Norway, 572 F.2d 77, 80 (2d Cir.1978) (ordering transfer in the interests of justice notwithstanding the fact that the transferor court was without personal jurisdiction over defendants); Ross, 603 F.Supp. at 310 (transferring action pursuant to 28 U.S.C. § 1406(a) despite lack of personal jurisdiction over defendant).
In the instant case, there is no allegation that defendants will suffer any prejudice if the action is transferred to Florida.[4] Furthermore, transfer would apparently enable plaintiff to obtain jurisdiction over WDW.[5] Accordingly, the Court finds that the instant case should be transferred, in the interest of justice, to the Middle District of Florida.
CONCLUSION
Defendant's motion to dismiss is denied. Fed.R.Civ.P. 12(b)(2). Defendant's motion to transfer is granted. 28 U.S.C. § 1406(a).
The Clerk of the Court is directed to transfer this action to the United States District Court for the Middle District of Florida.
SO ORDERED.
NOTES
[1] Plaintiff argues that in the event he fails to make even a prima facie showing of personal jurisdiction over WDW, he should nevertheless be entitled to conduct discovery on the issue of jurisdiction. However, to be permitted jurisdictional discovery, plaintiff must at least allege facts that would support a colorable claim of jurisdiction. See Daval Steel Products v. M.V. Juraj Dalmatinac, 718 F.Supp. 159, 162 (S.D.N. Y.1989). The Court finds that plaintiff has failed to make even this threshold showing. In any event, it seems that plaintiff had access to the jurisdictional discovery taken in Grill v. Walt Disney Co., 683 F.Supp. 66 (S.D.N.Y.1988), a case which raised identical jurisdictional questions. See Affirmation in Opposition, Exhs. J, Q, & Y, 90 Civ. 1773 (JMC) (S.D.N.Y. Apr. 16, 1990). Thus, plaintiff's alternative request to conduct discovery is denied.
[2] Plaintiff also seems to argue that WDW itself is directly doing business in New York. For example, plaintiff alleges that WDW "solicit[s] business through advertising and brochures," hires "athletes at major sporting events televised in the New York area to advertise for Walt Disney World," and "recruits students from New York Colleges and Universities ... to work at Walt Disney World." Affirmation in Opposition, ¶ 6, B. ii, vii, xiii, 90 Civ. 1773 (JMC) (S.D.N.Y. Apr. 16, 1990). All of the regular activities alleged, however, do not amount to anything more than mere solicitation by WDW.
The only regular and systematic activity asserted in plaintiff's opposition papers which goes beyond mere solicitation is the allegation that WDW produces Walt Disney porcelains and guidebooks that are distributed in at least five gift shops in New York. Affirmation in Opposition, ¶ 6, B. ix. As WDW points out, however, the advertisement submitted by plaintiff which promotes these products contains the copyright of Disney Co., not WDW. Even assuming that these products were manufactured by WDW, it is still not the type of activity that establishes corporate presence in New York. See Delagi v. Volkswagenwerk AG of Wolfsburg, Germany, 29 N.Y.2d 426, 433, 278 N.E.2d 895, 898, 328 N.Y. S.2d 653, 657 (1972) ("[M]ere sales of a manufacturer's product in New York, however substantial, have never made the foreign corporation manufacturer amenable to suit in this jurisdiction.").
[3] Disney Co. is a Delaware corporation which is qualified to do business in New York. See Answer, at ¶ 3, 90 Civ. 1773 (JMC) (S.D.N.Y. Mar. 22, 1990).
[4] In fact, WDW moved in the alternative to transfer venue to the Middle District of Florida pursuant to 28 U.S.C. § 1404(a). However, the Court is transferring the action in the interest of justice pursuant to 28 U.S.C. § 1406(a). See Grill, 683 F.Supp. at 69 n. 3; see also Corke, 572 F.2d at 78 & n. 1.
[5] The record indicates that WDW, not Disney Co., owns, operates and controls Walt Disney World in Florida. See Jackowitz Affidavit, at ¶¶ 2, 7. Although Disney Co. is subject to personal jurisdiction in New York, its only connection with this litigation is its status as the parent of WDW. See Grill, 683 F.Supp. at 67 n. 1.
| {
"pile_set_name": "FreeLaw"
} |
434 So.2d 424 (1983)
Wilburn Troy STRICKLAND
v.
TESORO DRILLING CO., Aetna Casualty and Surety Co., Louisiana Land and Exploration Co. and National Union Fire Insurance Co. of Pittsburg, Pa.
No. 82-CA-0612.
Court of Appeal of Louisiana, First Circuit.
April 5, 1983.
Rehearing Denied July 15, 1983.
*425 Bradford R. Roberts, II, New Orleans, for plaintiff-appellant.
Ben Louis Day, Baton Rouge, James E. Blazek, New Orleans, for defendant-appellee Tesoro.
Donald Ensenat, New Orleans, for defendant-appellant La. and defendant-appellee Nat. Union.
Lawrence F. Chisholm, New Orleans, for intervenor Fireman's Fund.
Before EDWARDS, WATKINS and SHORTESS, JJ.
EDWARDS, Judge.
In this personal injury action, the plaintiff on appeal seeks an increase in the trial court's damage award for future lost earnings. In answering plaintiff's appeal, Tesoro *426 Drilling Co. (Tesoro) and Aetna Casualty and Surety Co. (Aetna) allege the trial court erred in not maintaining the defenses of victim fault and fault of a third party, and additionally argue that the awards for general damages and future lost earnings are excessive. Finally, Louisiana Land and Exploration Co. (LL & E) appeals the trial court's judgment granting Tesoro's third-party demand for a contractual indemnity from LL & E. We affirm.
BACKGROUND FACTS
Wilburn Troy Strickland, plaintiff, was injured on May 6, 1979, while working on a drilling rig owned by Tesoro. Strickland was injured when a piece of pipe known in the oil business as a "finger" broke off and fell from the derrick striking him on the head and shoulder while he stood on the rig floor.
LL & E had contracted with Tesoro to drill the well in question. The plaintiff was employed by Fishing Tools, Inc., a specialty service engaged by LL & E to provide torque control in the drilling process. The plaintiff sued Tesoro, its insurer, Aetna, LL & E and its insurer, National Union Fire Insurance Co. (National) for damages resulting from the accident. Tesoro and Aetna filed a third-party demand against LL & E and National seeking contractual indemnity for any recovery by the plaintiff against them.
The trial court rendered judgment in favor of plaintiff and against Tesoro and Aetna in the amount of $272,214.16. The court found Tesoro strictly liable for plaintiff's injuries under La.Civ.Code Art. 2322. The main demand against LL & E and National was dismissed, as the court found neither negligence nor strict liability on their part. However, the trial court did grant Tesoro's third-party demand against LL & E for indemnification, holding that the indemnity provision in the drilling contract included strict liability under La.Civ. Code Art. 2322.
On appeal, the parties have raised the following issues, which will be considered in turn:
(1) Tesoro and Aetna urge the defenses of victim fault and fault of a third-party were proven by a preponderance of the evidence. They also allege the awards for general damages ($35,000.00) and future lost earnings ($195,000.00) are excessive.
(2) Plaintiff alleges the award for future lost earnings is insufficient and based on an erroneous finding by the trial court that he will regain sixty percent of his prior ability.
(3) LL & E argues that the indemnity provision does not include strict liability, nor does it apply to injuries caused by defects that either arose during other drilling operations or during the manufacturing of the "finger".
VICTIM/THIRD-PARTY FAULT
The plaintiff was injured during the storage of the power swivel in the part of the rig known as the "rat hole". The power swivel, manufactured by Fishing Tools, is used to monitor the amount of torque applied to the drill pipe. Prior to the accident, it became necessary to remove the power swivel from the drill pipe for storage. Plaintiff, who was operating the swivel at the time, directed the storing procedure, which consisted of lifting the swivel by air hoist and lowering it into the "rat hole". Plaintiff testified that he was struck by the "finger" while unlatching the air hoist from the swivel, after it had been stored. However, Tesoro and Aetna claim that contradictory testimony established that the plaintiff caused his own injuries by negligently directing the storing procedure.
Mason Minchew, the driller on duty at the time of the accident, testified that the plaintiff was struck by the "finger" during the storage procedure, immediately after plaintiff signaled for the air hoist to be lowered. Minchew added that this signal was untimely as the block from which the swivel was suspended was swinging in the wrong direction. According to Minchew, this placed the rigging in a bind and would bring the air hoist cables in close proximity to the "finger". He did not, however, testify *427 that he saw the cables entangled with the "finger". Minchew's testimony, as well as the testimony of other witnesses to the accident, fails to establish that plaintiff's actions were a cause-in-fact of his injuries. We agree with the trial court's conclusion that the defense of victim fault has no merit. Manifest error has not been shown. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).
Alternatively, Tesoro and Aetna contend that the actions of a third party, Wayne Zeringue, resulted in plaintiff's injuries. Zeringue, a petroleum engineer, was contracted by LL & E to supervise the drilling operations at the well site. Thus, Tesoro and Aetna urged that he was responsible for inspecting the rig for defects, and his failure to do so resulted in plaintiff's injuries. However, the evidence reflects that it was Tesoro's tool pusher, Philip Hopkins, who was responsible for maintenance and inspections of the rig. Thus, we agree with the trial court's ruling that the defense of third-party fault is without merit. No manifest error is present. Arceneaux, supra.
QUANTUM
Tesoro and Aetna contend that the awards of $35,000.00 for general damages and $195,000.00 for future lost earnings are excessive. However, our review of the record reveals that the awards are reasonable in light of the evidence presented. The pain and discomfort suffered by the plaintiff are apparent by the facts and testimony, and the future earnings award lies within the range established by the parties' economic experts. Absent an initial determination that the trial court has abused its discretion, this court should not disturb the trier's award. Reck v. Stevens, 373 So.2d 498 (La.1979).
Plaintiff, however, contends that the award for future lost earnings is insufficient and based on an erroneous finding by the trial court that he will regain sixty percent of his prior ability. Plaintiff submits that this finding has no basis in the record and is inconsistent with other factual findings in the trial court's opinion. However, our review of the record shows that while plaintiff's doctor felt further rehabilitation was improbable, the defendants' examining doctor believed the plaintiff could achieve full recovery after six months of exercise. The trial court's finding that plaintiff will recover sixty percent of his prior ability is clearly within the range of recovery established by the experts, and is a reasonable exercise of discretion. Moreover, the grant of $195,000.00 for future lost earnings is within the range set by the parties' economists. No abuse of discretion is present that would prompt this court to disturb the award. Robinson v. Graves, 343 So.2d 147 (La. 1977).
Nor do we find an inconsistency in the trial court's opinion. Plaintiff argues the trial court's finding that he will probably recover "sixty percent of his prior ability... to function fully, if not in the oil field, certainly in a similar occupation" is inconsistent with another finding that "although plaintiff is not permanently, completely disabled he will not ever be able to return to his former work as a power swivel operator." Although somewhat confusing, we interpret the trial court's findings as saying that although the plaintiff's recovery will not allow him to return to operating a power swivel, he should be able to perform a similar job, perhaps in the oil field business. This construction is supported by the evidence, particularly the expert medical testimony, and justifiable inferences therefrom.
INDEMNITY
The drilling contract between Tesoro and LL & E contains the following provision on indemnity:
"Operator's Indemnification of Contractor: Operator [LL & E] agrees to protect, defend, indemnify and save Contractor [Tesoro] harmless from and against all claims, demands and causes of action of every kind and character, without limit and without regard to the cause or causes thereof or the negligence of any party, arising in connection herewith in *428 favor of Operator's employees, Operator's contractors or their employees, ... on account of bodily injury, death or damage to property." (emphasis added).
Fishing Tools is a separate contractor of LL & E, as it was hired by Wayne Zeringue, LL & E's contracted petroleum engineer. Thus, plaintiff, an employee of Fishing Tools, is covered by the indemnity provision. The trial court held the provision included strict liability and ordered LL & E to indemnify Tesoro for the amount awarded plaintiff.
LL & E, however, argues that since the provision does not expressly refer to "strict liability" or "La.Civ.Code Art. 2322", it therefore does not unequivocally state the intent of the parties to indemnify strict liability. We disagree. The provision must be interpreted according to its intended meaning, and the absence of specific words is not decisive. Hyde v. Chevron U.S.A., Inc., 697 F.2d 614 (5th Cir.1983); Polozola v. Garlock, Inc., 376 So.2d 1009 (La.App. 1st Cir.1979). The specific language in the instant provision of "all claims, demands and causes of action of every kind and character" is broad enough to include strict liability, and evidences a clear intent to do so. A similar provision in Hyde, providing indemnity for "any claims for damages ..., for injury to, ... employees of contractor" was held to include indemnity for strict liability. The instant provision is broader and more inclusive than the Hyde language. Additionally, as discussed in Hyde, the policies underlying strict liability argue for permitting indemnity agreements to include such cases. We, therefore, hold the intention of the parties was that LL & E should indemnify Tesoro against claims of strict liability made by employees (plaintiff) of LL & E's contractors (Fishing Tools).
PREEXISTING DEFECTS
LL & E further argues that the indemnity provision does not apply to the instant factual setting. According to LL & E, the injury suffered by plaintiff was caused by a "finger" containing a preexisting defect. LL & E submits the "finger" was defective since its manufacture or made so by misuse on other Tesoro drilling rigs. Thus, under the language of the indemnity provision, LL & E concludes that plaintiff's injury was not "arising in connection" with the work under the drilling contract.
In Mott v. ODECO, 577 F.2d 273 (5th Cir.1978), the court held that the parties there did not intend their indemnity provision to cover injuries caused by preexisting defects. However, this interpretation was based on the testimony of one of the parties that such injuries were not to be included. Moreover, the court found that the defect was preexisting. But in our case, no such finding, testimony or other evidence supporting LL & E's claim is present. Accordingly, we find this contention without merit.
DECREE
For the above-expressed reasons, we affirm the judgment of the trial court. Costs of this appeal are to be shared equally by all parties.
AFFIRMED.
SHORTESS, Judge, dissenting.
Notwithstanding applicant's impertinence, which is probably in violation of our Rule 2:12:4, a rehearing should be granted on the question of indemnification, because it is my opinion that we may have erred originally as to that issue.
| {
"pile_set_name": "FreeLaw"
} |
206 F.3d 449 (5th Cir. 2000)
UNITED STATES OF AMERICA Plaintiff-Appelleev.BETTY LOUISE MAREK Defendant-Appellant
Nos. 98-40568, 98-40955.
IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
February 24, 2000
Appeal from the United States District Court for the Southern District of Texas
ON PETITION FOR REHEARING EN BANC
(Opinion December 15, 1999, 5 Cir., 1999, 198 F.3d 532)
Before KING, Chief Judge, JOLLY, HIGGINBOTHAM, DAVIS, JONES, SMITH, WIENER, BARKSDALE, EMILIO M. GARZA, DeMOSS, BENAVIDES, STEWART, PARKER and DENNIS, Circuit Judges.
BY THE COURT:
1
A member of the Court in active service having requested a poll on the petition for rehearing en banc and a majority of the judges in active service having voted in favor of granting a rehearing en banc,
2
IT IS ORDERED that this cause shall be reheard by the court en banc with oral argument on a date hereafter to be fixed,
3
IT IS FURTHER ORDERED that this cause shall be consolidated for purposes of briefing and argument with No. 98-40955, United States of America vs. Dora Garcia Cisneros. The Clerk will specify a briefing schedule for the filing of supplemental briefs.
| {
"pile_set_name": "FreeLaw"
} |
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 03-1235
___________
Lee Charles Millsap, Jr., *
also known as Solomon Lee, *
*
Appellant, *
*
v. *
*
Jefferson County; Lincoln County, *
Arkansas; Ray Hobbs, Chief Deputy *
Director, Jefferson and Lincoln County *
Department of Correction; Larry May, *
Deputy Director, Jefferson and Lincoln *
County Department of Correction; *
Tiffanye Compton, Secretary, * Appeal from the United States
Arkansas Department of Correction; * District Court for the Eastern
Rick L. Toney, Warden, Varner Super * District of Arkansas.
Max, ADC; James Banks, Assistant * [UNPUBLISHED]
Warden, Varner Super Max, ADC; *
Randall Manus, Assistant Warden, *
Varner Super Max, ADC; Jim W. Via, *
Captain, Varner Super Max, ADC; *
T. Brown, Administrative Review *
Officer, Varner Super Max, ADC; *
J. Co-II, Varner Super Max, ADC; *
S. Jordan, Security Officer, Varner *
Super Max, ADC; B. Smallwood, *
Mail Room Supervisor, Varner *
Super Max, ADC; S. Brasfield, *
Mail Room Supervisor, Varner *
Super Max, ADC, *
*
Appellees. *
___________
Submitted: July 24, 2003
Filed: December 23, 2003
___________
Before LOKEN, Chief Judge, BYE, and MELLOY, Circuit Judges.
___________
PER CURIAM.
Arkansas inmate Lee Charles Millsap, Jr., appeals the district court's order
denying his in forma pauperis (IFP) application after determining Millsap had three
or more "strikes" under 28 U.S.C. § 1915(g) (i.e., previous actions dismissed on the
grounds they were frivolous, malicious, or failed to state a claim upon which relief
may be granted), and dismissing his civil rights complaint for his failure to prepay the
filing fee. Millsap argues some of his previous actions were dismissed without
prejudice merely for lack of administrative exhaustion, and should not count as
"strikes" under section 1915(g).
We agree in part, and make this distinction. In one case, an inmate may allege
exhaustion in the complaint but still face dismissal because the procedural history of
the case reveals an actual failure to exhaust administrative remedies. In another case,
an inmate's complaint may be dismissed for simply failing to allege exhaustion in the
complaint. We believe the former should not count as a strike under section 1915(g),
but the latter should because the complaint fails to state a claim upon which relief can
be granted. See Porter v. Fox, 99 F.3d 271, 274 (8th Cir. 1996) (holding plaintiff who
did not allege exhaustion of administrative remedies failed to state a claim).
The record before us indicates Millsap had two previous actions dismissed for
failure to exhaust. But we cannot tell whether those complaints were dismissed
because Millsap failed to allege exhaustion, or whether one or both complaints were
-2-
dismissed for an actual failure to exhaust notwithstanding an allegation of exhaustion.
We therefore remand for additional proceedings consistent with this opinion.
______________________________
-3-
| {
"pile_set_name": "FreeLaw"
} |
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted January 14, 2019*
Decided January 15, 2019
Before
FRANK H. EASTERBROOK, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 18-1773
MONTRELL HOLMES, Appeal from the United States District
Plaintiff-Appellant, Court for the Southern District of Illinois.
v. No. 15-cv-667-SCW
VIPIN SHAH, et al., Stephen C. Williams,
Defendants-Appellees. Magistrate Judge.
ORDER
Montrell Holmes sued three medical professionals at Pinckneyville Correctional
Center for violating the Eighth Amendment through their deliberate indifference to his
shoulder pain. A magistrate judge, presiding by consent, entered summary judgment
* We have agreed to decide this case without oral argument because the briefs
and record adequately present the facts and legal arguments, and oral argument would
not significantly aid the court. FED. R. APP. P. 34(a)(2)(C).
No. 18-1773 Page 2
for the defendants. The judge correctly reasoned that the undisputed evidence showed
that the defendants had treated Holmes adequately, so we affirm the judgment.
We construe all facts and reasonable inferences in favor of Holmes, see Daugherty
v. Page, 906 F.3d 606, 609 (7th Cir. 2018). During a game of basketball in July 2014,
Holmes was hit in the shoulder. He asserts that a nurse told him to take pain relievers
and that if the pain did not stop after eight weeks, he should go to the health care unit.
His shoulder still bothered him three months later, so he went to that unit. He told
Lauren Barron, the nurse on duty, that he had been taking pain relievers that he had
purchased from the commissary and other inmates. He had no record of the drug types
or dosage from his self-medication, but said that the drugs were ineffective. Barron
examined Holmes and saw no signs of discomfort or abnormalities. Because he had not
yet been seen three times for his shoulder pain, she followed prison protocol and
declined Holmes’s request to see a doctor. She prescribed Tylenol and told Holmes to
return if his symptoms did not improve. Unhappy with this result, Holmes filed a
grievance and wrote to Shelly Shipley, the Director of Nursing, for more care for his
shoulder pain. He received no response from Shipley, and his grievance was denied
because he was already receiving treatment.
Over the next six weeks, Holmes returned to the health unit to complain about
his shoulder. In October, a nurse examined him and detected no loss of function, but
switched Holmes to Motrin and suggested that he stop exercising to allow his shoulder
time to heal. Another nurse saw him two weeks later. She too noted no obvious signs of
discomfort, but decided that, because he had now been seen three times for the same
complaint, he should see the physician, Dr. Vipin Shah. Later that week, Dr. Shah
ordered an x-ray, prescribed naproxen for pain, and instructed Holmes to follow up in
two weeks. The x-rays revealed no fracture, abnormality, or joint separation. Despite
Dr. Shah’s advice to see him again, Holmes did not request a follow-up appointment.
Instead, he complained at least two more times to Shipley that he was still in pain and
had not been told the results of the x-ray. Shipley again did not respond.
Dissatisfied with Dr. Shah and Shipley, Holmes filed another grievance. He
complained that he had not been given more pain medication for his shoulder, that he
had not learned the results of the x-ray, and that Shipley had not responded to his
letters. Shipley told Holmes’s grievance counselor that Holmes was scheduled for the
next available opening in the health care unit where he would receive a follow-up
review of his shoulder pain and his x-ray results. Before this occurred, however,
No. 18-1773 Page 3
Holmes was transferred to Illinois River Correctional Center, where he received
treatment that satisfied him.
Upset with his treatment at Pinckneyville, Holmes unsuccessfully sought
administrative relief and then filed this suit under 42 U.S.C. § 1983 against his medical
providers for allegedly violating the Eighth Amendment. The defendants moved for
summary judgment, which the magistrate judge entered. First, the judge ruled that no
rational jury could find that Nurse Barron’s initial treatment of Holmes’s shoulder pain
with pain killers showed deliberate indifference. The judge next ruled that because
Dr. Shah saw Holmes once, prescribed naproxen, and ordered an x-ray and a follow-up
visit, a jury could not find that he was deliberately indifferent. Finally, the judge
decided, a jury could not find that Shipley violated the Eighth Amendment by not
responding to Holmes’s letters, because each time Holmes wrote her, he was already
receiving adequate treatment.
On appeal, Holmes first discusses Barron, the nurse. He argues that, because he
told Barron at their first meeting that he had been using pain relievers for over eight
weeks and they were ineffective, her refusal to refer him immediately to a doctor
violated the Eighth Amendment. Healthcare staff at a prison violate the Eighth
Amendment if they intentionally disregard a known, objectively serious medical
condition that poses an excessive risk to a prisoner’s health. Farmer v. Brennan, 511 U.S.
825, 837 (1994); Estelle v. Gamble, 429 U.S. 97, 106–07 (1976); Gonzalez v. Feinerman, 663
F.3d 311, 313 (7th Cir. 2011). But Barron did not disregard such a risk. She examined
Holmes, noted no visible signs of injury, and knew that medical personnel had not seen
him three times for complaints about his shoulder injury. Following the prison’s
protocol requiring three attempts to resolve pain before a doctor’s referral (a protocol
that Holmes does not challenge), she reasonably prescribed him Tylenol and told him to
return if his issues persisted. Although Holmes told Barron that the pain relievers he
had used from the commissary and other inmates had been ineffective, he had no
record of his self-medication for her to see. Therefore, a jury could not rationally find
that Barron’s proposed course of conservative treatment was such “a substantial
departure from accepted professional judgment … as to demonstrate that [she] did not
base the decision on such a judgment.” Duckworth v. Ahmad, 532 F.3d 675, 682 (7th Cir.
2008) (quoting Estate of Cole by Pardue v. Fromm, 94 F.3d 254, 261–62 (7th Cir. 1996)).
Holmes next argues that Dr. Shah was deliberately indifferent to his medical
needs. He contends that his complaints to Dr. Shah about his pain necessitated an MRI
instead of an x-ray to diagnose him properly. But having not submitted to the district
No. 18-1773 Page 4
court any evidence that an MRI was essential to assess his complaints, Holmes is not
entitled to a trial over his preferred diagnostic tool. See Harper v. Santos, 847 F.3d 923,
927 (7th Cir. 2017). No evidence refutes that Dr. Shah adequately treated Holmes by
prescribing pain medication, ordering an x-ray to rule out the possibility of a fractured
shoulder (as it did), and instructing Holmes to follow up if pain persisted (which
Holmes failed to do). See Petties v. Carter, 836 F.3d 722, 729 (7th Cir. 2016) (en banc).
Thus, summary judgment in favor of Dr. Shah was proper.
Last, Holmes argues that Shipley was deliberately indifferent to his injury
because she ignored his letters and thereby refused to help him obtain other medical
treatment. But each time Holmes wrote Shipley a letter, he was (as we have explained)
already receiving constitutionally adequate treatment. While Holmes may have wanted
more treatment than pain killers and an x-ray, his mere disagreement with the course of
adequate treatment is not enough to create a triable claim of deliberate indifference, see
Berry v. Peterman, 604 F.3d 435, 441 (7th Cir. 2010); Harper, 847 F.3d at 927. Because
Shipley’s failure to respond to Holmes’s letters did not reflect deliberate indifference to
his medical needs, summary judgment in her favor was correct.
AFFIRMED
| {
"pile_set_name": "FreeLaw"
} |
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
WILLIAM G. SLOAN,
Plaintiff-Appellant,
v. No. 02-1787
AUDITRON ELECTRONIC CORPORATION,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of West Virginia, at Clarksburg.
Irene M. Keeley, Chief District Judge.
(CA-01-70)
Argued: April 2, 2003
Decided: June 5, 2003
Before TRAXLER and KING, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
COUNSEL
ARGUED: Perry Wayne Oxley, OFFUTT, FISHER & NORD, Hun-
tington, West Virginia, for Appellant. Megan Dowd Dortenzo, STEP-
TOE & JOHNSON, P.L.L.C., Clarksburg, West Virginia, for
Appellee. ON BRIEF: Holly G. DiCocco, OFFUTT, FISHER &
NORD, Huntington, West Virginia, for Appellant. Michael T. Smith,
STEPTOE & JOHNSON, P.L.L.C., Clarksburg, West Virginia, for
Appellee.
2 SLOAN v. AUDITRON ELECTRONIC CORP.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
William G. Sloan appeals from an order of the district court award-
ing summary judgment to Auditron Electronics Corporation ("AEC")
on Sloan’s claims that Auditron infringed his registered service mark
and violated the Anticybersquatting Consumer Protection Act. We
affirm.
I.
In 1965, Sloan applied for federal trademark registration of a styl-
ized depiction of the word "Auditron." The distinctive lettering used
in the proposed mark included a large A which was extended to
underline the other letters, all of which were upper case except for the
letter "i"; additionally, the letters used in the mark were light in color
and were emblazoned upon a dark background. Sloan’s application
indicated that he was using the mark in connection with his "Book-
keeping and Accounting and Tax Service." J.A. 677. Sloan selected
the name Auditron as shorthand for "audit electronically." The Patent
Office registered AUDITRON in the principal register as a service
mark, and it appeared in the same stylized lettering that Sloan submit-
ted with his application.
Sloan, who conducted business in California, continued to use the
name Auditron in connection with his accounting services, but in
1968, he stopped using the precise stylization of Auditron that was
registered as a service mark. Sloan acknowledges that he then began
experimenting with different stylizations of the name Auditron. He
claims to have used the name Auditron continuously from the time he
obtained his registration; the form or style he used to depict the name
Auditron, however, has differed from that which was approved for
registration. Sloan sold the business to his son Scott in 2000. He con-
tends that he granted permission for Scott to use the registered mark,
but that he maintained ownership of the mark.
SLOAN v. AUDITRON ELECTRONIC CORP. 3
AEC was incorporated in Pennsylvania in 1978, and its primary
business was "the manufacture and distribution of High Fidelity
House speakers and components." J.A. 712. AEC was interested in
adopting the name Auditron because it contains elements of the words
"audio" and "electronics." J.A. 713. Prior to officially selecting
Auditron for its corporate name, AEC conducted a trademark search,
found Sloan’s registered mark, and sought legal advice regarding the
availability of Auditron as a corporate name. AEC determined that the
name was available for use in connection with high-fidelity speakers
because Sloan’s mark was "used to identify bookkeeping, accounting
and tax services" and thus AEC’s use of the name Auditron created
"no likelihood of confusion." J.A. 637.
By the mid-1980s, AEC’s primary product was no longer high-
fidelity speakers; instead, AEC was producing "Zymed," a computer
software program designed to help healthcare professionals manage
their practices. AEC continued to use the name Auditron after it
shifted its primary business interest from audio speakers to computer
software.
In 1998, Steven McNaughton, president of AEC, registered the
domain name "auditron.com" under which AEC maintained an inter-
net web site to promote the Zymed computer software. In October
1999, just prior to purchasing the accounting business from his father,
Scott Sloan attempted to register the domain name "auditron.com" but
learned that AEC had already done so.
Sloan then filed this action pro se, alleging that AEC’s use of the
name Auditron constituted trademark infringement under the Lanham
Act. See 15 U.S.C.A. § 1114 (West 1997 & Supp. 2003); 15 U.S.C.A.
§ 1125 (West 1998 & Supp. 2003). Sloan also alleged that AEC’s use
of the name Auditron violated the Anticybersquatting Consumer Pro-
tection Act (ACPA). See 15 U.S.C.A. § 1125(d) (West Supp. 2003).
Sloan did not assert any claims for infringement of a common law
trademark, service mark or trade name.
The district court granted summary judgment to AEC on both
claims. The court concluded as a matter of law that AEC’s use of the
Auditron name did not infringe on Sloan’s registered mark because
Sloan had abandoned the mark and that Sloan had not come forward
4 SLOAN v. AUDITRON ELECTRONIC CORP.
with sufficient facts to demonstrate that AEC’s use of the name
Auditron was likely to create confusion with Sloan’s registered mark
in the first place. On the cybersquatting claim, the district court deter-
mined that Sloan failed to present a factual basis to support the con-
clusion that, as required by the ACPA, "AEC had a bad faith intent
to profit from Sloan’s mark" when it registered the auditron.com
domain name. J.A. 1051. This appeal followed.*
II.
Sloan argues that the district court improperly granted summary
judgment to AEC on his infringement claim because questions of fact
still exist on the issue of abandonment. Under the Lanham Act, a
mark has been abandoned "[w]hen its use has been discontinued with
intent not to resume such use." 15 U.S.C.A. § 1127 (West Supp.
2003). A defendant asserting an abandonment defense is required to
show two elements: (1) plaintiff’s non-use of the mark, and (2) plain-
tiff’s lack of intent "to resume use in the reasonably foreseeable
future." Emergency One, Inc. v. American Fireeagle, Ltd., 228 F.3d
531, 535 (4th Cir. 2000) (internal quotation marks omitted). However,
if the defendant can show that plaintiff has not used the mark for three
consecutive years, then that fact alone "constitutes prima facie evi-
dence of abandonment" and "creates a presumption — a mandatory
inference of intent not to resume use." Id. at 536; see 15 U.S.C.A.
§ 1127.
Before it could consider the question of whether Sloan abandoned
his registered mark, the district court first had to determine the nature
of the mark that Sloan registered. Sloan testified to his belief that his
trademark rights were in the name Auditron, regardless of the form
in which it was depicted, rather than any specific stylization of the
name. An applicant for trademark registration is required to submit a
drawing of the mark, see 37 C.F.R. § 2.51, and must choose one of
two types of drawings: (1) a "typed drawing," which is "not limited
to the mark depicted in any special form or lettering," 37 C.F.R.
§ 2.52(a)(1), or (2) a "special form drawing," which is required when
*The district court declined to award AEC attorney fees as a "prevail-
ing party" under the Lanham Act. See 15 U.S.C.A. § 1117(a) (West
Supp. 2003). AEC did not appeal.
SLOAN v. AUDITRON ELECTRONIC CORP. 5
the mark uses "words, letters, or numbers in a particular style of let-
tering; or unusual forms of punctuation." 37 C.F.R. § 2.52(a)(2). The
district court properly concluded that Sloan submitted a special form
drawing and that "his rights in the word, ‘auditron,’ are limited to that
design and those forms that do not alter the continuing commercial
impression of that mark." J.A. 1029. To the extent that Sloan argues
on appeal that his registered mark is a word mark simply because he
subjectively intended to register such a mark, we reject the argument
for the reasons stated in the opinion of the district court.
Having concluded that Sloan had a registered design mark, the dis-
trict court turned to the issue of non-use, concluding that AEC pre-
sented sufficient evidence to show that Sloan had discontinued using
the registered mark for at least three consecutive years. Primarily, the
district court relied on Sloan’s deposition testimony that he had
"‘used the name Auditron with the line underneath it . . . up until
[1968] and then we changed it a little bit. Now we have . . . a pyramid
. . . with still the name on it.’" J.A. 1030. The court observed that the
record showed that Sloan had not used the registered mark for 30
years. Accordingly, the court concluded that AEC presented prima
facie evidence of abandonment, giving rise to the presumption that
Sloan had abandoned the mark.
When "the presumption is triggered, the legal owner of the mark
has the burden of producing evidence of either actual use during the
relevant period or intent to resume use." Emergency One, 228 F.3d at
536. In response to AEC’s motion for summary judgment, Sloan sub-
mitted an affidavit stating that Sloan "experimented with different
styles as it pertains to the name Auditron" but that he "continuously
used the name Auditron as it appears [in the principal register]." J.A.
943. Sloan claimed that his continuous use of the registered mark
included use "on wooden office signs and on various advertising
materials." J.A. 943. He did not present to the district court any evi-
dence, however, showing that the registered mark was so used. The
district court concluded that Sloan could not create a factual issue by
submitting an uncorroborated, conclusory affidavit that contradicted
earlier deposition testimony. The court also concluded that even if the
affidavit were true, at most it suggested that any continued use of the
mark was insufficient to qualify as a "bona fide use of a mark made
in the ordinary course of trade." 15 U.S.C.A. § 1127; see Emergency
6 SLOAN v. AUDITRON ELECTRONIC CORP.
One, 228 F.3d at 539 ("[T]he ‘use’ required to preserve trademark
rights does not include mere promotional or token uses.").
On appeal, Sloan resubmits the same argument rejected by the dis-
trict court. He claims that he produced sufficient evidence to create
a question of fact on the issue of non-use solely through his affidavit,
in which he claims that he used the registered mark on wooden signs
and advertising materials. We agree with the district court that Sloan
cannot create a factual question through an eleventh-hour affidavit
that contradicts his earlier, fuller deposition testimony that he stopped
using "‘the name Auditron with the line underneath it’" — that is, the
registered design mark — in 1968. J.A. 1030. Sloan executed the affi-
davit only after receiving AEC’s motion for summary judgment
which made clear the implications of his failure to use the stylized
mark precisely as registered. He proposes to create "[a] genuine issue
of material fact . . . where the only issue of fact is to determine which
of the two conflicting versions of the plaintiff’s testimony is correct,"
a proposition we have repudiated many times. Barwick v. Celotex
Corp., 736 F.2d 946, 960 (4th Cir. 1984); see Rohrbough v. Wyeth
Labs., Inc., 916 F.2d 970, 976 (4th Cir. 1990). He has pointed to noth-
ing else in the record to demonstrate his alleged continued use of the
registered mark as opposed to a different stylization of the name
Auditron. Therefore, we agree with the district court that Sloan has
not created an issue of fact regarding his continued use of the mark.
The district court recognized that even if the owner of a mark dis-
continues using the mark in its registered form, abandonment can be
avoided if the owner was using a variation of the mark where "‘the
continuing common element of the mark retains its impact and sym-
bolizes a continuing commercial impression.’" J.A. 1033 (quoting 2
J. Thomas McCarthy, McCarthy on Trademarks and Unfair Competi-
tion § 17:26 (4th ed. 1996)). The court concluded, however, that a
continuing commercial impression theory would be of no benefit to
Sloan because there was "no evidence demonstrating that the mark or
any permissible variation has been used continuously without signifi-
cant gaps." J.A. 1034. Sloan argues that the district court misapplied
this doctrine for purposes of summary judgment by concluding that
Sloan failed to present "continuing commercial impression" evidence
to rebut the presumption of abandonment. Instead, Sloan believes that
AEC, in order to establish a prima facie case of abandonment, must
SLOAN v. AUDITRON ELECTRONIC CORP. 7
show that the other stylizations used by Sloan did not create the same
continuing commercial impression. We reject this argument. AEC’s
evidence of non-use was sufficient, by itself, to trigger a presumption
that Sloan abandoned the mark; it was Sloan’s burden to rebut the
presumption. See Emergency One, 228 F.3d at 536. One way for
Sloan to have rebutted the presumption would have been to demon-
strate actual use of the mark under a continuing commercial impres-
sion theory; he did not do so. It is not AEC’s duty to make Sloan’s
argument for him and then negate it.
Finally, Sloan contends that even if the district court correctly con-
cluded that he had discontinued use of the registered mark, there was
sufficient evidence in the record of Sloan’s intent to resume use of the
mark to rebut the presumption of abandonment and preclude sum-
mary judgment. In support of this argument, Sloan highlights the affi-
davit that he executed in response to AEC’s motion for summary
judgment, as well as one executed at the same time by his son Scott.
According to Sloan’s affidavit, he intended to "maintain ownership"
of the mark and "never intended to discontinue the use of [the] trade-
mark." J.A. 943-44. Similarly, Scott Sloan attested that in 2000 Sloan
"sold his business to me, but he maintained ownership of the Auditron
trademark." J.A. 996. Sloan also contends that his renewal of the reg-
istration of his mark in 1987 demonstrates his intent to resume use of
the mark.
The district court properly rejected this argument. The court
observed that it is not enough for Sloan to have intended merely not
to relinquish ownership of the mark. To rebut the presumption of
abandonment, he must have evidence that he intended to resume
using the mark. The Fifth Circuit has noted the distinction:
There is a difference between intent not to abandon or relin-
quish and intent to resume use in that an owner may not
wish to abandon its mark but may have no intent to resume
its use. . . . An "intent to resume" requires the trademark
owner to have plans to resume commercial use of the mark.
Stopping at an "intent not to abandon" tolerates an owner’s
protecting a mark with neither commercial use nor plans to
resume commercial use.
8 SLOAN v. AUDITRON ELECTRONIC CORP.
Exxon Corp. v. Humble Exploration Co., 695 F.2d 96, 102-03 (5th
Cir. 1983). Therefore, "the owner of a trademark cannot defeat an
abandonment claim . . . by simply asserting a vague, subjective intent
to resume use of a mark at some unspecified future date." Emergency
One, 228 F.3d at 537. We agree with the district court that Sloan’s
affidavits do just that — attempt to avoid abandonment merely by
asserting a vague intention to resume use. We further agree with the
district court that Sloan’s renewal of his registration in 1987 is of no
avail. Sloan points to no concrete evidence that, in the fifteen years
that have passed since 1987, he made bona fide use of the mark or
even made plans to do so.
Accordingly, we affirm the district court’s opinion awarding sum-
mary judgment to AEC on Sloan’s infringement claim as a result of
Sloan’s abandonment of his registered mark. In light of this conclu-
sion, we need not reach the issue of whether, if Sloan had not aban-
doned the mark, AEC’s use of the name Auditron created a likelihood
of confusion with Sloan’s registered mark.
III.
Next, Sloan challenges the district court’s grant of summary judg-
ment to AEC on Sloan’s cybersquatting claim under the ACPA. Con-
gress enacted the ACPA to curb the increasing practice of
cybersquatting — "the practice of registering ‘well-known brand
names as Internet domain names’ in order to force the rightful owners
of the marks ‘to pay for the right to engage in electronic commerce
under their own brand name.’" Virtual Works, Inc. v. Volkswagen of
Am., Inc., 238 F.3d 264, 267 (4th Cir. 2001) (quoting S. Rep. No.
106-140 at 5-7 (1999)). A person is liable under the ACPA for cyber-
squatting if the person:
(i) has a bad faith intent to profit from [the] mark . . . ; and
(ii) registers, traffics in, or uses a domain name that —
(I) in the case of a mark that is distinctive . . .,
is identical or confusingly similar to that mark;
SLOAN v. AUDITRON ELECTRONIC CORP. 9
(II) in the case of a famous mark . . ., is identical
or confusingly similar to or dilutive of that mark.
15 U.S.C.A. § 1125(d)(1)(A); see Virtual Works, 238 F.3d at 267-68.
Regarding an alleged cybersquatter’s bad faith, the ACPA provides a
non-exhaustive list of nine factors for a court to consider, including
"the extent to which the domain name consists of the legal name of
the person or a name that is otherwise commonly used to identify that
person;" "the person’s prior use, if any, of the domain name in con-
nection with the bona fide offering of any goods or services;" and "the
person’s offer to transfer, sell, or otherwise assign the domain name
to the mark owner or any third party for financial gain without having
used . . . the domain name in the bona fide offering of any goods or
services." 15 U.S.C.A. § 1125(d)(1)(B)(i).
We agree with the district court that Sloan’s claim under the ACPA
fails because, at the very least, he presented no evidence to establish
bad faith on the part of AEC in registering the domain name
auditron.com. We affirm for the reasons stated by the district court in
its opinion:
There is no evidence in this case that AEC had a bad faith
intent to profit from Sloan’s mark. AEC has operated under
the trade name "Auditron Electronics Corporation" since
1978, and the record evinces that it obtained a legal opinion
from its attorney prior to using the name "auditron."
Although aware of Sloan’s mark, its attorney advised AEC
that there was no likelihood of confusion between its use of
the word "auditron" and Sloan’s use. While, over time, its
focus has changed from manufacturing and distributing high
fidelity speakers to manufacturing and distributing a man-
agement software product, its broad articles of incorporation
permitted this change.
. . . [AEC’s] niche of medical billing, specifically involv-
ing a product that enables healthcare providers to submit
claims to third party payers, is sufficiently dissimilar from
the general accounting, bookkeeping, and tax services for
which Sloan claims to have used his mark. Moreover, in
1998, AEC had a legitimate reason for registering
10 SLOAN v. AUDITRON ELECTRONIC CORP.
AUDITRON.COM as its domain name, after having used
the trade name, "auditron," for approximately 20 years. AEC
legitimately uses its website to sell its specialized product,
ZyMed, and has not offered to sell the website to others.
. . . [T]here is no evidence that AEC actually attempted,
or even contemplated an attempt, to sell the domain name
to Sloan or anyone else.
J.A. 1051-53.
IV.
For the reasons set forth above, we hereby affirm the opinion of the
district court.
AFFIRMED
| {
"pile_set_name": "FreeLaw"
} |
June 24, 1954
Hon. John H. Winters ODiniOn No. S-129
Executive Director
State Department of Re: Effect Of H.B. 89, Ch. 58,
Public Welfare Acts 53rd Leg., 1st C.S.,
Austin, Texas on Federal old-age and sur-
vivor's insurance coverage
for employees of political
Dear Mr. Winters: subdivisions of the State.
You have requested an opinion relative to the effect of House
Bill No. 89, Chapter 58, Acts of the 53rd Legislature, First Called Ses-
sion, 1954, on the authority of the State Department of Public Welfare
to enter into agreements with governing bodies of political subdivisions
of the State for Federal old-age and survivor's insurance coverage.
Federal old-age and survivor's insurance coverage for certain
county and municipal employees was originally authorized by Chapter 500,
Acts of the 52nd Legislature, 1951 (codified as Article 695g in Vernon's
Civil Statutes). Chapter 197, Acts of the 53rd Legislature, Regular Ses-
sion, 1953, amended all appropriate sections of the original act so as to
extend the coverage to "other political subdivisions" in addition to coun-
ties and municipalities. Section 4 of Article 695g, as amended in 1953,
read:
"The State Agency [State Department of Public Welfare]
is authorized to enter into agreements with the governing
bodies of counties and with the governing bodies of munici-
palities and with the governing bodies of other political
subdivisions of the State which are eligible for Social
Security coverage under Federal law when the governing
body of any such counties or municipalities or other po-
litical subdivisions desire to obtain coverage under the
old-age and survivor's insurance program for their employ-
ees, these agreements to embrace such provisions relating
to coverage benefits, contributions, effective date, mod-
ification and termination of the agreement, administration,
and any other appropriate matters consistent with the Con-
stitution and laws of Texas as the State Agency and the
governing body of the county, municipality or other polit-
ical subdivision shall agree." (Emphasis indicates changes
made by the 1953 amendment.)
Hon. John H. Winters, page 2 (S-129)
This statute was again amended by Chapter 58, Acts of the
53rd Legislature, First Called Session, 1954. The caption of Chapter
58 recited that it was amending the existing statute
II
. * . so as to provide for the additional coverage
of certain persons who are fully paid their salaries from
Federal Funds of the United States, but who are classified
by the United States Government as State Employees; provid-
ing that all provisions of the laws governing participation
in social security benefits shall apply to these persons,
except that no matching contribution will ever be paid by
the State of Texas; authorizing the Adjutant General of
Texas and the State Department of Public Welfare to nego-
tiate all necessary agreements between themselves and with
the United States; and declaring an emergency."
Chapter 58 changed the definition of "employee" in Section
1 of Article 6959 by adding the language following the semicolon, mak-
ing the definition read:
"(c) The term 'employee' includes an officer of a
county, municipality, or other political subdivision of
the State; also the word 'employee' shall include any
State Bmployee or officer who is paid wholly from United
States funds and would be a Federal employee except for
classification as a State employee by the Federal Govern-
ment."
Chapter 58 also made two changes in Section 4 of Article 6959: (1) it
added a sentence authorizing agreements for coverage of State employees
whose salaries are paid wholly from United States funds;~(2) it omitted
all references to "other political subdivisions." The text of Section 4,
except for the sentence which was added, was identical with the text of
the original 1951 act.
In view of the fact that Chapter 58 retained "other political
subdivisions" in the definition of "employee," the only reasonable ex-
planation for the omissions in Section 4 IS that this portion of Chapter
58 was inadvertently copied from the original 1951 act instead of being
copied from the 1953 amendment. However, it is not necessary for us to
rule on the effect of a mistake in drafting or on the implied authority
from other sections of Article 695g to enter into agreements respecting
employees of other political subdivisions. In our opinion, the omission
of reference to other political subdivisions in Section 4 as amended by
Chapter 58 was clearly ineffectual to repeal the existing authority since
this change was not expressed in the title of Chapter 58.
:., Section 35 of Article III of the Texas Constitution requires
thatthe subject of a legislative act be expressed in its title, and
further provides that "if any subject shall be embraced in an act, which
shall not be expressed in the title, such act shall be void only as to so
.
Hon. John H. Winters, page 3 (S-12.9)
much thereof, as shall not be so expressed." The rule applicable to titles
of amendatory acts is stated in 39 Texas Jur~isprudence,Statutes, § 48, as
follows:
"In addition to the statement of a purpose to amend :I
given law or provision, a title may specify the nature of the
amendment, and when it does so the body of the act must con-
form. A title that specifies the particular field an amend-
ment is to cover or states a purpose to make a certain char&e
in the prior law, and that is not merely descriptive of the
matters to which the law relates, limits the amendatory act
to the making of the change designated and precludes any
additional, contrary or different amendment. Thus a title
that expresses a purpose to change a prior law by adding or
extending a provision or conferring a right does not warrant
an amendment that omits or restricts a provision of the orig-
inal act or destroys a previously existing right. . . .
"A title expressing a purpose to amend a statute in a
certain particular is deceptive and misleading in so far as
the body of the act purports to amend the prior law in other
particulars. The amendatory act is void to the extent that
its provisions go beyond express limitations or the scope
of the title."
The title of an amendatory act which undertakes to specify the
particular field of amendment must give notice of changes resulting from
omissions and deletions in the statute being amended. Ward Cattle & Pas-
ture Co. v. Carpenter, 109 Tex. 103, 200 S.W. 521 (1918); Lone Star Gas
Co. Y. Birdwell, 74 S.W.2d 294 (Tex,Civ.App. 1934); Att'y Gen. Op. S-119
(1953)-
The title of Chapter 58 states a purpose to make a certain
change in the prior law, namely, to extend coverage to certain State
employees. It does not give notice that the amendment omits employees
of "other political subdivisions." The effect of the enactment of Chapter
58 was to leave these omitted provisions in force as they existed prior
to its enactment. Accordingly, you are advised that the State Department
of Public Welfare may legally continue entering into agreements with the
governing bodies of "other political subdivisions" of the State respecting
Federal old-age and suvivor's insurance for their employees.
The title of House Bill NO. 89, Chapter 58, Acts of
the 53rd Legislature, First Called Session, 1954, does not
give notice of the omission of "other political subdivisions"
from Section 4 of Article 695g, V.C.S., as amended therein,
and the omission is ineffectual to repeal the existing
authority of the Texas Department of Public Welfare to enter
Hon. John H. Winters, page 4 (S-129)
into agreements with govening bodies of other political
subdivisions respecting Federal old-age and survivor's
insurance coverage for their employees. Tex. Const. Art.
III, Sec. 35.
APPROVED: Yours very truly,
W. V. Geppert JOHN BEN SREPPERD
Reviewer Attorney General of Texas
John Atchison
Reviewer
K tbcu&
BY v
Burnell Waldrep Mary K. Wall
Appellate Assistant Assistant
John Ben Shepperd
Attorney General
| {
"pile_set_name": "FreeLaw"
} |
260 F.2d 431
Herbert MILBERTv.BISON LABORATORIES, Inc., and The Baltimore and Ohio Railroad Company.
United States Court of Appeals Third Circuit.
Submitted October 20, 1958.
Decided October 28, 1958.
Suto, Power, Goldstein & Walsh, Marvin D. Power, Pittsburgh, Pa., for plaintiff.
Meyer, Darragh, Buckler & McDonnell, Kim Darragh, Pittsburgh, Pa., for defendant Bison.
Before BIGGS, Chief Judge, and MARIS, GOODRICH, McLAUGHLIN, KALODNER, STALEY and HASTIE, Circuit Judges.
MARIS, Circuit Judge.
1
Bison Laboratories, Inc., one of the defendants in a civil action pending in the United States District Court for the Western District of Pennsylvania, has made application to this court for permission to appeal from the order of that court entered September 24, 1958, refusing its motion to quash the service of summons and dismiss the action. The application is stated to be made under section 1292(b) of title 28 United States Code, as added by the Act of September 2, 1958, Public Law 85-919, 72 Stat. 1770, which provides as follows:
2
"(b) When a district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, he shall so state in writing in such order. The Court of Appeals may thereupon, in its discretion, permit an appeal to be taken from such order, if application is made to it within ten days after the entry of the order: Provided, however, That application for an appeal hereunder shall not stay proceedings in the district court unless the district judge or the Court of Appeals or a judge thereof shall so order."
3
It is quite apparent from the legislative history of the Act of September 2, 1958 that Congress intended that section 1292(b) should be sparingly applied. It is to be used only in exceptional cases where an intermediate appeal may avoid protracted and expensive litigation and is not intended to open the floodgates to a vast number of appeals from interlocutory orders in ordinary litigation. Both the district judge and the court of appeals are to exercise independent judgment in each case and are not to act routinely. Thus in the report of the Committee on the Judiciary of the House of Representatives on the bill it is stated:
4
"Congress, in the past, has recognized the necessity for and now permits a right of appeal from interlocutory orders in a limited number of cases. Section 1292 of title 28 United States Code, permits appeals from interlocutory or nonfinal orders in certain types of receivership actions, admiralty decrees and patent cases as well as from orders granting or denying injunctive relief. There are, however, other kinds of cases where interlocutory appeals are needed. There should be some way, for example, in long-drawn-out cases such as antitrust and conspiracy cases, to dispose of vital questions which are raised in the trial without having to wait for the taking of testimony and the conclusion of the trial before the questions can be finally determined on appeal. Without cataloging all of the cases in which interlocutory appeals could be proper, the following categories are those which would generally be affected: (a) cases where an accounting is necessary upon an adjudication of liability under a contract, (b) cases where a long trial would be necessary for the determination of liability or damages upon a decision overruling a defense going to the right to maintain the action, (c) cases involving third party defendants where there would be no reason for continuing the actions if the third parties could not be held liable and (d) causes relating to the transfer of the action where it is claimed that the transfer is not authorized by law.
5
"It is felt that the instant bill, in permitting appeals in nonfinal orders, will not only save protracted and expensive litigation, but, with its built-in safeguards, prevent numerous and groundless appeals to our appellate courts. To begin with, before an appeal can be had, the district court must certify in writing that the order involves a controlling question of law and that an immediate appeal may materially advance the ultimate determination of the case. In addition, the court of appeals must also be of the same opinion before the appeal can be had. To prevent dilatory tactics, the bill further provides that there shall be no stay of proceedings in the district court unless either the district court or one of the judges of the court of appeals or the court itself orders a stay.
6
"There is made a part of this report a report to the Judicial Conference of the United States, which sponsors this legislation. Your committee adopts with approval the view contained therein that appeals under this legislation should only be used in exceptional cases where an intermediate appeal may avoid protracted and expensive litigation and is not to be used or granted in ordinary litigation wherein the issues raised can otherwise be properly disposed of."1 [Emphasis supplied.]
7
And in the report made on the bill by the Committee on the Judiciary of the Senate it is said:
8
These examples give some indication of the desirability of this legislation. However, while it may be desirable to permit appeals from any interlocutory order in certain instances, the indiscriminate use of such authority may result in delay rather than expedition of cases in the district court. Obviously, such appeals should not be allowed if they are filed solely for the purpose of delay or are based upon spurious grounds. In order to eliminate such appeals the bill is cast in such a way that the appeal is discretionary rather than a matter of right. It is discretionary in the first instance with the district judge for he must state in writing as a part of his order that it is his opinion that the order involves a controlling question of law concerning which there is substantial doubt and he must further state that an immediate appeal from the order may materially advance the ultimate termination of the litigation.
9
"The application for such an appeal is also discretionary with the litigant since he must make the application, though it is considered likely that, upon the issuance of such a statement in an order by the district judge, counsel would ordinarily file such an application with the appropriate circuit court of appeals.
10
"The granting of the appeal is also discretionary with the court of appeals which may refuse to entertain such an appeal in much the same manner that the Supreme Court today refuses to entertain applications for writs of certiorari.
11
"It should be made clear that if application for an appeal from an interlocutory order is filed with the court of appeals, the court of appeals may deny such an application without specifying the grounds upon which such a denial is based. It could be based upon a view that the question involved was not a controlling issue. It could be denied on the basis that the docket of the circuit court of appeals was such that the appeal could not be entertained for too long a period of time. But whatever the reason, the ultimate determination concerning the right of appeal is within the discretion of the judges of the appropriate circuit court of appeals.
12
"Another protection against delay which is contained in this legislation is the provision which requires a litigant to make application within 10 days after the entry of the order if he desires to take such an appeal. A further protection against delay is contained in the provision which requires that application for an appeal pursuant to this legislation will not stay proceedings in the district court unless such a stay is ordered by the district judge, the court of appeals, or a judge thereof.
13
"The committee believes that this legislation constitutes a desirable addition to the existing authority to appeal from interlocutory orders of the district courts of the United States. It has been a matter of considerable notoriety that many of the district courts of the United States have a substantial backlog of cases. Some of these backlogs are so severe as to require litigants to await trial for a period up to 4 years. The substantial delay in the trial of such cases may often result in the denial of justice. Any legislation, therefore, appropriately safeguarded, which might aid in the disposition of cases before the district courts of the United States by saving useless expenditure of court time is such as to require the approbation of all those directly concerned with the administration of justice in the United States. The committee believes that this is such a proposal and that its utilization may well prove of considerable benefit in the disposition of cases before the district courts. The committee, however, desires to point out that the ultimate success of a proposal such as this must, in the final analysis, depend upon the wisdom of the judges who must administer it, and the good faith of the litigants who utilize it. If the discretion which this legislation affords is properly used, the procedures of this legislation should result in improving the administration of justice within the Federal court system. For these reasons, the committee believes that the legislation is desirable and should be favorably considered."2 [Emphasis supplied.]
14
We think that the conclusion is inescapable that the conditions precedent to the granting by this court of permission to appeal which are laid down by the new section 1292(b) are to be strictly construed and applied. It will be observed that the new law lays down two such conditions which must be complied with before the court of appeals may entertain an application for permission to appeal from an otherwise unappealable order of the district court, such as the one here sought to be appealed from. The first is that the district judge making the order sought to be appealed from shall have stated in writing "in such order" that in his opinion "such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation." And the second is that the application for permission to appeal must be made to the court of appeals "within ten days after the entry of the order" sought to be appealed from.
15
In the present case neither condition has been complied with. In the first place the order sought to be appealed from does not contain the statement by the district judge which the law requires. On the contrary, no such statement was made by the district judge until October 7, 1958, 13 days after the entry of the order sought to be appealed from and 3 days after the statutory time for making application to this court for permission to appeal had expired. And in the second place the application itself was not presented to this court until October 14, 1958, 10 days after the expiration of the period of 10 days limited by the statute for doing so.
16
We do not overlook the fact that under Rule 59(e) of the Federal Rules of Civil Procedure, 28 U.S.C.A., the district court has the power to amend an order pursuant to a motion served not later than 10 days after entry of the order, and that under Rule 73(a) the running of the time for appeal is terminated by a timely motion to amend made pursuant to Rule 59(e) and the time for appeal commences to run and is to be computed from the entry of the order granting or denying the motion to amend. It is entirely possible, therefore, that, upon a motion served within 10 days after the entry of an interlocutory order, the district judge might amend that order by inserting therein his statement that the order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, if in the exercise of his independent judgment he should conclude this to be true. It would seem clear that if the district judge should thus amend his prior order on timely motion the running of the period of 10 days for making application to the court of appeals for permission to appeal would be tolled and would commence to run again from the date of entry of the order of amendment. But this cannot avail the present applicant since the district judge's order of October 7, 1958 in this case did not purport to amend the order of September 24, 1958 here sought to be appealed from and in any event it was not made on a timely motion to amend that order but rather on a motion by defendant's counsel for the review of the order by the United States Court of Appeals for the Third Circuit, a motion which could not enlarge the statutory period of 10 days for making application to this court for permission to appeal from the order in question.
17
The application for permission to appeal will accordingly be dismissed.
Notes:
1
House Report No. 1667, 85 Cong.2d Sess., pp. 1, 2
2
Senate Report No. 2434, 85 Cong.2d Sess., pp. 3, 4
| {
"pile_set_name": "FreeLaw"
} |
46 Cal.4th 1053 (2009)
THE PEOPLE, Plaintiff and Respondent,
v.
RICHARD WADE FARLEY, Defendant and Appellant.
No. S024833.
Supreme Court of California.
July 2, 2009.
*1059 Ezra Hendon, under appointment by the Supreme Court, and David L. Saine for Defendant and Appellant.
Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Robert R. Anderson and Dane R. Gillette, Chief Assistant Attorneys General, Ronald A. Bass and Gerald A. Engler, Assistant Attorneys General, Ronald S. Matthias, Nanette Winaker and Michael E. Banister, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
GEORGE, C. J.
A jury convicted defendant Richard Wade Farley of the first degree murders of Joseph Silva, Wayne Williams, Glenda Moritz, Ronald Reed, Helen Lamparter, Ronald Doney, and Lawrence Kane (Pen. Code,[1] §§ 187, 189), the attempted murders of Greg Scott, Richard Townsley, Randell Hemingway, William Drake, and Karen Mackey (§§ 187, 664), assault with a firearm upon Laura Black (§ 245, subd. (a)(2)), second degree burglary (§ 459; former § 460, subd. (2), now § 460, subd. (b)), and felony vandalism (former § 594, subd. (b)(1)). The jury found true the special circumstance allegations that six of the murders were committed while defendant was engaged in the commission or attempted commission of a burglary (§ 190.2, subd. (a)(17)(vii), now § 190.2, subd. (a)(17)(G)), and that defendant was convicted of at least one crime of first degree murder and one or more crimes of first or second degree murder. (§ 190.2, subd. (a)(3)). The jury also found true the allegations that all five counts of attempted murder were willful, deliberate, and premeditated (§ 664, subd. (f)), the allegations pertaining to all counts of murder and attempted murder that defendant personally used a firearm (§§ 1203.06, 12022.5, subd. (a)), and the allegations regarding defendant's personal infliction of great bodily injury on Scott, Townsley (§§ 12022.7, 1203.075), and Black (§ 12022.7). Following the penalty phase of the trial, the jury returned a verdict of death. The trial court denied defendant's motion for a new trial (§ 1181), and the automatic application for modification of the verdict (§ 190.4, subd. (e)). The court entered a judgment of death and also imposed sentence on the noncapital offenses. This appeal is automatic. (Cal. Const., art. VI, § 11; Pen. Code, § 1239, subd. (b).) For the reasons that follow, we affirm the judgment.
*1060 I. FACTUAL BACKGROUND
A. Guilt phase evidence
1. Prosecution evidence
a. Summary
In 1984, while employed at Electromagnetic Systems Laboratory (ESL) in Sunnyvale as a computer technician, defendant became obsessed with coemployee Laura Black. His unwelcome pursuit of Black, and his belligerent and threatening responses to ESL's attempts to stop his harassment of her, led to his termination from ESL in 1986. He continued stalking and harassing Black, and threatened violence against others. In 1988, Black obtained a temporary restraining order (TRO) against defendant. During the approximately two-week period between the issuance of the TRO and the date scheduled for a hearing regarding a permanent injunction, defendant purchased a semiautomatic shotgun and large amounts of ammunition, visited shooting ranges to practice, and put his affairs in order. On February 16, 1988, the day before the scheduled court hearing, he went to the ESL facility where he had worked, shot and killed seven people, and wounded four others, including Black. At trial, defendant conceded responsibility for the seven deaths, but claimed the shootings were not premeditated, and that defendant "did not go to ESL to injure people or to destroy anything."
b. Events prior to February 16, 1988
Laura Black testified concerning defendant's efforts to establish a personal relationship with her. She recalled that they met in the spring of 1984. Soon thereafter, defendant invited her to socialize with him, but she declined. Defendant continued to extend social invitations to her without success, to call her on the telephone, to leave her gifts, and to attend her aerobics classes and company softball games. Black testified that she changed her residence three times between July 1985 and February 1988, but defendant obtained her new address each time, and surreptitiously obtained a key to one of these residences. Between the fall of 1984 and February 1988, she received approximately 150 to 200 letters from defendant, including two letters he sent to her parents' home in Virginia where she was visiting in December 1984. She had not provided him with her parents' address.
Various employees of ESL attempted to stop defendant's harassment of Black, and defendant reacted either defiantly or by threatening to commit violent acts. Jean Tuffley, who was employed in ESL's human resources department, testified that she met with defendant in October 1985 regarding *1061 Black's complaints of harassment. Defendant agreed at the meeting to cease sending letters and gifts to Black, following Black home, and using her computer terminal, but in December 1985 he again wrote to Black, threatening to visit her and her roommate. Tuffley testified that she and defendant's supervisor, Charles Lindauer, met with defendant in December 1985 and January 1986, and ESL issued defendant a written warning after each meeting.
After the January 1986 meeting with Tuffley and Lindauer, defendant confronted Black at her residence's parking lot. Black testified that defendant mentioned guns, told her he no longer was going to ask Black what to do and said he was going to tell her what to do. Black further testified that the weekend after this encounter, she received a letter from defendant stating he would not kill her, but referencing "a whole range of options, each getting worse and worse." The letter warned, "I do own guns and I'm good with them," and asked her not to "push" him. It indicated that if neither of them yielded, "pretty soon I crack under the pressure and run amok destroying everything in my path until the police catch me and kill me." It also stated, "You know I'm serious when I show you a letter like this."
In mid-February 1986, Tuffley testified, defendant stopped by her office and told her that ESL had no right to control his relationships with other individuals. Tuffley responded that sexual harassment is illegal, and that if defendant did not leave Black alone, his conduct would lead to his termination. Tuffley testified that defendant calmly said, "if we terminated him . . . he'd have nothing to live for, and that he had guns and he wasn't afraid to use them, and . . . it would be over for him and he'd take people with him." Tuffley asked, "Rich, are you saying that you would kill me?" Defendant said, "Yes, but I would take others too." Tuffley spoke to her supervisor, John Allen about her meeting with defendant and her fear of what he might do. Thereafter, Tuffley explained, she did not interact with defendant; instead, Allen communicated directly with defendant.
In late February or March 1986, Evor Vattuone, an ESL laboratory manager, met with defendant at defendant's request. Vattuone testified that defendant was concerned about the possibility that Black would obtain a restraining order. Vattuone told defendant he understood defendant had been bothering Black, and it would be good if defendant stopped. Defendant told Vattuone he had every right to see Black anywhere, and described following Black home, driving by her home, and attending her softball games. Vattuone told defendant this conduct was jeopardizing his job, and that Black was on "the verge of getting a restraining order." Defendant said he would be very upset if he received a restraining order, and did not know how he would respond. Vattuone testified that he asked defendant what he meant, and *1062 defendant said, "he had guns and he wasn't afraid to use them." Vattuone understood that defendant was telling him he was ready to use guns, and he was going to get his own way "no matter what."
In March or April of 1986, Lloyd Bass, defendant's supervisor at ESL, told Dennis Elliott, defendant's former supervisor at ESL, that Bass had a problem with defendant leaving his work area and "chasing some girl." Elliott testified that Bass asked him to speak to defendant. A few days later, Elliott told defendant he had learned that the human relations department was involved in a situation in which defendant was "`hassling' a girl over at [ESL building] M-5 during working hours." Elliott told defendant that "it could cost him his job, it could cost him his clearances . . . . He needed to be at his duty station and he should just do his job." Elliott testified that defendant was "really angry" and claimed, "I don't care. They can't hurt me. I'm not afraid of them."
On May 2, 1986, ESL terminated defendant's employment, effective immediately. Following his termination, defendant continued to write and place telephone calls to Black and to attend Black's softball games and aerobic classes, and he frequently was seen in or near the ESL parking lot. At the end of the summer or early fall of 1986, defendant began dating Mei Chang, but he continued to harass Black. On July 10, 1987, he wrote to Black, warning her not to obtain a restraining order. His letter stated, "It might not really occur to you how far I'm willing to go to upset you if I decide that's what I'm forced to do." In early October 1987, he wrote to Black, "I've nothing else to lose now but my life, so don't try pushing me any further."
In November 1987, Thomas Burch, a longtime friend who had worked with defendant at ESL, spoke with him. Burch testified that defendant was upset and worried, but not depressed. Defendant told Burch that he owed the Internal Revenue Service (IRS) between $25,000 and $30,000 and that the IRS was about to attach his wages.[2] He also said that if the IRS was not willing to "give him some slack, that he didn't have anything or he didn't have much to live for." Defendant brought up the shooting massacre at a McDonald's restaurant in San Ysidro, and said, "I wonder what they would do or what they would think if I did something like that." Burch interpreted "they" to mean ESL, and did not take defendant seriously.
That same month, defendant wrote to Black, warning, "This is going to escalate," because, he believed, she thought he was "a joke." He advised her not to show his letters to anyone, because they might "do something stupid *1063 which would make me do something stupid and it would spiral beyond any hope of recovery." In December 1987, he asked in a letter to Black, "[D]o you believe I can make you pay attention to me?"
That same month, the topic of "shoot[ing] up" ESL was discussed during a conversation defendant had at a delicatessen with Gerald Hirst and homicide victim Lawrence Kane. Hirst believed he was being forced to resign from ESL, and the three men discussed ESL's management practices. Hirst testified that defendant inquired whether "his girlfriend" Black was still at ESL and where her office was located, and Kane provided him with directions. The conversation returned to ESL's management, and Hirst said, "What's it going to take to wake them up, some madman to come in there to shoot the computers, shoot the place up?" Hirst testified that as he left the table to get more coffee, he heard defendant say, "I might do it." When Hirst returned, Kane asked him whether the glass in the ESL Mardex security doors was bulletproof. Hirst said he did not think so. Defendant said, "Then double-aught buck would take care of that glass, wouldn't it?" Hirst agreed. According to Hirst, the three of them "fantasized and laughed and joked, about how funny it might be to go in [to] the company and shoot up the equipment." Hirst was interested in investigating job opportunities at defendant's current employer, and gave defendant directions to his office at ESL.[3]
In January 1988, ESL employee Robert Peterson confronted defendant, who was parked outside of ESL, and asked him to stop harassing Black. Peterson testified that he told defendant something to the effect, "If you continue doing this, you may have to go to jail." Defendant responded that Peterson was "only making things worse." On January 23, 1988, approximately three weeks before the attacks, Black received a letter from defendant describing his encounter with Peterson and instructing her, "You'd better tell him to mind his own business. . . . [¶] He doesn't have any idea what he's getting into. You'd better tell him, I'd better never see any police around me."
On February 2 or 3, 1988, Black obtained a TRO against defendant. The hearing regarding a permanent injunction was scheduled for February 17, 1988, the day after the crimes were committed. Black also sought $1,000 in attorney fees. Black's attorney, Mary Bird, and Bird's receptionist and office manager, Ruth Day, testified that on or about February 9, defendant delivered a letter to Bird, claiming that, contrary to the declaration supporting the TRO, he had a relationship with Black. He claimed to possess proof of this relationship, such as photographs of Black and defendant on dates, a garage door opener to Black's house, and hotel and credit card receipts. On February *1064 10, 1988, Bird prepared a notice in lieu of subpoena, requiring defendant to bring these items to court on February 17.
In the meantime, defendant visited Bighorn Sporting Goods and asked Frank Janik, the store manager, to see something with "high-capacity fire power." Janik further testified that approximately one week later, on February 11, defendant returned to the store and purchased a Benelli riot configuration semiautomatic shotgun and ammunition. He paid by check, which later was returned for insufficient funds. According to Janik, defendant was "very calm" when he purchased the weapon. The same day, according to David Walker of Target Masters West, defendant rented a shooting lane at the shooting range, requested six silhouette or "man-shaped" targets, and purchased 13 boxes of shotgun and pistol ammunition. Walker further testified that the next day, defendant purchased 1,000 rounds of .357 magnum handgun ammunition, one box of nine-millimeter hollow-point handgun ammunition, and three boxes of .380 hollow-point handgun ammunition.
Approximately one week before the commission of the crimes, defendant spoke to Carolyn Gagnon, a secretary for Father Rewak, the president of Santa Clara University, where Black was enrolled. Gagnon testified that defendant provided his name, and insisted upon seeing Father Rewak. Gagnon told defendant that Father Rewak was not in, and asked him whether he wished to leave a message. Defendant declined, stating it did not matter anyway, because Father Rewak was always going to remember his name. Gagnon testified that defendant was cocky when he said this, and displayed a sarcastic smile.
Anthony Thurman of Homes Away From Home testified that on February 12, four days before the commission of the crimes, defendant visited the business and discussed renting a motor home. Defendant returned that afternoon to fill out rental forms. Catherine Mary Evangelista, the personnel supervisor for defendant's employer, Covalent, testified that, also on February 12, defendant eliminated Black as a beneficiary of two life insurance policies, and made Mei Chang the sole beneficiary. Defendant was adamant the change had to be completed that day.
Chang testified that very shortly before defendant was arrested, she and defendant rented a storage locker in Chang's name. Defendant and a friend, Jerome Kaercher, moved some of defendant's belongings to a storage locker on either February 14 or 15. Kaercher testified that defendant "seemed extremely happy." That same weekend, defendant moved belongings from the home of Lora Glaser, a former rental property that he had vacated in October 1987. Glaser testified that defendant seemed "upbeat, busy, productive, like he was getting something done."
*1065 On February 15, defendant was seen by off-duty Santa Clara County Deputy Sheriff Larry Imas at the Santa Clara County public shooting range, where Imas was employed on a part-time basis. Imas testified that defendant asked to purchase .22-250 ammunition, but there was none in stock. The same day, defendant completed the paperwork for the motor home he had rented, and took possession of it. Thurman testified that defendant did not behave out of the ordinary on this last visit to Homes Away From Home. He also testified that defendant's check for the rental subsequently was returned for insufficient funds. San Jose State University Professor John Avila, Jr., testified that on the evening of February 15, defendant told him that he was going to Southern California and would not be in class on Wednesday, February 17.
c. Events on February 16, 1988
On Tuesday February 16, 1988, at approximately 8:00 a.m., defendant entered the accounting department of Covalent and asked for his paycheck. Linda Emerson, the accounting manager, testified she told defendant the checks would be available at 10:00 a.m. When defendant was asked why he needed his check at 8:00 in the morning, he replied that "he had to go buy a gun." Early in the afternoon, defendant visited the Santa Clara County public shooting range. Imas testified that he mentioned to the range owner and the supplier that defendant had been looking for .22-250 ammunition, and defendant showed them he had since acquired several boxes of the ammunition.[4]
About 2:50 p.m., defendant arrived in the Coachman motor home at ESL's offices in Sunnyvale. He walked to ESL's two-story M-5 building with a shotgun in his hands, rifles strapped over his body, and approximately four bandoliers of ammunition strapped to his body. He shot and killed ESL employee Lawrence Kane in the parking lot. He then fired at Randell Hemingway, who safely ducked behind his car door. Defendant shattered glass in the Mardex security doors to M-5 by firing one of his weapons. Inside the building, he shot and killed six persons and wounded four others, including Black. The precise sequence of events is unclear, but the evidence established that defendant generally walked slowly and deliberately through the building, shooting his victims at various locations in the facility. In addition to committing these assaults, defendant fired at computer equipment and parts of the building.[5]
*1066 The first report of the incident to a 911 operator was received at 2:53 p.m. At approximately 3:15 p.m., a man identifying himself as Richard Farley placed a call on an inside emergency telephone line. He told Robert Mancebo, an ESL security hardware repairperson, "I'm the one who has been wasting all these people." Mancebo testified that defendant also said he was calling "to let us know why he was doing it, and that he wanted a recorder" so there would be a permanent record. Defendant said he was "doing it . . . because of Laura Black and because of her lawyer and what they were doing." Mancebo asked if defendant was going to kill anyone else, and he said no, he was "just shooting up equipment." Defendant terminated the call, but placed a second call on ESL's emergency telephone line a few minutes later. He wanted to talk to the police, but no officers were in the security room at that time. Mancebo and defendant had one or two more separate telephone conversations. During the last call, Mancebo could think of nothing else to say, so he handed the telephone to ESL security officer Devin Matlock. Defendant told Matlock that he had told Black he would do something like this if her attorney obtained a restraining order. Defendant also said he had a high-powered rifle, and that Matlock should keep people 300 yards from the building. Matlock testified defendant did not sound depressed or agitated, but seemed as if he was anticipating that something interesting would be happening.
At approximately 3:20 p.m., facilities engineering manager John Kitching received a call on an ESL emergency telephone line from a man who identified himself as "Rich." The caller said, "Tell Mei Chang I'm sorry. I just got Laura." He also said, "I've got plenty of ammunition. It will all be over at 5 o'clock."
At approximately 3:30 p.m., Captain Albert Scott of the Sunnyvale Department of Public Safety spoke to defendant. Defendant seemed to him to be a "little bit excited." When Scott asked defendant whether he had killed anyone, defendant said he had shot three or four individuals on the top floor but did not know how many were dead. Defendant also said that Black had gone too far and that he had "done this" to make a point. He said she had belittled him, and he was getting even. At one point, Scott asked whether defendant would surrender his guns and come down, and defendant said, "No, I'm not ready yet. I want to gloat a little bit."
At approximately 3:35 p.m., a caller who identified himself as "Rich" told ESL telephone installer Robert Costanzo, who was assisting in answering the telephones, that he had an assault rifle, a shotgun, and some handguns, and enough ammunitionif he fired continuouslyto last for two hours. According to Costanzo, the caller was very clear and calm.
*1067 During one of defendant's telephone conversations on the afternoon of February 16, Linda Walden, defendant's longtime friend and former landlady, who also worked at ESL, was hiding under the desk at which defendant was standing. Defendant pulled out the chair, and said, "Oh, there's someone here. You can come out now. Oh, it's Linda." When she emerged, he calmly told her she could leave. Christine Hansen, who was hiding nearby, assumed it was the police evacuating the building. She left her hiding place and encountered defendant. She asked, "Can I go, too?" Defendant said, "Yes, you can go." Hansen testified that defendant's tone was "regular," and he was not angry or crying.
Lieutenant Ruben Grijalva of the Sunnyvale Department of Public Safety, an expert in hostage negotiations, negotiated by telephone with defendant from approximately 3:30 p.m. until he agreed to surrender at approximately 8:30 p.m. Defendant terminated the telephone communication with Grijalva several times to prevent the police from tracing the call. The initial portion of the negotiations was not recorded, but Grijalva took notes. According to Grijalva, in the initial conversations defendant was "quite excited," but his voice was not incoherent or slurred. After approximately 30 to 45 minutes, "his demeanor was much more calm, much more deliberate . . . ."
Defendant asked Grijalva to tell Black that her attorney and Bob Peterson had given her bad advice, and that "he was sorry that they weren't there, too." Defendant told Grijalva that he was due to appear in court the next day, that Black had filed a lawsuit against him, and that all he wanted to do was date her. According to defendant, "Had she gone out with him one time, none of this would have happened." He said he had gone to the second floor and shot Black, and he wanted her to live and to remember what had occurred. He said "he knew what he had done was wrong and that he had to die because of it." He constantly spoke of killing himself, or having the police kill him, but expressed fear the police only would wound him, and "he didn't want to suffer."
Grijalva testified defendant "indicated that he was real good with guns" and "had several pistols and a high powered rifle and a shotgun with him." When defendant mentioned target shooting, Grijalva inquired whether he was interested in hunting. Defendant replied, "I'd rather kill people than animals. It's not sporting to shoot animals." When Grijalva asked how many individuals had been shot, defendant said there were "three or four lying around the first floor and that everybody on the second floor was dead." Defendant said he was "not crazy and that he knew what he had done but he had to do it, he had to make a point." He told Grijalva that he almost changed his mind when he arrived at the parking lot, but that "it had to be done and he didn't want Laura Black to think that he was a wimp." He told Grijalva he had thought about doing this when he first received a notice to appear in court.
*1068 Defendant asked Grijalva to tell his mother and father he was sorry. He stated he was not sorry he had shot these victims; the only thing he was sorry about was shooting Black, because he wanted her to live and remember what had happened. He also was sorry that "Chuck" (Lindauer), who had terminated defendant's employment, was not there.
Defendant told Grijalva that he did not plan to leave ESL alive, and had changed the beneficiary on his life insurance from Black to Mei Chang. Defendant said he had rented the motor home with a bad check and "thought that was kind of funny." He also told Grijalva that he had brought approximately 1,000 rounds of ammunition and gasoline in the motor home "to blow up ESL," but that when he arrived, he could not carry everything.
At approximately 4:30 p.m., defendant agreed to allow officers to enter the first floor of building M-5 to rescue injured individuals. At some point thereafter, Grijalva's negotiating team obtained a tape recorder and recorded the remainder of the negotiations until defendant surrendered. This recording was played for the jury. Defendant declared, "[T]here's no more reason to harm anybody. I've run out of enthusiasm for things really." Defendant stated that he "shot up a lot of terminals; I guess it's better than shooting people, . . . `cause it punishes ESL at the same time. . . . I need to get back at somebody, basically."
Defendant said that he told Peterson "he would just cause a lot of trouble . . . and cause Laura to do things . . . she would regret; and this kind of stuff `cause I tried telling her that, you know, I wouldn't take this. She got me fired and, . . . I wasn't going to let her do anything more to me, really." Defendant told Grijalva, "I never really wanted to hurt her. I just wanted her to know that I was serious and, as I say, if we just could've talked, and we hadn't got this court thing and she didn't try to sue me for $1,000and then this last letter, you know, that says bring all this stuff: it was just the final straw; I just had it."
Grijalva inquired, "So when you got up today, did you decide today that you wanted to hurt her?" Defendant responded, "I didn't decide that I wanted to hurt her until I got that letter in the mail that said, you know, now you're going to bring this evidence and now we're really going to, you knowI took it as a real threat, where I was [in] real serious trouble now. So until 10 o'clock this . . . morning time, I really hadn't given any thought to hurting her."
Grijalva asked, "When you came down here this afternoon, . . . did you have anybody in mind that you wanted to shoot or just because they were a threat to you?" Defendant said, "They were a threat to me; I wanted to *1069 destroy a lot of equipment at ESL. . . . I came down to destroy, do as much damage to ESL equipment as I could." Grijalva asked, "And you didn't intend or plan on shooting any persons?" Defendant said, "Yeah, some people popped out from around corners and stuff like that, um, and I just shot." Grijalva continued, "Was there anything in particular that you wanted to destroy here at ESL?" Defendant responded, "No, I just want Laura to know I was serious. . . . I wanted to do as much damage to their computer equipment and just cause them a lot of money loss." He later noted, "I'm tired of shooting equipment and I'm tired of shooting terminals. They just explode, spread glass on me. It's not any fun anymore."
Grijalva asked defendant about the victims, inquiring, "Other than Laura, do you know any of the people you shot today?" Defendant responded, "No." Grijalva asked, "So you don't even know them personally?" Defendant confirmed, "I don't know them personally, no. In fact, I have no idea who half of them were. . . . [¶] . . . [¶] I have to tell you, though, that if I'd recognized Peterson, I think I would have shot him, realistically. Because I was pissed at him. I mean, him and [Black's attorney], . . . if they had come into my sights, I would have got them." Defendant described how he "went up to Laura's office, yeah, and then she tried to shove the door thing, so I fired around . . . through the door. And then . . . she fell against it."
Defendant asked whether Black had survived. When Grijalva said he did not know, defendant responded, "I hope she's doing good. . . . [I]f the slug did catch her, or the whatever it was that I hit her with, she can't regret it if she doesn't live. And that was . . . my feelings at the time." During his conversations with Grijalva, defendant never expressed any remorse for the seven individuals killed.
At approximately 8:30 p.m., defendant surrendered to the police after requesting and receiving the promise of a sandwich and a soft drink. Toxicology analysis of his blood did not show the presence of either alcohol or drugs.
Inside M-5, the police discovered a Benelli riot configuration semiautomatic shotgun, a rifle with a scope, a pump-action shotgun, a Sentinel revolver, a Smith & Wesson .357 magnum revolver, a Browning semiautomatic pistol, a Smith & Wesson pistol, a smoke bomb, a leather glove, a belt with pouches filled with ammunition, other bags containing more than 200 rounds of ammunition, and a vest containing more than 800 rounds of ammunition, wooden matches, a foot-long buck knife and sheath, and ear protectors. A search of the motor home found in the ESL parking lot disclosed four gallons of gasoline, a loaded semiautomatic pistol, and more than 2,000 rounds of ammunition. A search of defendant's residence revealed *1070 a Mossberg 12-gauge shotgun barrel, a Ruger .22-caliber carbine, a gun clip, a gas mask, ammunition and empty boxes of ammunition, a reloading press, three cans of gunpowder, and gun-cleaning equipment. Various documents including the TRO, the notice in lieu of subpoena, and the motor home rental agreement, were on the dining room table. Defendant's will was in plain view on top of a computer terminal.
On February 23, 1988, defendant said to another prisoner, "I think they should be lenient since it's my first offense." After the other prisoner made a comment, defendant replied, "If I did it again, then they should throw the book at me." The tone was conversational, and not joking or agitated.
In March 1988, defendant wrote to Black, "When I go to the gas chamber, I'll smile for the cameras and you'll know that you'll have won in the end." In April 1988, he wrote to Chrysler Credit Corporation, "I'm in jail and will no longer be able to make payments. [¶] I would like the previous bank to know, its harassing letters and failure to allow me to purchase the car were contributing factors to the death of seven innocent people." It was signed, "Rich Farley [¶] mass murderer."
On March 11, 1989, defendant wrote to his friend Tom Burch, "I'm glad Laura's ok. . . . I hope she understands if I'd really wanted to hurt hershe wouldn't be here today."
2. Defense evidence
a. Defendant's testimony
Defendant was born on July 25, 1948, at Lackland Air Force Base in Texas. His father was an aircraft mechanic in the Air Force, and his mother was a homemaker. The family moved frequently before settling in Petaluma when he was seven or eight years of age. He graduated from high school and attended one year of junior college. He then enlisted in the Navy in 1967, and served for 10 years. He worked in cryptologic technician maintenance, which involved working with classified electronic systems, and traveled extensively.
In October 1977, upon his discharge from the Navy, he began working for ESL. Initially he was employed at the Sunnyvale facility, and then worked as a field service engineer for five years in Australia. He returned to the Sunnyvale facility in 1984. In the middle of July 1984, defendant met Laura Black and "fell instantly in love with her." Approximately one month later, Black agreed to go to lunch with defendant and his friend Burch. That lunch was defendant's and Black's sole social outing.
*1071 Defendant described the steps he took to surreptitiously learn Black's birthday, home address, academic background, residence address, the addresses of her relatives, and her schedule, and how he obtained copies of her office, desk, and residence keys. At the time defendant was obtaining information about Black, he did not believe his actions were wrong. He explained that the environments in which he had worked fostered an attitude that gathering information was not wrong. In the Navy and at ESL, he was granted security clearances, and his access to information gave him a feeling of power. His work in the Navy and in Australia involved spying, and he saw no difference between the government's authority to spy and his ability to spy, so "long as . . . I didn't harm anybody." He developed a sense that, with secret information, "I can, in essence, get away with things that normal people wouldn't be able to get away with. . . . In other words, we go into like a[n] elite society."
Defendant testified concerning his attempts to socialize with Black, and her rejection of him. He testified he made his letters more threatening so that Black would speak to him, but "[a]s I read the letters now, they seem much more intimidating and much more threatening than what I really intended them to be at the time that I wrote them."
Defendant contradicted the testimony of many other witnesses. He denied telling human resources employee Jean Tuffley that if he was terminated he would have nothing to live for, that he had guns and knew how to use them, or that he would take people with him. He claimed he did not threaten Tuffley and others. He asserted he did not tell laboratory manager Evor Vattuone that he had guns and was not afraid to use them. According to defendant, he and Vattuone had spoken about defendant's losing his job, not about restraining orders. He denied that he and Dennis Elliott discussed Laura Black, and denied that Elliott told him that he could lose his job and his clearances. He asserted he was not angry when ESL terminated him, did not know Gerald Hirst, and did not make a reference to the San Ysidro McDonald's massacre when speaking with Tom Burch. He also claimed he was not angry when he received the TRO, although he was annoyed by the request for $1,000 and by the term in the restraining order prohibiting him from going to the fitness center to which Black and defendant belonged. He denied speaking to Carolyn Gagnon or attempting to see the president of Santa Clara University. He also asserted he did not attempt to get his paycheck early on February 16 and did not tell Linda Emerson, the accounting manager, that he needed his check so he could buy a gun.
Defendant also testified concerning some of his activities in the days preceding the commission of the crimes. He sold his Suburban truck on Thursday February 11, placing a sale advertisement the Monday or Tuesday *1072 prior to that date. He claimed he did not visit the Bighorn Sporting Goods store until February 11 and went there to look at paintball shooters.[6] He purchased the Benelli shotgun because "it happened to be there" and because he liked and wanted it. He explained that he moved two guns from a former residence the weekend before committing the crimes, because he wanted to display his gun collection to Black. He stated he bought the ammunition vest a day or so before committing the crimes.
Defendant testified he went to ESL on February 16 to convince Black not to proceed with her legal action against him. He stated he also planned to intimidate Black into entering the motor home and to take photographs of her to demonstrate at the court hearing that he and Black had a personal relationship. He also wanted to show his sizeable gun collection to Black in order to convince her not to appear in court the next day. Defendant agreed with the prosecutor that he wanted Black to believe he would kill persons at ESL if she went through with obtaining the restraining order. Defendant added, however, that his planned demonstration was "just all bluff." He claimed that if none of his plans worked, he planned to kill himself in front of Black.
Defendant testified that after he arrived at ESL, he loaded ammunition in an ammunition vest "to keep myself busy." He stated that he put holstered guns, clip boxes, ammunition pouches, and a knife on his belt because he was bored. Consequently, he testified, he was wearing his ".380 in front, the ammo pouch in front, .357 magnum to my right side, the .22 magnum behind it, a large buck knife behind that, numerous clips around the other side, and my vest, my nine millimeter, my two shotguns, and I tied a cord around the.22-250 and just draped it over me." He recalled that he then put on his left leather glove and earplugs. At this point he did not believe he could go through with talking to Black or taking photographs of her, because that was "not the kind of behavior that I had ever done before," and he agreed with the prosecutor that "it was tougher to take the pictures than to kill myself." He testified that he decided instead to go to Black's office and commit suicide in front of her. He claimed that, other than shooting the front door to gain entrance to ESL's facility, he did not intend to do any damage to ESL or to shoot anyone but himself.
Defendant had a vague recollection of the ensuing events. He recalled that in the parking lot, he saw "somebody behind me with his arm raised, and I remember the gun going off once or twice." He remembered shooting through the Mardex doors. He testified that someone rushed by him and then turned around to come back at him, and he recalled firing repeatedly and the person *1073 disappearing. He next remembered being on the landing and becoming aware of someone at the bottom of the stairs. Defendant recalled shooting, adding: "The only thing I'm thinking is to get to Laura's office. These people pop up and I just shoot."
Defendant next remembered being at Black's office. He recalled that her back was to him, and she turned around smiling, but the smile disappeared "as soon as she saw me." Defendant testified he was stunned by the smile, and as he looked at the smile, the gun went off. He "distinctly remember[ed] not having any idea how the thing went off." He testified that the door closed in his face.
Defendant's recall of the ensuing events was fragmented and lacked chronological order. He testified that at some point he watched an armed person walking down the hallway, who apparently was himself. He remembered shooting a door lock, but was not aware of anyone being behind the door. He remembered seeing Linda Walden, his former landlady. He testified that he told her to come out from under the desk, and that she asked whether there was something she could do for him. He told her "no, to get out," which she did. He recalled that another woman asked whether she also could go, and "I told her she could." He testified that he felt he had to move from telephone to telephone because he did not want his calls traced to his location.
Defendant testified he did not know any of the victims except Black. He did not remember shooting any equipment, but did remember seeing that the equipment was damaged. There was, however, no doubt in his mind at trial that he shot the individuals killed on February 16, 1988, and damaged the equipment.
Defendant did not recall many of the unrecorded statements he made while he was inside the M-5 building. With respect to his recorded statement, defendant testified that he repeatedly lied to Grijalva regarding why he went to ESL, in order to avoid being placed in a mental institution. He expressed confusion concerning why he made some incriminating remarks during the recorded statement and gave benign explanations for others. He testified he was not angry at ESL and never wanted to hurt Black.
b. Expert testimony
Dr. Charles Raymond Marmar, a psychiatrist and associate professor at the University of California at San Francisco Medical Center, testified for the defense as an expert on the role of stress in dissociative disorders. He did not examine or test defendant, and expressed no opinion regarding defendant's *1074 mental state. Marmar testified that "peritraumatic trans disassociation" refers to disassociation occurring at the time a stressful or traumatic event is taking place. He explained that such dissociative experiences have some or all of the following features: (1) blanking out, or feeling unconnected with the experience, (2) going on "auto-pilot," rather than performing "consciously decided willful acts"; (3) experiencing an altered sense of the passage of time; (4) depersonalizing the experience so that it appears to be happening to someone else; (5) feeling outside one's own body and watching oneself from the outside; (6) perceiving a visual change in one's own body or the physical world; (7) experiencing confusion about what is happening to other individuals and to oneself, for example thinking when a family member is injured that oneself is the person injured; (8) experiencing psychological amnesia, or not remembering all or parts of the experience; and (9) not feeling physical pain from an injury at the time of the trauma. According to Marmar, "[T]he single most important factor that leads people to disassociation is a highly stressful or traumatic life experience." He explained that "the person is faced with catastrophic consequences to themselves and others at the time of the event and . . . [the person's] mind cannot comprehend and fully accept what's happening to them." He testified that a decision to kill oneself can result in such disassociation. He further testified that although struggling with a combination of chronic financial, emotional, and legal stresses generally would not result in disassociation, such struggles might "weaken the person and leave them vulnerable to disassociation." According to Marmar, a person in a dissociative state may not appear bizarre or psychotic, but may seem merely spaced out, a little confused, or highly preoccupied. Marmar explained that the veracity of a person's reported experience of disassociation may be evaluated through interviews with family and friends, as well as through various tests.
3. Rebuttal evidence
Mark McGinnis testified that on February 11, 1988, he purchased a 1984 Suburban diesel truck from defendant. According to McGinnis, the asking price of $5,000 was "about twenty-five percent of its value." McGinnis looked at the truck, which needed the transmission repaired, and purchased it for $4,500. McGinnis testified that defendant was nervous and fidgety. McGinnis drove the truck for more than two years in conjunction with his business, and then sold it for $9,000.
Richard Newbold testified that he worked with Jean Tuffley for at least five or six years. At some point in the one to three months before Newbold left ESL in mid-April 1986, Tuffley told Newbold that defendant had threatened to kill her. Newbold described Tuffley as "very distraught." According to Newbold, Tuffley was "a pretty level-headed person," and he had not seen her like that previously.
*1075 Peri Vattuone was married to Evor Vattuone. She testified that at some point in early 1986, Evor came home from work upset. He said he had just had a long conversation with defendant, who had said things that scared him. Peri testified that one such statement was that defendant possessed guns and knew how to use them, or something to that effect.
B. Penalty phase
1. Prosecution evidence
The prosecution did not present any additional evidence.
2. Defense evidence
a. From relatives and friends
Mina Belle Farley, defendant's mother, testified that she married defendant's father in 1947, and they remained married at the time of trial. Defendant's father was an airplane mechanic in the Air Force. They had six children, of whom defendant was the eldest. The family moved frequently, but when defendant was about seven years of age, they settled in Petaluma. His mother described him as a very quiet boy who required little attention from his parents. In high school he was quiet, and did not smoke, drink, or use drugs. His mother testified that he spent much of his time studying, and also played table tennis and chess, enjoyed photography, and baked. His high school grades were "very good," and he graduated 61st out of 520 high school students.
Mina Farley testified that defendant's father spent long periods of time away from the family while he was in the Air Force, but when he was home, he would spend time with the children. She stated that he retired from the Air Force in 1960, and then worked as a school custodian, spending little time with defendant because of his work schedule. According to her, there was much love in the house, but the family displayed little outward affection.
Mina Farley testified that she did not see defendant often after he joined the Navy. In 1973, she and her husband moved to Texas, where they resided at the time of trial. She recalled that defendant visited them in Texas twice between 1973 and 1988, and that the most recent occasion on which she had seen defendant prior to February 16, 1988, was in 1986 or 1987, while she was visiting her daughter.
Defendant's mother also recalled that when defendant was 10 years of age, he helped care for his younger siblings while she was in the hospital and his *1076 father was stationed in Japan. She testified that defendant did not have a bad temper, nor did she ever see him act violently toward his siblings. She stated she was shocked when she heard about the ESL shootings, "[b]ecause that wasn't Rick." She testified she loved him and was proud of the fact that he tried to obtain an education, did not "run around," and did not smoke, consume alcohol, or use illegal drugs.
Gregory Farley, defendant's brother, testified that defendant was nonviolent while growing up. He recalled that when defendant was about 10 years of age, and Gregory was six years of age, Gregory, who could not swim, fell into a swimming pool and defendant rescued him. He also recalled that defendant helped him learn to drive, and sold him a vehicle at a very low price. Defendant's brother described defendant as someone from whom he could seek advice, although he could not recall any specific occasion on which he had done so. Defendant's brother had resided in Germany since 1972, and at the time defendant was arrested he had not seen defendant in 16 years. The brother also stated they never wrote to each other or spoke by telephone. He agreed that he "probably" did not know defendant at all as an adult, and that the person he knew as a child was "totally different" from a person who would commit these crimes.
Lois Eaquinto resided on the same street in Petaluma as defendant when he was growing up, and was close to his mother. She testified that defendant's home was well kept. She stated that defendant's brothers, but not defendant, joined her boys in attending church services. She also stated that defendant's father was absent in the military much of the time, and she could not recall ever having had a conversation with him. According to Eaquinto, when defendant's father was home "everything revolved around him," and defendant and his brothers did not play with Eaquinto's boys during those periods. Eaquinto witnessed little interaction between defendant and his parents, and little reaction by the parents to their children's accomplishments. She also testified that defendant sometimes was "real rough" with his brothers, sitting on them and twisting their arms and stepping on their fingers.
Lois's son, Francis Eaquinto, was the same age as defendant, and they played and attended school together. Francis testified that defendant was the smarter of the two, was more interested in math and science, and was conscientious about his schoolwork. He recalled that defendant's father was strict, but Francis felt welcome at defendant's house when the father was home. Francis had not seen defendant since graduating from high school.
George Duisman grew up on the same street as defendant, and was defendant's best friend when they were teenagers. He testified they played table tennis, chess, and bridge, and enjoyed chemistry and math. According to Duisman, defendant did well in school and was not violent.
*1077 Thomas Vail met defendant when defendant was a teenager. Vail testified that defendant was well mannered and had a curious mind. He stated that defendant and Duisman studied bridge, and that defendant was not violent.
Dianne Mahan had at least one class with defendant in high school. She testified that they were not friends socially, and that defendant was quiet and studious.
In defendant's senior year of high school, Paula Stonitsch taught his class in American institutions. Stonitsch testified that although he received a "C" in her class, he was a very good student.
b. Defendant's service in the Navy
Joseph Armas, an expert in the interpretation of military service records and performance evaluations, testified regarding defendant's military record. According to Armas, several tests were administered to defendant during his first three weeks in the Navy. He performed well on the General Classification Test and on tests for mechanical abilities, "electric selection," clerical abilities, arithmetic, sonar, and programming aptitude, but did not do well on the foreign language aptitude test. Defendant volunteered for submarine duty, and after taking extensive psychological and agility tests, was recommended for that duty. He graduated first in his class of six at Naval Submarine School, but did not remain in the submarine program, apparently withdrawing voluntarily. Defendant received high evaluations during his two enlistment periods (1968 to 1971 and 1971 to 1977) and was honorably discharged at the conclusion of each enlistment period.
Kent Wells, a Navy personnel security specialist, testified concerning defendant's work in the military and at ESL. After finishing basic training, defendant was trained to be a "cryptologic technician"a person who maintains electronic equipment. Wells testified that there were three levels of security clearance, the lowest being "confidential," the middle being "secret," and the highest being "top-secret." Because the Navy's cryptologic function was a highly classified mission, the Office of Naval Intelligence investigated all cryptologic technicians to determine whether they could be granted not only top-secret clearance, but also access to very sensitive "compartmented" information that others with top-secret clearance could access on only a "need to know" basis. The security clearances received by defendant could be granted only to individuals who were found to be trustworthy, reliable, of unquestioned character, and loyal to the government of the United States. The investigation was repeated every five years to check for intervening disqualifying information. Defendant was granted top-secret clearance and access to sensitive compartmented information in November 1968, and throughout his naval career he performed work that required top-security clearances.
*1078 Wells further testified that at the time defendant served in the Naval Security Group, the Group's national defense mission was to collect certain intelligence information about adversaries and to disseminate that information to the military and to various intelligence agencies. Defendant contributed to the security of the United States by maintaining the Naval Security Group's equipment, thereby enabling the gathering of information. Wells agreed with defense counsel that, in this context, defendant was "vital to the national defense," testifying that much of defendant's work still was classified at the time of trial. Defendant also maintained equipment that assisted in search and rescue missions for aircraft or ships in distress, and thereby helped to save lives as well as ships and aircraft.
c. Defendant's Work at ESL
Defendant began working at ESL in approximately November 1977, and received a top-secret security clearance from the Department of Defense in March 1978. No background investigation was performed, because defendant had left the Navy so recently, and no subsequent investigation occurred because of funding shortages.
Richard Rose, a Department of Defense contracting officer, testified regarding defendant's work at ESL. ESL specialized in building direction-finding equipment and signal-processing systems for the United States government. Defendant worked in three areastesting, repair, and preventative and corrective maintenance. From November 1977 through June 1979, defendant was involved in a project concerning the research and development of direction-finding equipment and its installation on ground vehicles and aircraft. The equipment enabled a military commander to determine the location of enemy communication or radar transmitters, and thereby learn the location and strength of enemy forces.
From June 1979 through June 1984, defendant was assigned to the Joint Defense Space Research Facility in Australia. Rose testified that this facility, which was shared by the United States and Australian governments, provided "valuable contributions to the verification of arms control and disarmament agreements." Defendant and others provided round-the-clock maintenance of the electronic equipment, including diagnostic and repair functions. According to Rose, defendant's contribution "could be considered essential in that he was maintaining equipment that was of a significant value to the defense of the United States," Rose also testified that according to the Secretary of Defense, all of the projects on which defendant worked were "vital to the national defense," and disclosure of any of this classified information could, according to the Secretary, result in "`exceptionally grave harm to the *1079 national defense and public relations of the United States.'" Defendant's four ESL performance evaluations for this work were 99 percent, 96 percent, 96.5 percent, and 98 percent.
From June 1984 until his termination by ESL in May 1986, defendant's work involved feasibility studies for the United States National Security Agency. This project analyzed equipment that might be developed, and how it would function.
d. Other mitigating evidence
Brian Messing, a systems engineer for ESL, worked with defendant in Australia. Messing testified that he considered defendant the best technician at the facility, because he was conscientious about his tasks. According to Messing, defendant took an active interest in his assignments, and "would go out of his way to learn something else about the system." Messing testified that defendant assisted Messing on an occasion when Messing's vehicle ran out of gasoline at night on an isolated stretch of road. Other drivers had passed him by without stopping. Defendant gave him a ride back to the ESL site to obtain gasoline, and then drove him back to his vehicle. Messing also stated that during a conversation on another occasion in Australia, defendant mentioned he owned several guns and a crossbow.
Alcina Sousa knew defendant at San Jose State University. She testified that he always would offer to look at and comment upon computer programs she had written. She also would see him in the hallways helping other students or just being friendly. He did not seem violent to Sousa, but instead very calm. He told Sousa about an incident in which he pulled someone's vehicle out of the snow with his truck. After defendant's arrest, Sousa visited him in jail. She testified that much of their conversation was about her life.
Stanley Hilberg shared a home with defendant from September 1986 to the end of January 1987. He testified that defendant was congenial and very responsible. He also testified that defendant had a shotgun in his room.
Joseph Nielsen, who was 71 years of age, resided on the same street as defendant in late 1987 and early 1988. Nielsen had spoken to defendant on several occasions, and testified he seemed like a very nice young man.
Lynn Clay and Gregory Debord testified that defendant performed well when he was employed at Covalent. Defendant's responsibilities were undertaken in a timely manner, and he provided needed expertise. Clay testified that defendant was patient and responsive when dealing with customers. Debord noted that defendant seemed able to control himself.
*1080 Department of Corrections Assistant Director Robert Conroy and Santa Clara County Deputy Sheriff James Teichner testified that while in jail, defendant was courteous and respectful to officers. Conroy further testified that defendant was allowed to use a calculator and a typewriter, which were special privileges. Defendant wrote Conroy a thank you note for providing these materialsunusual action for an inmate to take. Teichner, Deputy Sheriff Jeffrey Hunter, Correctional Officer James Darnell, and Correctional Officer Libby Reynolds testified that defendant did not cause any problems for officers when he was transported from jail to court.
Darnell further testified that while in jail, defendant was selected to be a trustee. This role required an ability to work independently. During the three months Darnell was assigned to defendant's housing unit, defendant did a "great job" working as a trustee.
Reynolds and Judith Pelite, a teacher who provided jail educational services, testified that defendant studied mathematics. Pelite, Reynolds, Hunter, and inmate Wayne Nichols testified that defendant tutored other inmates in mathematics. Nichols further testified that defendant was patient and encouraging.
3. Rebuttal evidence
The prosecution presented evidence of defendant's misconduct while in jail. During a May 1990 search of defendant's jail cell, scrubbing pads, used to polish the floors, were found hidden in a paper bag. An infraction report was written. In June 1988, during a search of defendant's cell, a razor blade, two towels, a bag of sugar, 13 books, and 10 magazines were found. It was determined that defendant had committed a minor infraction, and as a penalty he lost use of the sun deck. In March 1989, while defendant was serving as a trustee, he turned off the juice machine to save juice for the trustees, despite having been instructed by an officer to leave it on. He turned the machine on again when ordered to do so, but became agitated. He raised his voice and confronted the officer in front of the other inmates.
*1081 II. DISCUSSION
A. Pretrial issues
1. Change of venue motions
Defendant contends the trial court erroneously denied his two motions for change of venue[7] in violation of his rights under the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution. We disagree.
a. Factual background
On July 17, 1989, two years before trial, defendant filed a motion for a change of venue. At the hearing on the motion, held before Judge John Flaherty, defendant produced expert testimony, newspaper articles, and television news reports. On August 21, 1989, the trial court denied the motion without prejudice to its renewal after voir dire. The trial court expressed the view that "this is an extremely close case," and stated that its decision to deny the motion was based in part "on the applicability of the Hovey voir dire.... I'm satisfied that by the use of that ... extensive voir dire procedure, that the defendant here can receive a fair trial in this county." (See Hovey v. Superior Court (1980) 28 Cal.3d 1 [168 Cal.Rptr. 128, 616 P.2d 1301].)
Almost two years later, on June 13, 1991, after jury voir dire, defendant filed a second motion for a change of venue. The hearing on the second motion was held before Judge Joseph Biafore, the trial judge, on June 26, 1991, the day before the parties were scheduled to exercise peremptory challenges. The court considered the moving papers, the hearing transcript, and the exhibits from the first motion for a change of venue, as well as written and oral arguments and additional exhibits, including newspaper articles, television news reports, and summaries of voir dire responses, received prior to and at the hearing on the second motion for a change of venue. At the conclusion of the hearing, the court announced it would defer ruling on the motion until 12 jurors were chosen, to allow the court to "take a *1082 good hard look at those particular people seated in terms of analyzing whether or not the Defendant would, in fact, receive a fair trial from those persons."
Following the selection of 12 jurors, but before they were sworn and before alternates were selected, the court heard further argument, and then denied the motion. The court found that the gravity of the offense, and the nature and extent of the publicity, weighed in favor of granting the motion, but also noted that during voir dire, prospective jurors indicated there was "a spate of media exposure," followed by a decline in news reports. "[M]any of them indicated there was actually nothing they heard about this case until the time for jury selection.... [I]n the intervening time, there was not a great mass of media exposure. This case did not generate the type of hysteria that counsel for the defense was talking about." The court also found that the status of the victims and defendant, who were not well known in the community, weighed against granting the motion. The "most salient factor," the court found, was the size of the community. The population of Santa Clara County was large, approaching 1.5 million persons. With respect to the jurors selected, the court had "no doubt that these people will follow the law as instructed by the court." The jurors "exhibited to the court that they can set aside whatever opinions, impressions that they may have derived from the media and judge ... this case fairly and squarely on the evidence presented in this courtroom." The court found no reasonable likelihood defendant could not receive a fair trial "in this community."
b. Analysis
"A trial court must order a change of venue for trial of a criminal case to another county on motion of the defendant `when it appears that there is a reasonable likelihood that a fair and impartial trial cannot be held in the county.' (§ 1033, subd. (a).)" (People v. Hayes (1999) 21 Cal.4th 1211, 1250 [91 Cal.Rptr.2d 211, 989 P.2d 645].) We consider the correctness of the trial court's ruling at the time it was made. (People v. Zambrano (2007) 41 Cal.4th 1082, 1127 [63 Cal.Rptr.3d 297, 163 P.3d 4] (Zambrano), disapproved on different grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22 [87 Cal.Rptr.3d 209, 198 P.3d 11] (Doolin).) "`We will sustain the court's determination of the relevant facts where supported by substantial evidence. We independently review the court's ultimate determination of the reasonable likelihood of an unfair trial.'" (People v. Hart (1999) 20 Cal.4th 546, 598 [85 Cal.Rptr.2d 132, 976 P.2d 683] (Hart).) "Both the trial court's initial venue determination and our independent evaluation are based on a consideration of five factors: `(1) nature and gravity of the offense; (2) nature and extent of the media coverage; (3) size of the community; (4) community status of the defendant; and (5) prominence of the victim.'" (People v. Leonard (2007) 40 *1083 Cal.4th 1370, 1394 [58 Cal.Rptr.3d 368, 157 P.3d 973] (Leonard).) "On appeal, a defendant challenging a trial court's denial of a motion for change of venue must show both error and prejudice: that is, that at the time of the motion it was reasonably likely that a fair trial could not be had in the county, and that it was reasonably likely that a fair trial was not had. [Citations.]" (People v. Davis (2009) 46 Cal.4th 539, 578 [94 Cal.Rptr.3d 322, 208 P.3d 78].)
We begin with defendant's initial motion, which was made before jury voir dire took place. The first factor of the analysisthe nature and gravity of the offenseweighed in favor of a change of venue for the trial of these seven senseless murders. The same could be said, however, of most capital crimes, and we have concluded that this factor is not dispositive. (People v. Sanders (1995) 11 Cal.4th 475, 506 [46 Cal.Rptr.2d 751, 905 P.2d 420]; People v. Pride (1992) 3 Cal.4th 195, 224 [10 Cal.Rptr.2d 636, 833 P.2d 643].) Indeed, on numerous occasions we have upheld the denial of change of venue motions in cases involving multiple murders. (See, e.g., Leonard, supra, 40 Cal.4th at pp. 1395, 1397 [six counts of murder]; People v. Ramirez (2006) 39 Cal.4th 398, 407, 434-435 [46 Cal.Rptr.3d 677, 139 P.3d 64] (Ramirez) [13 counts of murder]; People v. Welch (1999) 20 Cal.4th 701, 721, 744-745 [85 Cal.Rptr.2d 203, 976 P.2d 754] [six counts of murder].)
We next consider the nature and extent of the media coverage, the factor upon which defendant primarily relies. Defendant presented evidence of numerous newspaper articles and television news stories that discussed or mentioned the events, including film of persons being rescued from the ESL building during the siege, pictures of an injured Laura Black, and segments of defendant's recorded statements to Lieutenant Grijalva. He complains that some reports portrayed him as having committed various criminal acts rather than referring to him as a "suspect" or as an "alleged" criminal. He also complains that the media "consistently portrayed [him] as an obsessed, dangerous man."
The media coverage, which decreased over time, was largely factual. (See Murphy v. Florida (1975) 421 U.S. 794, 800, fn. 4 [44 L.Ed.2d 589, 95 S.Ct. 2031] [the court has "distinguished largely factual publicity from that which is invidious or inflammatory"]; id. at p. 802; Beck v. Washington (1962) 369 U.S. 541, 556 [8 L.Ed.2d 98, 82 S.Ct. 955] [the court noted that "[e]ven the occasional front-page items were straight news stories rather than invidious articles which would tend to arouse ill will and vindictiveness"]; Hart, supra, 20 Cal.4th at p. 599 [noting that the trial court found the reporting to be neutral, not inflammatory, and insufficient to sway public opinion].) Even in a case in which the trial court described the media coverage as "`saturation,' " we found no error in the denial of a motion for a change of venue, *1084 noting, among other factors, that the "defendant did not show that the media coverage was unfair or slanted against him or revealed incriminating facts that were not introduced at trial." (Ramirez, supra, 39 Cal.4th at pp. 434-435.)
(1) Defendant asserts, however, that even noninflammatory journalism may warrant a change of venue if the facts are sensational. We have acknowledged that press coverage need not be inflammatory to justify a change of venue (People v. Tidwell (1970) 3 Cal.3d 62, 69-70 [89 Cal.Rptr. 44, 473 P.2d 748]), but the cases upon which defendant relies involved additional factors that weighed in favor of a change of venue. In Tidwell, two of the victims were prominent members of a small community, the defendants were strangers to that community, and some of the jurors selected to serve knew one or more of the victims or witnesses. (Id. at pp. 64-65, 67, 69-75.) Similarly, the change of venue ordered in Corona v. Superior Court (1972) 24 Cal.App.3d 872 [101 Cal.Rptr. 411], was motivated by a concern that jurors in a small community, in which the defendant was charged with the murder of 25 migratory farm workers, would be "vulnerable to claims of insensitivity toward migratory farm workers," and conscious "of the community's reputation for peace and security" (id. at pp. 875-876, 883). As explained below, such circumstances were absent in the present case.
The remaining three factorsthe size of the community, and the status of defendant and of his victims in the communityweighed against a change of venue. Santa Clara County, with a population of almost 1.5 million persons, was a large community. (People v. Dennis (1998) 17 Cal.4th 468, 523 [71 Cal.Rptr.2d 680, 950 P.2d 1035] [noting that Santa Clara County in 1988 was the fourth most populous county in the state].) Neither defendant nor his victims were prominent members of this community. Contrary to defendant's contention, the circumstance that defendant, his victims, and many qualified jurors worked in the "high tech" industry did not affect the status of the participants for purposes of the change of venue motion; the terror engendered by defendant's attack stemmed not from its occurrence in a technology company, but from the circumstance that it happened in the middle of the workday in an office setting. Some degree of juror identification with the victims would occur in any venue. (See People v. Webb (1993) 6 Cal.4th 494, 515 [24 Cal.Rptr.2d 779, 862 P.2d 779] ["Any sympathetic features of the case would be apparent wherever it was tried."].) For the same reason, defendant's contention that jurors would perceive him as "a `changeling,' who had turned on and murdered his own kind," does not establish that a change of venue was warranted.
For these reasons, we conclude the trial court did not err in denying defendant's first motion for a change of venue.
*1085 As noted above, the court deferred its ruling on defendant's second motion for a change of venue until after jury selection. (See Maine v. Superior Court (1968) 68 Cal.2d 375, 380 [66 Cal.Rptr. 724, 438 P.2d 372] [it has long been the practice "to permit the trial court to defer its final ruling on a motion for a change of venue until the jury is empaneled"].) By this point in the proceedings, the trial court had heard on voir dire from the jurors selected that they would decide the case based solely upon the evidence and argument presented in court, and the trial court expressly credited those assertions. (See Leonard, supra, 40 Cal.4th at p. 1396 ["jurors selected to try this case bear out the trial court's conclusion that an unbiased jury could be found"].) In addition, none of the sitting jurors or alternates had been challenged for cause. (Beck v. Washington, supra, 369 U.S. at pp. 557-558 [the circumstance that the defendant did not challenge for cause any of the jurors selected "is strong evidence that he was convinced the jurors were not biased"].) Nor did defendant exhaust his peremptory challenges, "thus indicating that `the jurors were fair, and that the defense itself so concluded.'" (People v. Panah (2005) 35 Cal.4th 395, 448 [25 Cal.Rptr.3d 672, 107 P.3d 790]; see also Zambrano, supra, 41 Cal.4th at pp. 1127-1128 [the court cited the circumstance that the defendant did not challenge any of the sitting jurors for cause or exhaust available peremptory challenges, in support of its conclusion that hindsight demonstrated that retention of the case did not "produce an unfair trial"].)[8]
Defendant relies upon the circumstance that numerous jurors were excused for bias against the defense.[9] The number of excusals may have been more than would occur in an ordinary criminal trial, "but it by no means suggests a community with sentiment so poisoned against [the defendant] as to impeach the indifference of jurors who displayed no animus of their own." (Murphy v. Florida, supra, 421 U.S. at p. 803.)
*1086 (2) Defendant also relies upon the circumstance that three years after his commission of the crimes, many prospective jurors still had a recollection of the murders. "The relevant question is not whether the community remembered the case, but whether the jurors at [the defendant's] trial had such fixed opinions that they could not judge impartially the guilt of the defendant." (Patton v. Yount (1984) 467 U.S. 1025, 1035 [81 L.Ed.2d 847, 104 S.Ct. 2885]; see Ramirez, supra, 39 Cal.4th at pp. 434-435 ["Although only one member of the jury indicated ... he never had heard of the case, they all stated they had not `formed any opinion as to the guilt or innocence of [the defendant] ...' and could be fair."].) "We must distinguish between mere familiarity with [the defendant] or his past and an actual predisposition against him." (Murphy v. Florida, supra, 421 U.S. at p. 800, fn. 4.) Defendant asserts without citation to the record that four jurors believed he was "guilty," but our review of the voir dire indicates all jurors demonstrated a willingness to set aside any preconceived notions and make their decision solely upon the evidence presented. (See Beck v. Washington, supra, 369 U.S. at p. 557 ["`It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court.'"].)
(3) Defendant further contends, however, that jurors' assertions that they could be impartial should not be credited. "In exceptional cases, `"adverse pretrial publicity can create such a presumption of prejudice in a community that the jurors' claims that they can be impartial should not be believed," [citation] ....' [Citation.] `The category of cases where prejudice has been presumed in the face of juror attestation to the contrary is extremely narrow. Indeed, the few cases in which the [high] Court has presumed prejudice can only be termed extraordinary, [citation], and it is well-settled that pretrial publicity itself"even pervasive, adverse publicitydoes not inevitably lead to an unfair trial" [citation].' [Citation.] This prejudice is presumed only in extraordinary casesnot in every case in which pervasive publicity has reached most members of the venire." (People v. Prince (2007) 40 Cal.4th 1179, 1216 [57 Cal.Rptr.3d 543, 156 P.3d 1015] (Prince).)
In Prince, supra, 40 Cal.4th 1179, we reviewed some of the extraordinary cases in which the high court has presumed prejudice from pretrial publicity. "In one case ... the critical feature was that a local television station in a relatively small community on several occasions broadcast the entire spectacle of the defendant's jailhouse confession. [Citation.]" (Id. at p. 1217.) In a second case, "`[t]he trial ... had been conducted in a circus atmosphere, due in large part to the intrusions of the press, which was allowed to sit within the bar of the court and to overrun it with television equipment. Similarly, [in a third case, prejudice] arose from a trial infected not only by a background of extremely inflammatory publicity but also by a courthouse given over to accommodate the public appetite for carnival. The proceedings in these cases were entirely lacking in the solemnity and sobriety to which a defendant is *1087 entitled in a system that subscribes to any notion of fairness and rejects the verdict of a mob. They cannot be made to stand for the proposition that juror exposure to ... news accounts of the crime with which he is charged alone presumptively deprives the defendant of due process.' [Citation.] The reviewing court instead must look for `indications in the totality of the circumstances that [the defendant's] trial was not fundamentally fair.' [Citation.]" (Id. at pp. 1217-1218.)
The present case does not fall "within the limited class of cases in which prejudice would be presumed under the United States Constitution." (Prince, supra, 40 Cal.4th at p. 1217.) The publicity adduced at the second change of venue motion, as at the first, was largely factual and noninflammatory. Nor is there evidence in the record that the jury selection process lacked solemnity. (Murphy v. Florida, supra, 421 U.S. at p. 799.) Moreover, the seated jurors, who were questioned on voir dire individually, either recalled nothing of the case or remembered few details. The trial court, which observed the jurors' demeanor, expressly found they had demonstrated an ability to set aside any preconceived impressions derived from the media. Thus, no extraordinary circumstances are presented.
We conclude the trial court did not err in denying the second motion for change of venue.
2. Excusing prospective jurors for cause due to their views concerning the death penalty
Defendant contends the trial court erroneously excused two prospective jurors for cause based upon their views concerning the death penalty. We disagree.
a. Factual background
(1) Excusal of Prospective Juror A.S.
In Prospective Juror A.S.'s questionnaire, she stated she "Will Consider" the death penalty, and drew an arrow pointing toward the "Oppose" and "Strongly Oppose" responses. She believed that the "penalty should be exercised with great caution. One must be absolutely convinced of the guilt of the accused. He or she must have committed a crime for which they could never be forgiven and which demonstrates a disregard for human life." During voir dire by the court, she stated that "choos[ing] the death penalty would be very difficult for me.... [T]he circumstances would have to be very aggravating." She also stated she would be capable of performing the weighing process required to determine the appropriate penalty; she would *1088 listen to all of the evidence and arguments before choosing a penalty; she could make a choice between the penalties, and she would not automatically choose one penalty over another.
When the defense asked whether she could vote for death if she concluded the death penalty was the appropriate punishment, A.S. responded, "I think so." When the prosecutor inquired concerning the hesitancy reflected in her response, she agreed that although she could impose the death penalty on an intellectual level, "emotionally and spiritually" it was more difficult. She explained the basis of her inclination against the death penalty: "I don't think it's right to kill other people. And that doesn't mean that's not justified in very, very unusual cases, but I would not ... take that lightly. Seems like a very grave issue." She stated she could vote to send a man to his death, but when pressed by the prosecutor to confirm that she could vote for the death penalty, she responded, "I'm not sure I could." The prosecutor asked, "In other words, you don't know whether, if you got to that stage emotionally, then you could actually do it even though intellectually you believed it to be the appropriate decision?" A.S. agreed, "That's true."
The prosecutor challenged A.S. for cause under Witt, supra, 469 U.S. 412. Over defense objection, the trial court sustained the challenge, stating, "I believe that the juror was setting the signals early in the voir dire, and she exhibited some difficulty even going through the weighing process, when she had volunteered the concerns about the death penalty as it would affect her ability to go though the weighing process, but we got through that. But I think under these circumstances, that [the prosecutor's] challenge should be granted because I believe that this juror's views would prevent or substantially impair the performance of her duties as a juror in accordance with [the] instructions."
(2) Excusal of Prospective Juror R.R.
In Prospective Juror R.R.'s questionnaire, he circled the "Strongly Oppose" response when asked his view concerning the death penalty. In response to a question regarding the circumstances under which the death penalty was inappropriate, he wrote, "all." During voir dire, he confirmed he was morally, philosophically, and intellectually opposed to the death penalty, but also indicated he understood that if the aggravating circumstances substantially outweighed the mitigating circumstances, he would be required to vote for death. The prosecutor then clarified that the law never would require a juror to vote for death. Following this clarification, R.R. stated he "[a]bsolutely" always would vote for life imprisonment without the possibility of parole, and if the aggravating evidence substantially outweighed the mitigating evidence, he "would vote for life" in "[e]very instance."
*1089 The prosecutor challenged Prospective Juror R.R. for cause under Witt, supra, 469 U.S. 412. Over defense objection, the trial court sustained the challenge, stating, "I think it's abundantly clear after listening to this juror that when he finally realizes he has a freedom of choice after hearing the evidence, and that there is not going to be any directive as to which way he should vote, and the onus is on him and the choice is clearly his, he has indicated in every instance he would vote for life no matter what the evidence is. If given a choice, he would have to vote for life in prison without the possibility of parole."
b. Analysis
(4) "The trial court may excuse for cause a prospective juror whose views on the death penalty would prevent or substantially impair the performance of that juror's duties" in accordance with the court's instructions and the juror's oath. (People v. Smith (2003) 30 Cal.4th 581, 601 [134 Cal.Rptr.2d 1, 68 P.3d 302]; see Witt, supra, 469 U.S. at p. 424.) "The standard of review of the court's ruling regarding the prospective juror's views on the death penalty is essentially the same as the standard regarding other claims of bias. If the prospective juror's statements are conflicting or equivocal, the court's determination of the actual state of mind is binding. If the statements are consistent, the court's ruling will be upheld if supported by substantial evidence." (People v. Horning (2004) 34 Cal.4th 871, 896-897 [22 Cal.Rptr.3d 305, 102 P.3d 228].) "Deference to the trial court is appropriate because it is in a position to assess the demeanor of the venire, and of the individuals who compose it, a factor of critical importance in assessing the attitude and qualifications of potential jurors." (Uttecht v. Brown (2007) 551 U.S. 1, 9 [167 L.Ed.2d 1014, 127 S.Ct. 2218].)
A.S.'s statements with respect to her ability to follow the law concerning imposition of the death penalty were equivocal. Although her questionnaire and initial voir dire indicated she could weigh the relevant factors and consider either penalty, her subsequent responses reflected significant hesitation regarding her emotional ability to impose the death penalty. The trial court was in a position, which we are not, to view her demeanor as she responded, and its determination of her state of mind is binding. Substantial evidence supports its ruling that A.S.'s views concerning the death penalty would prevent or substantially impair her performance as a juror.
Contrary to defendant's claim, R.R. did not make it "clear that while he was reluctant to impose a death penalty, he would follow the law." Rather, R.R. struggled with the idea that he would be compelled to impose the death penalty if the aggravating circumstances substantially outweighed the mitigating circumstances. After he was informed he would have a choice *1090 concerning the appropriate penalty under those circumstances, he stated he always would vote for life imprisonment without the possibility of parole, regardless of the evidence. Nor, contrary to defendant's claim, does the record indicate the court and the prosecutor "`tricked' [R.R.] into disqualifying himself by misrepresenting that a juror could properly take the position that aggravation would never outweigh mitigation enough to warrant a death penalty, and then disqualif[ying] [R.R.] because he took that position." Rather, the prosecutor simply corrected R.R.'s apparent belief that under certain circumstances, a juror would be required to impose the death penalty, and the court properly excused R.R. based upon R.R.'s disclosure that he never would impose the penalty of death.
3. Prosecution challenges for cause
Defendant claims the trial court erroneously permitted the prosecutor to challenge four prospective jurors on the ground they were biased against the defense as a result of pretrial publicity. He contends that the prosecutor had no standing to make the challenges, and that the trial court erred in excusing the prospective jurors for cause. He also asserts that sustaining the challenges impaired his right to counsel under the Sixth, Eighth, and Fourteenth Amendments, and deprived him of a number of peremptory challenges equal to that allotted to the prosecution.
a. Factual background
(1) Excusal of Prospective Juror L.R.
On his juror questionnaire, Prospective Juror L.R. wrote "Yes," when asked whether he thought defendant was guilty of the charges. He also stated that he opposed the death penalty. On voir dire, the trial court asked L.R. whether he "would be able to set aside your previous impressions and opinions and judge this matter solely on the evidence produced in this courtroom and on the arguments of the attorneys and on the body of law that the Court will instruct you?" L.R. found the question "very difficult to answer," and stated that "I really don't know how I would behave as a juror since I have never been a juror." The court explained that he was not being asked to forget his opinions and impressions; rather, he would be called upon to set them aside and decide the case based upon what he heard in the courtroom. L.R. said he did not know whether he could do so.
The prosecutor challenged L.R. for cause under People v. Bittaker (1989) 48 Cal.3d 1046, 1090 [259 Cal.Rptr. 630, 774 P.2d 659] (Bittaker), "because he has not affirmatively said that he can set aside his opinions and deal only with the facts in the case as they are presented in the Court." Defense counsel *1091 asserted the prosecutor lacked standing to challenge a prospective juror for cause on this basis. In response to further questioning by the court, L.R. iterated that he did not know whether he could base his decision solely on the evidence presented in court, and stated he did not know whether he would be a fair and impartial juror.
The trial court sustained the prosecutor's challenge, finding that "this juror cannot be fair and impartial. This juror is equivocating to the point where I have absolutely no idea what his state of mind is. He has indicated to me that he cannot base his decision in this case solely on the evidence produced in this courtroom, and that he has been so impressed and influenced by the pretrial publicity that he cannot be fair and impartial. I'm making that finding." Defense counsel again opposed the challenge "for the reasons ... stated before," and also argued that "the attitudes expressed by [L.R.] ... are not necessarily indicative of his state of mind, but more indicative of a desire not to serve. I don't think that creates a situation where the Court can legitimately make a finding that he cannot be a fair and impartial juror." The court stated, "I don't think he can be fair and impartial in this case. I have a duty to get fair and impartial jurors; he's not one of them."
(2) Excusal of Prospective Juror C.S.
On her juror questionnaire, when asked whether defendant was guilty of the charges, Prospective Juror C.S. wrote "Yesat least some of the chargesthe murder charges, but I don't know if it's first degree." On voir dire, she repeatedly stated she did not know whether she could set aside her impressions and opinions about the case and base her decision upon the evidence presented in court. She stated her work in policy analysis did not involve "arbitrarily setting aside" information, and therefore she did not know whether she could set aside what she had heard out of court.
The prosecutor challenged C.S. for cause under Bittaker, supra, 48 Cal.3d 1046, because she could not make an affirmative declaration that she could set aside the views she derived from pretrial publicity. Defense counsel objected, contending that the prosecutor lacked standing, and that C.S. in fact could set aside what she might know about the case and her conclusions about the case. "My sense of listening to her and watching her is that the ambivalence that she has expressed doesn't have to do with her inability to go through the mental or intellectual exercise of setting things aside; it has to do more with the emotional level or the responsibility of making a decision involving someone else's life."
The trial court sustained the challenge. "With regard to this juror, the Court cannot get a clear indication of her state of mind based on her ambivalent and *1092 ambiguous answers. I don't think that she can be fair and impartial. She said that she cannot set aside her opinions of the Defendant's guilt. When I asked her if she would make every effort to set aside those opinions, she said she didn't know, she didn't know whether she could do it. Under those circumstances, her opinion is that the Defendant is guilty, and she would have a very difficult time setting aside those opinions, and so the Court will grant the challenge based upon her inability to be fair and impartial in this case."
(3) Excusal of Prospective Juror D.M.
On her juror questionnaire, Prospective Juror D.M. wrote in capital letters and underlined "Yes," when asked whether she thought defendant was guilty of the charges. In response to the question, "[H]ave you formed any opinions about this case," she wrote, "Right now, my vote is for the [d]eath sentence." On voir dire, she stated she understood the law required that she presume defendant innocent, but she had difficulty applying the presumption of innocence to defendant. She stated that she had heard about the case in media reports, and she would find defendant guilty beyond a reasonable doubt, based upon what she had heard in the press, without any evidence being presented. D.M. also noted she had changed her mind concerning the death penalty, and "would not be able to at any time be responsible for putting anybody to the death sentence." At the conclusion of the court's questioning, D.M. confirmed she would presume defendant guilty unless the contrary was proved.
The prosecutor challenged D.M. under Bittaker, noting: "She has an opinion about guilt. She has opinions about penalty ... she's unfair to both sides ...." Defense counsel objected that the prosecutor did not have standing to make a challenge for cause under Bittaker. The trial court sustained the challenge, stating: "Counsel has the right to raise the issue of whether a juror can be fair and impartial, and this juror ... exhibits the presumption of guilt as to the defendant. I don't see it any way that she is fair and impartial."
(4) Excusal of Prospective Juror D.R.
On her juror questionnaire, in response to the question of whether defendant was guilty of the charges, Prospective Juror D.R. wrote, "Yeahprobably he did itbut why, what drove him to it, will he or could he be driven to it again?" She also stated she could not "handle knowing I was responsible for sending someone to the chair," or "responsibility for the death penalty." She disclosed that her fiancé was in prison for murder, and expressed the opinion that her fiancé would not be there if "he weren't poor, undereducated and Black." On voir dire, D.R. stated she did not know whether she would follow *1093 the law as instructed by the court. She stated that her recollection of the details of the case was "hazy," but if something presented in court conflicted with something she recalled from media reports, she would question what had been presented in court. Defense counsel asked, "If the court were to tell you that it's your responsibility as a juror to decide this case solely on the evidence presented here in court would you follow that instruction?" D.R. answered, "No."
The prosecutor challenged D.R. under Bittaker, supra, 48 Cal.3d 1046. Defense counsel asserted that the prosecutor did not have standing to make this challenge, and also argued that D.R.'s "hazy" recollections "would not in any way impinge on her ability to listen to the evidence." The prosecutor "note[d] once again, that a fair trial is the providence of the court and everyone who knows what her opinions are like, they could impinge on the prosecution in terms of what magnificent little details she'd dredge up during the course of the trial."
The trial court sustained the challenge. "This juror has come in, expressed that attitude that defendant is guilty.... She has said that she ... doesn't believe people tell the truth in court. She has said she cannot follow the court's instructions, follow the evidence in court. She said she would take whatever she remembers over what she sees in court. She has said she doesn't believe in the court system. She thinks that too many people make deals, and she trusts her perceptions far more than what is told to her.... It's abundantly clear to me that she is just totally unqualified to be a juror. I couldn't for the life of me understand why the defense persists in thinking that she above all the other people we've ever interviewed in this case, is going to be able to set aside whatever miniscule specific facts that she might have pertaining to this case and be a fair and impartial juror. She just flat out can't be. I think it would be a travesty of justice to let her remain on this case."
b. Analysis
(5) We held in Bittaker, supra, 48 Cal.3d at page 1090, that a prospective juror who "has an opinion based upon" media reports, "is qualified only if he affirmatively declares that he can and will act impartially. A declaration that he will try to be impartial, but doubts that he can succeed, is insufficient." (Italics omitted.)[10] Defendant describes the issue in the present case as "whether the prosecutor can make a Bittaker challenge to a juror on the *1094 ground that the juror has an opinion adverse to the defendant." The prosecutor's challenges and the trial court's rulings were not based, however, solely upon the ground that the prospective jurors held opinions adverse to defendant. Rather, the Bittaker challenges and the court's rulings were based upon these individuals' inability to set aside what they knew or believed concerning the case and to decide the issues based upon the evidence and pursuant to the court's instructions. Although particular opinions and beliefs expressed by these prospective jurors during voir dire revealed bias against defendant with respect to the issue of guilt, their answers also established they could not declare that they would decide the issues fairly and impartially based upon the evidence presented in court. Clearly, the prosecution's case could be harmed by jurors who would decide issues based upon rumors or information received outside of court, and who would not follow the court's instructions. Therefore, the premise of defendant's claim that the prosecutor lacked standing to challenge these prospective jurorsnamely, that the prosecutor was not aggrieved by the prospective jurors' beliefs and attitudesis mistaken.
Defendant's claim that the trial court erred in excusing the prospective jurors for cause also fails. "On review of a trial court's ruling, if the prospective juror's statements are equivocal or conflicting, that court's determination of the person's state of mind is binding. If there is no inconsistency, the reviewing court will uphold the court's ruling if substantial evidence supports it." (People v. Hillhouse (2002) 27 Cal.4th 469, 488 [117 Cal.Rptr.2d 45, 40 P.3d 754] (Hillhouse).) As noted above, L.R. and C.S. each repeatedly responded that they could not say whether they could set aside their impressions and opinions and decide the case based solely upon the evidence; D.M. stated she would decide based upon what she heard and saw in the press, unless the contrary was proven, and D.R. stated she would not follow an instruction that she decide the case solely upon the evidence presented in court. Thus, substantial evidence supports the trial court's *1095 findings that these jurors were not fair and impartial, and to the extent any of these jurors' responses were equivocal, the trial court's determination is binding.
(6) Defendant contends the trial court's decision to excuse these jurors because they were biased against defendant interfered with defendant's right to have his counsel make tactical decisions, in violation of his right to counsel, and deprived him of a number of peremptory challenges equal to those allotted the prosecution. This claim is forfeited. In the trial court, defendant never conceded that these prospective jurors were biased with respect to the issue of guilt, or asserted that they nonetheless were desirable to defendant because of their stated views in other areas. Thus, People v. Partida (2005) 37 Cal.4th 428 [35 Cal.Rptr.3d 644, 122 P.3d 765], upon which defendant relies, is inapplicable. Partida held that constitutional arguments raised for the first time on appeal are not forfeited if they do not invoke reasons different from those the trial court was asked to apply, but merely assert that the trial court's act or omission, to the extent erroneous for the reasons actually presented to that court, "had the additional legal consequence of violating" the Constitution. (Id. at p. 435.) Here, the trial court never had the opportunity to consider whether defendant had the right to retain prospective jurors concededly biased with respect to the issue of guilt, but acceptable to the defense for other tactical reasons.
(7) Moreover, as we have noted, these jurors properly were excused for reasons other than bias against defendant. Contrary to defendant's assertion, a trial court's proper grant of a prosecutor's challenge for cause neither confers upon the prosecution a greater number of peremptory challenges than the number to which it is entitled by statute, nor violates a defendant's right to counsel. Indeed, outside the context of challenges based upon juror views concerning the death penalty, a "[d]efendant has a right to jurors who are qualified and competent, not to any particular juror." (People v. Holt (1997) 15 Cal.4th 619, 656 [63 Cal.Rptr.2d 782, 937 P.2d 213].)
4. Defense challenges for cause
Defendant contends the trial court erred in denying a defense challenge to Prospective Juror E.D. for cause, in violation of his rights under the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution.[11] Following the court's refusal to excuse E.D., defendant used a peremptory challenge to excuse her.
*1096 (8) This claim is not preserved for appeal. Defendant exercised only 12 peremptory challenges, leaving him with eight remaining when he accepted the jury. (Code Civ. Proc., § 231, subd. (a).) "`To preserve a claim of error in the denial of a challenge for cause, the defense must exhaust its peremptory challenges....'" (Hillhouse, supra, 27 Cal.4th at p. 487.) Defendant contends his failure to exhaust available peremptory challenges was justified by his assertion in the trial court that, although he had eight challenges remaining, the venire included more than eight prospective jurors against whom he had made unsuccessful challenges for cause. We have rejected this contention above. (See ante, at p. 1085, fn. 8.)
Defendant asserts that this rulethat a defendant must exhaust all peremptory challenges before claiming on appeal that jurors should have been dismissed for causeforces a defendant to choose between (1) accepting a biased jury or (2) exercising all peremptory challenges and risking a jury panel that is more unfavorable to the defendant than the panel presently seated. Without citation to authority, he "proposes a different, and more reasonable, method of determining whether a jury is unfair." Defendant's proposed method would require the court to consider (1) whether the jurors selected appear, from their backgrounds and answers in voir dire, to be "highly unfavorable" from the defense's viewpoint, (2) whether the "highly unfavorable" jurors are balanced by the presence of jurors favorable to the defense, and (3) whether the defense, but not the prosecution, was forced to employ peremptory challenges to remove jurors whom the court should have removed for cause. Defendant's test would require appellate courts to engage in a highly subjective evaluation of the relative "favorability" of jury panels. We decline to adopt defendant's proposed test.
We also reject defendant's contention that the assertedly erroneous denial of the challenge for cause to Prospective Juror E.D. is "reversible error because it in effect deprived him of a peremptory challenge." "So long as the jury that sits is impartial, the fact that the defendant had to use a peremptory challenge to achieve that result does not mean the Sixth Amendment was violated." (Ross v. Oklahoma (1988) 487 U.S. 81, 88 [101 L.Ed.2d 80, 108 S.Ct. 2273]; id. at pp. 89-91 [the court also rejected a challenge under the 14th Amend.]); see People v. Richardson (2008) 43 Cal.4th 959, 987-988 [77 Cal.Rptr.3d 163, 183 P.3d 1146] ["where defendant did not exhaust all his peremptory challenges, he cannot even begin to demonstrate that his right to an impartial jury was impaired"]; People v. Ashmus (1991) 54 Cal.3d 932, 966 [2 Cal.Rptr.2d 112, 820 P.2d 214] ["That an allegedly biased juror might have sat had he or she not been removed by peremptory challenge does not implicate the right to a fair and impartial jury in any substantial way."], *1097 abrogated on other grounds in People v. Yeoman (2003) 31 Cal.4th 93, 117 [2 Cal.Rptr.3d 186, 72 P.3d 1166].)
B. Guilt phase issues
1. Denial of suppression motions
Defendant contends the trial court violated his rights under the Fourth, Fifth, Eighth, and Fourteenth Amendments to the United States Constitution by erroneously denying several motions to suppress.
a. Residence and vehicle search
(1) Factual background
On February 16, at approximately 6:10 p.m., Sunnyvale Department of Public Safety Detectives Davis and Messier, joined by five San Jose Police Department officers, forced entry into defendant's residence to search for victims. Davis and at least one other officer looked in rooms, under beds, and in closets, but did not open any cabinets or drawers. Davis observed in plain view a rifle standing against a dresser, a gas mask on top of a different dresser, and gun-cleaning equipment on the coffee table. Due to earlier confusion concerning defendant's current address, Davis briefly looked at documents on a table to determine whether there was mail addressed to defendant. Approximately five to 15 minutes elapsed during the search, after which all but one San Jose officer left. Nothing was seized. Between approximately 6:30 and 6:45 p.m., Davis informed Sunnyvale Department of Public Safety Detective Piatanesi that no victims had been found.
At approximately 8:00 p.m., Piatanesi called Davis and instructed him and Messier to search the residence for explosives and garage door openers. They searched for these items for approximately 15 to 20 minutes, this time opening cabinets and drawers. No such items were found, and nothing was seized. At approximately 8:30 p.m., defendant was taken into custody at ESL.
The next dayFebruary 17, 1988law enforcement officers sought and obtained warrants to search defendant's residence and his vehicle parked in front of the house. The affidavit in support of the warrants represented that law enforcement authorities sought evidence regarding firearms; body armor; incendiary, explosive, or detonation devices; ammunition; photographs of defendant, Laura Black, or ESL; documents to or from Black or ESL; medical documents related to defendant; documents related to defendant's employment at ESL and Covalent; and evidence of ownership and occupancy of, and possessory right to, the vehicle and the residence. The affidavit stated *1098 the following: utility records reflected that service at the residence was in defendant's name; defendant's former roommate identified defendant's vehicle in front of the house; defendant was a disgruntled former employee who had entered ESL and shot and killed seven individuals on February 16; an ESL employee identified defendant as the person who had entered the building with a shotgun; Laura Black stated defendant shot her at ESL on February 16, 1988, and had been harassing her for four years; on February 2, 1988, Black had obtained a TRO against defendant; an officer at the scene of the shooting had jumped inside the open motor home for cover and there observed a rifle with a scope, a large pile of empty ammunition boxes, and four gallons of inflammable liquid; Home Away From Home Rentals confirmed defendant had rented the motor home; and during the warrantless search of defendant's residence on February 16, a gas mask, a rifle, and gun-cleaning equipment were observed in plain view.
Defendant moved to suppress all evidence seized from his house and his vehicle. The trial court denied the motion.
(2) Analysis
Defendant contends the two warrantless entries on February 16 were invalid, the search warrants were tainted by evidence obtained illegally in the warrantless searches, and the warrants lacked probable cause and sufficient particularity. We need not decide whether the warrantless searches were justified because (1) even assuming that the first warrantless search was invalid and excising from the search warrant affidavit the evidence observed during the first search, the affidavit nonetheless provided probable cause to support issuance of the warrants, and (2) the second warrantless search disclosed no additional evidence.
(9) Probable cause to search exists when, based upon the totality of the circumstances described in the affidavit, "there is a fair probability that contraband or evidence of a crime will be found in a particular place." (Illinois v. Gates (1983) 462 U.S. 213, 238 [76 L.Ed.2d 527, 103 S.Ct. 2317]; People v. Kraft (2000) 23 Cal.4th 978, 1040-1041 [99 Cal.Rptr.2d 1, 5 P.3d 68] (Kraft); § 1525.) Excising from the search warrant affidavit the evidence observed during the first warrantless search (the gas mask, rifle, and gun-cleaning equipment), the affidavit alleged that defendant was a disgruntled former employee who on February 16 had entered ESL and shot and killed seven individuals, had harassed ESL employee Laura Black for four years and then shot her at ESL after the recent issuance of a TRO, and possessed a rifle with a scope, numerous empty boxes of ammunition, and inflammable liquid in the motor home he had rented and driven to ESL the day of the shooting. (People v. Weiss (1999) 20 Cal.4th 1073, 1081 [86 Cal.Rptr.2d 337, *1099 978 P.2d 1257].) These circumstances demonstrated a fair probability that evidence relevant to defendant's commission of the crimes existed in defendant's house and vehicle. (Illinois v. Gates, supra, 462 U.S. at p. 238; see People v. Gonzalez (1990) 51 Cal.3d 1179, 1206 [275 Cal.Rptr. 729, 800 P.2d 1159] (Gonzalez) [the court acknowledged case law "`recogniz[ing] that from the nature of the crimes and the items sought, a magistrate can reasonably conclude that a suspect's residence is a logical place to look for specific incriminating items'"].)
(10) We also reject defendant's contention that the categories of the search warrants lacked sufficient particularity and allowed the searching officers "almost" unfettered discretion. "A search warrant must `particularly describ[e] the place to be searched.' (U.S. Const., 4th Amend.; Cal. Const., art. I, § 13; see also Pen. Code, § 1525.) `The manifest purpose of this particularity requirement was to prevent general searches. By limiting the authorization to search to the specific areas and things for which there is probable cause to search, the requirement ensures that the search will be carefully tailored to its justifications, and will not take on the character of the wide-ranging exploratory searches the Framers intended to prohibit.' (Maryland v. Garrison (1987) 480 U.S. 79, 84 [94 L.Ed.2d 72, 107 S.Ct. 1013].)" (People v. Amador (2000) 24 Cal.4th 387, 392 [100 Cal.Rptr.2d 617, 9 P.3d 993].) "Whether the description in a warrant of property to be seized is sufficiently definite is a question of law subject to independent review by the appellate court." (Kraft, supra, 23 Cal.4th at p. 1041.)
Here, the warrants sought evidence of defendant's possession and ownership of weapons and explosives, photographs and documents related to Black and ESL, documents concerning his employment at Covalent, proof of ownership and of a possessory right to the residence and the vehicle, and his medical and psychiatric records. Such description was sufficiently definite to allow the officer conducting the search to identify the property to be seized, and to prevent a wide-ranging exploratory search.
b. Storage locker search
On February 25, 1988, Detective Piatanesi obtained a search warrant for the storage locker rented in Mei Chang's name the weekend before the commission of the crimes.[12] The supporting affidavit sets forth the same information as was provided in support of the warrant to search defendant's *1100 residence and vehicle. In addition, the affidavit noted that Mei Chang had rented the storage locker on February 13, three days before the shootings, at defendant's requestbecause he had credit problems and needed the space to store computers, books, and tools. The affidavit further observed that Chang was with defendant when the locker was rented, but not when he moved property into it.
In the course of searching the storage locker, Piatanesi observed an IBM computer among the locker's contents. On March 18, 1988, he obtained a second warrant to search the locker, authorizing seizure of the computer observed during the first search of the locker, "including all software and hardware."
Defendant contends the first warrant to search the storage locker lacked probable cause and sufficient particularity, and because of these defects, the second warrant authorizing seizure of the computer was based upon tainted evidence. As to the first search warrant, in light of the circumstance that any items stored in the locker were placed there sometime during the three days preceding the shootings, a magistrate reasonably could conclude there was probable cause to believe incriminating evidence would be found in the storage locker. (See Gonzalez, supra, 51 Cal.3d at p. 1206.) Because the search authorized by the warrant was virtually identical to the search authorized with respect to defendant's residence and vehicle, the warrant was sufficiently particular in describing the objects of the search, for the same reasons as stated above. Moreover, defendant has not identified any item seized that was admitted at trial. Accordingly, even if we were to assume "some provision of the warrant was overbroad, defendant has not shown that any evidence should have been suppressed." (People v. Carpenter (1999) 21 Cal.4th 1016, 1043-1044 [90 Cal.Rptr.2d 607, 988 P.2d 531] (Carpenter).)
Because we conclude the first search of the storage locker was proper, we reject defendant's contention that the second search warrant was tainted by the first assertedly unconstitutional search of the storage locker. His additional contentionthat documents from the telephone company, Pacific Bell, which were not identified in the warrant and were unrelated to the computer, improperly were seized in the second searchalso fails. The documents from Pacific Bell were seized pursuant to a search warrant directed to Pacific Bell, and the return to that separate warrant apparently was attached inadvertently to the return to the second storage locker search warrant. Piatanesi testified that diskettes,[13] not documents from Pacific Bell, were seized in connection with the second search of the locker.
*1101 c. Seizure of personnel records
On February 17, 1988, warrants were issued to search for documents and correspondence at ESL and Covalent relating to defendant, and to search his Covalent work area. The warrants were based upon the same affidavit that led to the issuance of warrants to search defendant's residence and vehicle. In addition to the information noted above, the affidavit stated that complaints regarding harassment are kept in personnel files, and based upon Detective Piatanesi's training and experience, individuals keep personal effects in their work areas. (See ante, at pp. 1098-1098.)
Defendant contends the affidavit in support of the warrants did not set forth facts adequate to establish probable cause to believe relevant evidence might be found at ESL and Covalent. We disagree. As noted, the facts enumerated in the affidavit indicated that on February 16 defendant killed seven individuals and shot Black at ESL because he was a disgruntled former employee and a rejected suitor of Black, he was subject to a recent TRO to stay away from Black, and he had driven a motor home filled with gallons of inflammable liquid, ammunition, and a pistol to ESL on the day of the shooting. In view of the nature of the crimes and the items sought, a magistrate reasonably could conclude defendant's employment files and work area were logical places to search for incriminating items. (Gonzalez, supra, 51 Cal.3d at p. 1206.)
(11) Defendant further contends the warrants lacked sufficient particularity, because they sought "[a]ny and all documents and correspondence relating to [defendant]." Again, we disagree. "[I]n a complex case resting upon the piecing together of `many bits of evidence,' the warrant properly may be more generalized than would be the case in a more simplified case resting upon more direct evidence." (People v. Bradford (1997) 15 Cal.4th 1229, 1291 [65 Cal.Rptr.2d 145, 939 P.2d 259].) In any event, defendant has not identified any item seized pursuant to these warrants that was admitted at trial. "Accordingly, even if we [were to] assume [these warrants were] overbroad, defendant has not shown that any evidence should have been suppressed." (Carpenter, supra, 21 Cal.4th at pp. 1043-1044.) Defendant speculates that evidence found during the search, even if not admitted at trial, may have been used to obtain evidence to counter the defense case in mitigation, but he fails to demonstrate any factual basis for this claim.
d. School and medical records search
Defendant contends warrants to obtain his school and medical records from the high school and several colleges he attended were overbroad. As he notes, however, no medical records were produced in response to the warrants, and the school transcripts that were produced were not introduced by the prosecution at trial. Hence there was no evidence admitted that should have been *1102 suppressed. (Carpenter, supra, 21 Cal.4th at pp. 1043-1044.) Defendant speculates that evidence found during the search, even if not admitted at trial, may have been used to obtain evidence to counter the defense case in mitigation, but he fails to demonstrate any factual basis for this claim.
2. Evidentiary rulings
Defendant claims that certain evidentiary rulings were erroneous and violated his rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution.
a. Letters to Laura Black
Defendant wrote Black approximately 150 to 200 letters. During the prosecution's direct examination of Black, 20 of these letters were admitted into evidence. The letters included the threatening comments noted above, and also showed defendant importuning Black to socialize with him, his obsessive need to know her whereabouts, his desire to buy a house with her, and information regarding his relationship with Mei Chang, his college classes, his work at Covalent and another company, his roommate, the foreclosure on his house, and his obligation to pay $30,000 to the IRS. The letters also included statements such as that defendant cared for Black and "tried never to really threaten you," "I wouldn't hurt you and I think you realized that," and "Jean," presumably Jean Tuffley, "should have sent us both to a marriage counselor to find out why we fight like an[] old married couple."
During defendant's cross-examination of Black, he sought to question her concerning 13 other letters he wrote to her. He asserted those letters were admissible under Evidence Code section 356,[14] because they were necessary to understand other documents admitted into evidence. The trial court admitted two of the 13 letters and excluded the remaining 11 letters as hearsay, stating that, although the latter letters pertained to the same general subjects as the letters proffered by the prosecution, they were "separate and distinct statements" from the letters proffered by the prosecution.
During defendant's testimony on direct examination, he again sought admission of the 11 letters, arguing they were necessary to understand defendant's state of mind and corroborated his testimony regarding his state *1103 of mind. He also argued they were admissible under Evidence Code section 356 to show the evolution and context of the letters. The trial court sustained the prosecutor's objection, ruling the letters were hearsay.
Near the conclusion of defendant's testimony on direct examination, defendant sought to introduce six additional letters. The court admitted two of these letters. The two letters, and the two previously proffered by defendant and admitted by the court, noted that over the prior period of nearly three years, defendant had "never hurt you or your property," referred to Black as the "love of my life," profusely apologized for past behavior, and asked Black to buy a house with him, enumerating 16 discussion points (such as what would happen if one person missed a monthly payment) for working "out an agreement that both of us can live by."
Defendant contends that all of the letters were admissible under Evidence Code section 356 during his testimony, because the letters presented "the true tenor of the correspondence" by showing "not only [defendant's] obsessive need for Black, but also his attempts to understand her, his concern with how she was feeling, and his attempts to control his behavior." He asserts, "[I]f it is unreasonable to introduce ... all 150 lettersthen at least a representative portion should be shown to the jury."
The trial court did not abuse its discretion in concluding that the proffered letters were not "necessary" to the jury's understanding of the letters introduced by the prosecution. (Evid. Code, § 356.) Rather, the letters proffered by the prosecution were "independently comprehensible" on the relevant topics of defendant's premeditation and intent to kill. (People v. Barrick (1982) 33 Cal.3d 115, 131, fn. 4 [187 Cal.Rptr. 716, 654 P.2d 1243] [postarrest statement not necessary to understand prearrest statement].)[15] Therefore Evidence Code section 356 did not provide a basis for the admission of these letters.
(12) Defendant also contends the letters were admissible to establish his state of mind. (See People v. Green (1980) 27 Cal.3d 1, 23, fn. 9 [164 *1104 Cal.Rptr. 1, 609 P.2d 468], disapproved on other grounds in People v. Martinez (1999) 20 Cal.4th 225, 239 [83 Cal.Rptr.2d 533, 973 P.2d 512], and People v. Hall (1986) 41 Cal.3d 826, 834, fn. 3 [226 Cal.Rptr. 112, 718 P.2d 99] [victim's out-of-court statement was not hearsay when offered as circumstantial evidence of the victim's state of mind rather than to prove the truth of the statement]; Evid. Code, § 1250, subd. (a)(1) [evidence of a statement of the declarant's then existing state of mind is not made inadmissible by the hearsay rule when offered to prove the declarant's state of mind].) Defendant testified, describing his various states of mind not only during the years he pursued Black and sent her numerous letters, but also when he received the TRO, as he thereafter prepared to confront Black, and as he undertook his assault upon the ESL facility. Moreover, the letters that were admitted established the facts he claims would have been adduced by the excluded letters, that is, defendant's purported love and concern for Black, his obsessive need for and delusion regarding her, and his attempts to control his behavior. Therefore, to the extent the letters he proffered establish the depth of his delusion, and thereby suggest "the destruction of the psychic reality [he] had constructed and maintained in his mind for four years" and explain his state of mind during his rampage, their exclusion was harmless. It is not reasonably probable a result more favorable to defendant would have been reached had the letters been admitted to establish his state of mind. (See People v. Watson (1956) 46 Cal.2d 818, 836 [299 P.2d 243].) Although defendant makes no persuasive argument supporting his contention that the exclusion of the letters constitutes a violation of his right to present a defense, we observe that, in light of the extensive evidence presented relating to defendant's state of mind, exclusion of the proffered letters also was harmless beyond a reasonable doubt. (See Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 87 S.Ct. 824].)[16]
b. Impeachment of Gerald Hirst
As noted above, Gerald Hirst testified that when he, Lawrence Kane, and defendant met approximately two months prior to defendant's commission of the crimes, they discussed how to get through ESL's security doors and fantasized about shooting ESL's equipment. During their conversation, defendant learned where Black's and Hirst's offices were located. (See ante, at p. 1063.)
The trial court ruled in limine that defendant would not be allowed to impeach Hirst with evidence establishing that in 1986, Hirst had suffered a *1105 misdemeanor conviction for child molestation, or with the conduct underlying that conviction. The court did not state the basis for its ruling.
Even assuming the trial court erred in precluding impeachment of Hirst with evidence of his act of child molestation, defendant fails to demonstrate, as he must, that the "cross-examination would have produced `a significantly different impression of [the witnesses'] credibility.'" (People v. Frye (1998) 18 Cal.4th 894, 946 [77 Cal.Rptr.2d 25, 959 P.2d 183] (Frye), disapproved on other grounds in Doolin, supra, 45 Cal.4th at p. 421, fn. 22.) The accuracy and veracity of Hirst's testimony was undermined by other evidence: he was completely deaf in one ear; he was depressed and in therapy at the time of the conversation with defendant; he refused to allow the police to record interviews with him; and his earlier statements to the police that his conversation with defendant occurred at the time Hirst left ESL in January 1988, and that he knew Black, were inconsistent with his trial testimony that the conversation occurred in December 1987, and that he did not know Black.
Moreover, and contrary to defendant's contention, Hirst's testimony was not "the single most important evidence of premeditation offered by the prosecution." Rather, aside from this testimony, there was overwhelming evidence of premeditation with respect to all of the killings, including the murder of Lawrence Kane. During the two years preceding commission of the crimes, defendant told several individuals at ESL that he possessed guns and either knew how or was not afraid to use them. Although he discussed shooting ESL equipment with Hirst, during that same time period he mentioned the shooting massacre at the San Ysidro McDonald's to a different witness, Burch, and wondered what ESL would do if he committed such a massacre there. Days before the shooting spree, defendant sold his truck for much less than it was worth, rented a storage locker, purchased a new Benelli shotgun by tendering a bad check, purchased large amounts of ammunition, practiced shooting "man-shaped" targets, rented a motor home that allowed him to prepare for his assault without observation, and changed his life insurance beneficiary. His will was left on top of his computer terminal. Finally, on February 16, 1988, defendant entered ESL during work hours, heavily armed.
c. Evidence of defendant's interest in flame guns
During the direct testimony of Mei Chang, defense counsel sought to preclude reference to an incident that occurred the weekend preceding commission of the crimes, when defendant expressed interest in a flame gun. The court overruled the objection, finding the evidence relevant and not unduly prejudicial under Evidence Code section 352.
*1106 Chang testified that on the night of Valentine's Day, she and defendant watched the movie Rambo (Anabasis N.V. 1982). The prosecutor inquired whether defendant told Chang "to pay any special attention to some parts of the movie?" Chang identified "[t]he firing," and explained, "in the movie lots of fire guns, fires." The prosecutor asked, "Did he say anything about any particular kind of gun?" Chang responded, "I think that's the one he was using, the one with a lot of fire out. A fire gun."
We reject defendant's contention that the evidence was irrelevant and inflammatory. The evidence was relevant because it demonstrated defendant's continuing interest in firearms during a period immediately preceding defendant's charged criminal conduct. When contrasted with defendant's murderous assault two days later, the evidence cannot be characterized as unduly inflammatory. The trial court did not abuse its discretion in admitting this evidence. (People v. Barnett (1998) 17 Cal.4th 1044, 1118 [74 Cal.Rptr.2d 121, 954 P.2d 384] (Barnett) [applying abuse of discretion standard of review].) Nor did its admission violate defendant's right to a fundamentally fair trial.
d. Conversation between Dennis Elliott and defendant
As noted above, Dennis Elliott, who previously had supervised defendant at ESL, described at trial a conversation he had with defendant in March or April 1986. Elliott had reported to defendant what Elliott had heard concerning defendant's conduct toward "some girl," and had urged defendant to stop harassing her at work. Defendant had responded by expressing anger and defiance.
Prior to Elliott's testimony regarding his conversation with defendant, defendant objected that neither what Elliott had heard from other persons, nor his conversation with defendant years before the charged crimes, was relevant to defendant's state of mind on February 16, 1988, and that the testimony was unduly prejudicial under Evidence Code section 352. The trial court overruled this objection, stating that testimony concerning what Elliott had heard about defendant "chasing some girl" was being offered solely to explain why Elliott spoke to defendant. Although the record is somewhat ambiguous, it appears the court also ruled that the testimony of the conversation between defendant and Elliott was relevant and not unduly prejudicial or time consuming under section 352.
Defendant contends that what Elliott heard from others about defendant "chasing some girl" was hearsay. He also contends that Elliott's conversation with defendant was irrelevant because it occurred two years before the murders and did not imply "any threat to kill anyone or to damage ESL *1107 property." Defendant did not make a hearsay objection below, nor did he argue that the conversation was irrelevant because it did not threaten violence or damage. Therefore, these claims are forfeited and, moreover, are without merit, as are his remaining relevance claims. As the trial court observed, testimony regarding what Elliott heard was not hearsay because it was not offered for its truth. It was relevant to explain why Elliott had a conversation with defendant. Defendant's defiant response to Elliott's advice that he just do his job and avoid "hassling" a female coworker was relevant to defendant's state of mind, and to the prosecutor's theory that defendant acted on February 16 in retaliation for perceived wrongs by ESL and Laura Black. In addition, the prosecution properly was permitted to demonstrate the circumstances that led over time to defendant's termination, and ultimately to his attack on ESL.
e. Jean Tuffley's testimony
Before trial, and again shortly before Tuffley testified, defendant moved to exclude evidence of the February 1986 conversation between Tuffley and defendant in which, according to Tuffley, defendant said, "if we terminated him, that his life would be over, he'd have nothing to live for, and that he had guns and he wasn't afraid to use them, and that if we terminated him, it would be over for him and he'd take people with him." Tuffley asked, "Rich, are you saying that you would kill me?" According to Tuffley, defendant said, "`Yes, but I would take others, too.'" Defendant asserted that the conversation was so remote in time that it was irrelevant and immaterial, that it was improper character evidence under Evidence Code section 1101, and that under Evidence Code section 352 its minimal probative value was outweighed by its prejudicial impact. Defendant also objected to Tuffley's testimony that defendant's comments put her in fear, and led to ESL's assigning a different human resources person to deal with defendant, on the ground Tuffley's state of mind was irrelevant. The trial court denied the defense motions and overruled the objection.
Defendant claims that his mental state at the time of this conversation with Tuffley was irrelevant because he "did not kill or attempt to kill Tuffley," and "did not kill anyone when he was terminated." Although defendant did not kill Tuffley, who was not present at M-5 on the afternoon of February 16, 1988, his threats to her anticipate the scenario ultimately played out in the crimes that later were committed. Hence the statements were powerful evidence of long-standing motive and intent. They demonstrated that defendant's 1988 assault on ESL was not a spontaneous occurrence, but a planned attack and the culmination of a grudge he nursed for at least two years.
Defendant also claims Tuffley's testimony that defendant's comment made her fearful and led to ESL's transferring responsibility over defendant from *1108 Tuffley to her superior, Allen, should have been excluded because Tuffley's state of mind was not at issue "and the balance of the testimony is hearsay." We disagree. Tuffley's fear demonstrated she perceived the threat as serious. Likewise, the circumstance that the personnel matter was transferred to someone else dispelled any inference that Tuffley did nothing about the problem and thus apparently did not believe defendant's threat was genuine. Finally, contrary to defendant's contention, testimony that someone else assumed responsibility for defendant's personnel matters was not an out-of-court statement and hence was not hearsay. We conclude the trial court did not abuse its discretion in admitting Tuffley's testimony. (See Barnett, supra, 17 Cal.4th at p. 1118.) We therefore reject defendant's contention that its admission violated his rights to due process and a reliable verdict.
f. Evor Vattuone's testimony
Before Evor Vattuone testified, defendant sought to exclude reference to Vattuone's conversation with defendant in late February or March 1986, in which defendant told Vattuone that if defendant were to be served with a restraining order, he would be very upset and did not know how he would respond, and that "he had guns and he wasn't afraid to use them." Defendant contended the conversation was irrelevant because it occurred almost two years before defendant was served with the TRO, constituted improper character evidence under Evidence Code section 1101, and was unduly prejudicial under Evidence Code section 352. The trial court found the evidence was relevant and was not character evidence, and that its probative value outweighed any prejudicial effect.
Defendant contends this testimony should have been excluded because in his conversation with Vattuone defendant did not threaten to kill anyone; rather he said he did not know how he would respond. Defendant also contends his state of mind in 1986, and particularly his uncertainty concerning how he would respond to a restraining order, was irrelevant. Defendant did not, however, state only that he did not know how he would react; he said he had guns and was not afraid to use them. This statement reasonably may be construed as a threat. Moreover, according to Vattuone, when defendant said he did not know what he would do, he did not seem perplexed, but serious and deliberate. Defendant's statements to both Tuffley and Vattuone indicate he planned to shoot individuals at ESL if his access to Black was limited. Far from irrelevant, his statements constituted evidence establishing that he already was contemplating his eventual assault two years prior to the ultimate event. We find no abuse of discretion and no infringement upon defendant's right to due process and a reliable verdict.
*1109 g. Lieutenant Dow's testimony that Black felt threatened
Sunnyvale Department of Public Safety Lieutenant Chris Dow, called by the defense, testified that he interviewed Black twice in March 1988 following the shootings. Black told Dow that she decided not to seek a restraining order after she was told ESL would not pay for it. On June 1, 1988, after reviewing a copy of Dow's report, Black amended this statement to say that an additional reason she did not obtain a restraining order was that she did not have the time to do so. Defense counsel asked Dow, "Did she tell you ... on June 1st ... that the reason she didn't get a restraining order was because she was afraid of [defendant]?" Dow answered, "No." Defense counsel asked, "Did she tell you on June 1st ... that the reason[] she didn't get the restraining order was because she was concerned with what [defendant] might do?" Dow answered, "No."
On cross-examination, the prosecutor inquired whether Black told Dow, during "either of the taped conversations" about the restraining order, "that she also didn't get a restraining order because she figured it wasn't against the law for the Defendant to be on a public street?" Dow responded, "Yes." The prosecutor asked, "Did you ever ask her specifically whether she didn't get a TRO or restraining order because she was afraid of the Defendant?" Dow responded, "No." The prosecutor then asked, "Did Miss Black, in the course of those conversations, tell you that the Defendant had threatened her?" Defendant objected that the question was beyond the scope of the direct examination, which, he claimed, was limited to Dow's conversation with Black on June 1. The objection was overruled, and Dow answered, "Yes."
(13) Defendant contends his objection should have been sustained under Evidence Code section 773, because the direct examination was "limited to the concerns that influenced Black's initial decision not to get a restraining order. They did not open up the content of all of her conversations with Dow." "Cross-examination ... `may be directed to the eliciting of any matter which may tend to overcome or qualify the effect of the testimony given ... on direct examination.' [Citation.] The cross-examination is not `confined to a mere categorical review of the matters, dates or times mentioned in the direct examination.'" (People v. McClellan (1969) 71 Cal.2d 793, 811 [80 Cal.Rptr. 31, 457 P.2d 871].) Defendant's questioning of Dow may have left the jury with the impression that Black was not frightened by defendant. The prosecutor properly was allowed to question Dow concerning other statements made by Black that tended to establish she was frightened by defendant. (See People v. Farnam (2002) 28 Cal.4th 107, 187-188 [121 Cal.Rptr.2d 106, 47 P.3d 988] [the prosecutor was entitled to ask the defendant questions on cross-examination to rebut impressions left by the defendant's testimony].) Thus, the trial court did not abuse its discretion in allowing cross-examination *1110 of Dow concerning Black's statements to Dow regarding threats made by defendant against Black. (See People v. Lancaster (2007) 41 Cal.4th 50, 102 [58 Cal.Rptr.3d 608, 158 P.3d 157] ["`It is settled that the trial court is given wide discretion in controlling the scope of relevant cross-examination.'"].)
h. Alleged pattern of inconsistent determinations
Defendant contends the trial court's evidentiary rulings reveal a pattern of inconsistent determinations that compromised the fairness of the trial and unfairly favored the prosecution. This essentially is a claim of judicial bias, which defendant forfeited by failing to assert it below. (People v. Samuels (2005) 36 Cal.4th 96, 114 [30 Cal.Rptr.3d 105, 113 P.3d 1125]; see People v. Chatman (2006) 38 Cal.4th 344, 362-363 [42 Cal.Rptr.3d 621, 133 P.3d 534].) It also is without merit. We have rejected all of defendant's claims of evidentiary error except for assumed error in the exclusion of evidence of Hirst's prior misdemeanor conviction, and in the exclusion of defendant's letters as evidence of his state of mind. Although defendant summarily cites many additional examples in his supplemental opening brief which, he claims, illustrate that the trial court made erroneous and inconsistent rulings, he provides no analysis to establish that the trial court abused its discretion in connection with any of these rulings. "[A] trial court's numerous rulings against a partyeven when erroneousdo not establish a charge of judicial bias, especially when they are subject to review." (People v. Guerra (2006) 37 Cal.4th 1067, 1112 [40 Cal.Rptr.3d 118, 129 P.3d 321].) Defendant fails to demonstrate any judicial misconduct or bias, let alone misconduct or bias that was so prejudicial that it deprived defendant of "`"a fair, as opposed to a perfect, trial."'" (Ibid.)
i. Cumulative error
Defendant contends the trial court's errors on the evidentiary rulings were individually and cumulatively prejudicial because they deprived him "of his right to present probative evidence or exclude prejudicial evidence," and constituted "an invidious and pervasive pattern of biased rulings." As noted, we have assumed error only in the exclusion of evidence related to Hirst's prior misdemeanor conviction, and in the exclusion of defendant's letters as evidence of his state of mind. Hirst was impeached through other testimony, and the issues to which Hirst's testimony and the excluded letters were relevant were established by other overwhelming evidence. Defendant was not prejudiced under any standard by these two evidentiary rulings. Nor, once again, has any bias been demonstrated.
*1111 3. Alleged instructional error
a. Felony-murder and felony-murder special-circumstance instructions based upon burglary allegations
The prosecution proceeded on two theories of first degree murder: (1) all of the homicides were willful, deliberate, and premeditated, and (2) the homicides perpetrated within the M-5 building were committed in the course of a burglary. (§ 189.)[17] The trial court instructed the jury on two theories of burglary: "Every person who enters any building with a specific intent to commit assault with a firearm upon the person of Laura Black in violation of Penal Code Section 245(a)(2) or with the specific intent to commit malicious damage of property of a value in excess of five thousand dollars in violation of [former] Penal Code Section 594(b)(1), each a felony, is guilty of the crime of burglary in violation of Penal Code section 459." (Italics added; see also § 459 [any person who enters a defined structure with the intent to commit any felony is guilty of burglary].) The court also gave an instruction based upon the felony-murder rule: "The unlawful killing of a human being ... which occurs during the commission or attempted commission ... of the crime of burglary is murder of the first degree when the perpetrator had the specific intent to commit such crime." The court further explained that "[a] homicide is committed in the perpetration of a burglary if the killing and the burglary are parts of one continuous transaction," but "[t]here is no requirement that the homicide occur while committing or while engaged in the burglary or that the killing be a part of the burglary other than that the two acts be part of one continuous transaction." Finally, the court instructed the jurors that they could find true the special circumstance allegation that defendant committed a murder while engaged in the commission or attempted commission of a burglary if defendant committed a murder while committing or attempting to commit a burglary, and did so to carry out or advance the *1112 commission of the burglary or to facilitate his escape or avoid detection. The court's instructions made clear that the special circumstance allegation was not established if the burglary or attempted burglary was merely incidental to the commission of the murder.[18]
Defendant claims that neither burglary theory supports a finding that the homicides committed within building M-5 constituted felony murder. First, defendant asserts, the charge of burglary with the intent to commit property damage in excess of $5,000 could be either a felony or a misdemeanor under former section 594, subdivision (b)(1), depending upon the sentence imposed by the court. Therefore, defendant contends, he could not have entered ESL's facility with the intent to commit a felony, and thus could not be found guilty of burglary. Second, defendant asserts, the burglary premised upon entry with intent to assault Black would have "merged" with the death of Black, had she been killed, and would not have constituted a felonyindependent of the killing itselfupon which to base a theory of felony murder. (People v. Wilson (1969) 1 Cal.3d 431 [82 Cal.Rptr. 494, 462 P.2d 22] (Wilson).) Therefore, he contends, his entry with the intent to assault Black cannot serve as the basis for the felony murder of six other victims who were killed inside the ESL facility, nor can it support a special circumstance finding that the murders occurred while defendant was engaged in committing a burglary. Defendant claims the giving of the foregoing instructions violated his rights under the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution.
(14) Defendant's first challenge to the felony-murder instruction is that a violation of former section 594, subdivision (b)(1) "is not a felony but a wobbler, whose ultimate classification will depend on the judge's sentence."[19] Consequently, he contends, a burglary count based upon an entry with intent to violate former section 594, subdivision (b)(1) is not a felony burglary. A felony, however, is defined as "a crime which is punishable with death or by imprisonment in the state prison." (§ 17, subd. (a), italics added.) Former section 594, subdivision (b)(1) provided that "[i]f the amount of defacement, damage or destruction is five thousand dollars ($5,000) or more, vandalism is punishable by imprisonment in the state prison ...." That a judge ultimately *1113 may impose a sentence other than state prison, making the crime a misdemeanor, does not remove former section 594, subdivision (b)(1) from the class of crimes that may form the basis for a burglary conviction. (See § 17, subd. (b)(1); see also People v. Rathert (2000) 24 Cal.4th 200, 202, 208 [99 Cal.Rptr.2d 779, 6 P.3d 700] [the defendant was convicted of burglary predicated upon felony false personation, which crime is a "wobbler"].) The instructions required the jury, in order to find defendant guilty of burglary, to find that he entered with the intent to cause property damage in excess of $5,000. Such conduct is punishable by imprisonment in state prison. That is sufficient to establish the commission of a felony supporting the giving of the burglary instruction.[20]
(15) Defendant's second challenge to the felony-murder instruction is that the entry with the intent to assault Black merged with the six homicides committed inside ESL's facility. His theory finds its roots in People v. Ireland (1969) 70 Cal.2d 522, 539 [75 Cal.Rptr. 188, 450 P.2d 580] (Ireland), in which the defendant was found guilty of the second degree murder of his wife, whom he fatally assaulted with a firearm. We concluded that the jury instructions may have been understood to direct the jury to "find defendant guilty of second degree murder if it found only that the homicide was committed in the perpetration of the crime of assault with a deadly weapon" (ibid.), and we held that it was error to instruct the jury concerning felony murder in these circumstances. Our opinion in Ireland explained that use of the felony-murder rule in cases in which the defendant is charged with assaulting and killing the victim "would effectively preclude the jury from considering the issue of malice aforethought in all cases wherein homicide has been committed as a result of a felonious assaulta category which includes the great majority of all homicides. This kind of bootstrapping finds support neither in logic nor in law." (Ibid.)
In Wilson, supra, 1 Cal.3d 431, we extended Ireland's merger doctrine to first degree felony murder based upon a burglary committed with the intent to assault the murder victim. The first degree felony-murder rule is set forth in section 189: "All murder which is ... committed in the perpetration of, or attempt to perpetrate, [certain enumerated felonies, including] burglary, ... is murder of the first degree." In Wilson, the instructions authorized the jury to find the defendant guilty of first degree murder if "he entered [his wife's] bathroom with an intent to commit an assault with a deadly weapon and thereby committed a burglary, in the course of which he killed his wife." *1114 (1 Cal.3d at p. 439.) We observed that "the only basis for finding a felonious entry is the intent to commit an assault with a deadly weapon," and concluded that, "[w]hen, as here, the entry would be nonfelonious but for the intent to commit the assault, and the assault is an integral part of the homicide and is included in fact in the offense charged, utilization of the felony-murder rule extends that doctrine `beyond any rational function that it is designed to serve.'" (Id. at p. 440.) Therefore, we held that "an instruction on first degree felony murder is improper when the underlying felony is burglary based upon an intention to assault the victim of the homicide with a deadly weapon." (Id. at p. 442, italics added.)
Defendant proposes that the merger rule established in Wilson be extended further to prohibit application of the felony-murder rule when the burglary charge is based upon an intention to assault someone other than the victim of the homicide. Defendant relies upon People v. Sears (1970) 2 Cal.3d 180 [84 Cal.Rptr. 711, 465 P.2d 847] (Sears), in which the defendant entered his estranged wife's home and assaulted her and her daughter, killing the daughter. The jury instructions, together with the trial court's answer to a question from the jury, "could reasonably be understood to mean that if defendant entered with intent to assault his wife and stepdaughter he was guilty of burglary and that the first degree felony-murder rule was applicable." (Id. at p. 188 (lead opn. of Peters, J.), italics added.) Therefore, under the principles enunciated in Ireland, supra, 70 Cal.2d 522, and Wilson, supra, 1 Cal.3d 431, Justice Peters's lead opinion, in which Chief Justice Traynor and Justice Tobriner concurred, held that the merger doctrine precluded reliance upon the felony-murder rule to find the defendant guilty of first degree murder. In his concurring opinion, in which Justices Burke and Sims (assigned) concurred, Justice Sullivan stated that he "agree[d] generally ... that the court's instructions on the first degree felony-murder rule in this case were erroneous .... However, I do not agree with, and do not join in, the additional views of the [lead opinion], relating to the felony-murder rule." (Sears, at p. 191 (conc. opn. of Sullivan, J.).)[21]
Defendant relies upon the "additional views" of the lead opinion, to which Justice Sullivan's concurring opinion referred. (Sears, supra, 2 Cal.3d at p. 191 (conc. opn. of Sullivan, J.).) Those additional views related to the Attorney General's theory that the evidence also supported the conclusion that the defendant entered with the intent to assault his wife but not his stepdaughter, and "that the felony-murder rule is applicable on the theory that the burglary based on the intent to assault the wife was independent of and collateral to the killing of the stepdaughter." (Id. at p. 188 (lead opn. of Peters, J.).) The lead opinion responded that "the instructions given to the jury did not posit the applicability of the felony-murder rule upon any such *1115 theory." (Id. at p. 189.) Nonetheless, the lead opinion expressed the view that "[i]t would be anomalous to place the person who intends to attack one person and in the course of the assault kills another inadvertently or in the heat of battle in a worse position than the person who from the outset intended to attack both persons and killed one or both." (Ibid.)
As our summary reflects, a majority of the justices in Sears agreed only that the actual instruction and the court's answer to a jury inquirywhich reasonably could be understood to signify that "if defendant entered with intent to assault his wife and stepdaughter he was guilty of burglary and ... the first degree felony-murder rule was applicable" (Sears, supra, 2 Cal.3d at p. 188 (lead opn. of Peters, J.), italics added)were inconsistent with the merger doctrine (ibid.). Furthermore, the additional views expressed in response to the Attorney General's theory are dicta in the lead opinion itself. Thus, the lead opinion and the concurring opinion in Sears establish only that if the jury in the present case had been instructed that defendant entered ESL's facility with the intent to assault all of his homicide victims, the merger doctrine would have precluded reliance upon the felony-murder rule to find defendant guilty of first degree murder.
(16) Following our opinion in Sears, supra, 2 Cal.3d 180, we have assumed that the felony-murder rule applies to a burglary in which there was an intent to assault an individual other than the homicide victim. (See People v. Gutierrez (2002) 28 Cal.4th 1083 [124 Cal.Rptr.2d 373, 52 P.3d 572] (Gutierrez.)) In Gutierrez, the defendant forced his way into his estranged wife's home, and while his accomplice held a gun to the wife in the living room, the defendant forced his way into the bathroom and killed his wife's boyfriend. The jury was instructed on first degree felony murder based upon burglary committed by the defendant with the intent to commit five target felonies, including assault with a deadly weapon upon his wife. We upheld the defendant's first degree murder conviction, observing: "Notably, [the killing of the boyfriend] was not alleged as a target offense of the burglary.... Had the independent target offenses not been alleged in connection with the burglary charge, the merger doctrine might have applied. (See People v. Wilson[, supra,] 1 Cal.3d [at pp.] 439-442.)" (Gutierrez, supra, 28 Cal.4th at p. 1140, fn. 7.) Similarly, in the present case, the assaults upon victims other than Black were not alleged as target offenses of the burglary. Rather, only the target offenses of intent to assault Black and to vandalize were alleged in connection with the burglary charge. Therefore, the target *1116 offenses alleged by the prosecutor did not merge with the killings of the six individuals inside the M-5 building, and there was no error in the instruction on felony murder.[22]
Although our jurisprudence, including the decision in Wilson, supra, 1 Cal.3d 431, supports the conclusion that defendant's entry with intent to assault Black did not merge with the six homicides committed within the ESL facility, we acknowledge that our past decisions applying the merger doctrine to first degree felony murder premised upon burglary have resulted in questionable distinctions. As illustrated by Sears, supra, 2 Cal.3d 180, whether a defendant may be convicted of felony murder may depend upon whether the prosecutor chooses to allege and prove that the defendant entered *1117 with the intent to assault only one victim, or also intended to assault another person, the homicide victim. As illustrated by Gutierrez, supra, 28 Cal.4th 1083, a defendant who enters with the intent only to assault the homicide victim may not be convicted of felony murder, but a defendant who also harbors an intent to commit a less serious felony may be found guilty of felony murder in connection with the intended assault.
In addition to these analytical anomalies, we note that our recent opinion in Chun, supra, 45 Cal.4th 1172, which analyzed the basis of the second degree felony-murder rule, has highlighted the difference between the sources of the second degree felony-murder rulethe context in which the merger doctrine developedand the first degree felony-murder rule. In Chun, we recognized that the second degree felony-murder rule reflects a judicial interpretation of section 188's definition of implied malice. Consequently, the merger doctrine developed as a judicial interpretation of section 188. This clarification raises the question of whether Wilson's application of the merger doctrine in the context of first degree felony murder is an appropriate "interpretation" of section 189's definition of first degree felony murder. For the reasons set forth below, we conclude that Wilson, supra, 1 Cal.3d 431, erred in extending the merger doctrine to first degree felony murder.[23]
(17) "The [felony-murder] rule has two applications: first degree felony murder and second degree felony murder.... First degree felony murder is a killing during the course of a felony specified in section 189, such as rape, *1118 burglary, or robbery. Second degree felony murder is `an unlawful killing in the course of the commission of a felony that is inherently dangerous to human life but is not included among the felonies enumerated in section 189 . . . .' [Citation.]" (Chun, supra, 45 Cal.4th at p. 1182.) The source of the second degree felony-murder rule has been questioned over the years, with some members of this court expressing concern that the rule lacked a statutory basis. (Id. at pp. 1182-1183.) We resolved the issue in Chun, in which we explained that the second degree felony-murder rule "is simply another interpretation of section 188's `abandoned and malignant heart' language" (id. at p. 1184) and, therefore, is based upon statute[24] (Chun, at p. 1188).
(18) Chun's identification of the statutory basis of the second degree felony-murder rule focuses our inquiry upon the statutory basis of the first degree felony-murder rule. Section 189 provides in relevant part that "[a]ll murder ... which is committed in the perpetration of, or attempt to perpetrate, arson, rape, carjacking, robbery, burglary, mayhem, kidnapping, train wrecking, or any act punishable under Section 206, 286, 288, 288a, or 289, ... is murder of the first degree." As we recently reiterated, "`It is the duty of this court in construing a statute to ascertain and give effect to the intent of the Legislature.'" (Richardson v. Superior Court (2008) 43 Cal.4th 1040, 1048 [77 Cal.Rptr.3d 226, 183 P.3d 1199].) "We begin with the language of the statute, affording the words their ordinary and usual meaning and viewing them in their statutory context." (Alcala v. Superior Court (2008) 43 Cal.4th 1205, 1216 [78 Cal.Rptr.3d 272, 185 P.3d 708].)
(19) We find no ambiguity in the language of section 189. It provides that a killing committed in the perpetration of or attempt to perpetrate the enumerated felonies, including burglary, is first degree murder. Burglary has been a delineated felony supporting first degree felony murder since section 189 was enacted in 1872,[25] and indeed since the crime of murder was divided into first and second degree in 1856. (Stats. 1856, ch. 139, § 21, p. 219; see Chun, supra, 45 Cal.4th at p. 1185.) In enacting section 189, the Legislature did not limit the definition of burglary, or exclude burglaries based upon an intent to assault. Rather, section 189 applies the felony-murder rule to all burglaries. Under section 459, also enacted in 1872, burglary is committed when the defendant "enters any [defined structure] with intent to commit *1119 grand or petit larceny or any felony," including assault. (§ 459,[26] italics added; see People v. Seaton (2001) 26 Cal.4th 598, 646 [110 Cal.Rptr.2d 441, 28 P.3d 175] ["intent to unlawfully kill or to commit felonious assault" will sustain a burglary conviction].) Thus, nothing in the language of section 189 supports the application of the merger doctrine to its terms.
(20) We repeatedly have observed that "`"the power to define crimes and fix penalties is vested exclusively in the legislative branch." (Keeler v. Superior Court[ (1970)] 2 Cal.3d 619, 631 [87 Cal.Rptr. 481, 470 P.2d 617]...; [citations].)'" (Chun, supra, 45 Cal.3d at p. 1183.) The courts may not expand the Legislature's definition of a crime (Keeler v. Superior Court, supra, 2 Cal.3d at p. 632), nor may they narrow a clear and specific definition. (21) In the context of second degree felony murder, courts must interpret section 188's reference to an "`abandoned and malignant heart.'" (Chun, supra, 45 Cal.4th at p. 1181.) In the context of first degree felony murder, however, there is no need for interpretation of the Legislature's clear language. Thus, the differences between the statutory bases for first and second degree felony murder support the conclusion that although this court properly may limit the breadth of second degree felony murder in a manner consistent with its interpretation of the Legislature's intent, there is no room for interpretation when the Legislature has defined first degree felony murder to include any killing "committed in the perpetration of, or attempt to perpetrate, ... burglary." (§ 189.)
Because the power to define crimes lies exclusively with the Legislature, our decision in Wilson, supra, 1 Cal.3d 431, erred in narrowing the Legislature's clear and specific definition of first degree murder. In Wilson, we expressed the view that "[w]here a person enters a building with an intent to assault his victim with a deadly weapon, he is not deterred by the felony-murder rule." (Id. at p. 440.) Although we recognized that crimes committed inside structures entail greater risks to the occupants, we concluded that "this rationale does not justify application of the felony-murder rule to the case at bar. Where the intended felony of the burglar is an assault with a deadly weapon, the likelihood of homicide from the lethal weapon is not significantly increased by the site of the assault." (Id. at pp. 440-441.) Finally, we concluded that the burglary statute "includes within its definition numerous structures other than dwellings as to which there can be no conceivable basis for distinguishing between an assault with a deadly weapon outdoors and a *1120 burglary in which the felonious intent is solely to assault with a deadly weapon."[27] (Wilson, at p. 441, fn. omitted.)
We disagree with Wilson's view that applying the felony-murder rule to a killing committed in the course of a burglary, with an intent to assault, serves no purpose. First, a person who enters a building with the intent to assault, rather than to kill (in which case the felony-murder rule would be unnecessary), may be deterred by the circumstance that if the victim of the assault dies, the burglar "will be deemed guilty of first degree murder." (People v. Burton (1971) 6 Cal.3d 375, 388 [99 Cal.Rptr. 1, 491 P.2d 793].) Second, the circumstance that the degree to which the peril is heightened may vary, depending upon the particular structure in which the assault occurs, does not negate the purpose of deterring assaults and the heightened risks entailed by assaults that are committed within structures. Individuals within any type of structure are in greater peril from those entering the structure with the intent to commit an assault, than are individuals in a public location who are the target of an assault. (Miller, supra, 297 N.E.2d at p. 87.) Victims attacked in seclusion have fewer means to escape, and there is a diminished likelihood that the crimes committed against them will be observed or discovered. These risks are present regardless of whether the burglary and assault occur in a home, a tent, or a trailer coach. (See ante, fn. 27.) For these reasons, we reject Wilson's conclusion that no purpose is served by applying the felony-murder doctrine to a burglary premised upon an intent to assault.
(22) Defendant contends, however, that the Legislature's failure to amend section 189 in response to Wilson, despite having amended the statute in other respects, demonstrates that this body is not "troubled by this Court's merger jurisprudence." "[W]e frequently have expressed reluctance to draw conclusions concerning legislative intent from legislative silence or inaction." (People v. Cruz (1996) 13 Cal.4th 764, 784 [55 Cal.Rptr.2d 117, 919 P.2d 731].) Here, although the Legislature has not "affirmatively disapproved" this court's analysis in Wilson, neither has defendant established that the Legislature has either "expressly or impliedly endorsed it." (People v. Escobar (1992) 3 Cal.4th 740, 751 [12 Cal.Rptr.2d 586, 837 P.2d 1100].) (23) As we observed in People v. King (1993) 5 Cal.4th 59, 77 [19 Cal.Rptr.2d 233, 851 P.2d 27], when this court has created a rule, we can reexamine it. The circumstance that we have misconstrued the statutory scheme in the aftermath of our 1969 decision in Wilson does not justify continuing to ignore the Legislature's apparent intent in enacting section 189.
*1121 Defendant also contends that by applying the merger doctrine to second degree, but not first degree, murder, this court is "sanctioning more severe punishment[] for less culpable conduct." As a preliminary matter, we reject defendant's premise that the insidiousness of an entry committed with the intent to commit an assault does not merit more severe punishment than a simple assault. In any event, as explained above, it is for the Legislature, not this court, to determine penalty. "This court has reiterated numerous times that `The purpose of the felony-murder rule is to deter felons from killing negligently or accidentally by holding them strictly responsible for killings they commit.' (People v. Washington (1965) 62 Cal.2d 777, 781 [44 Cal.Rptr. 442, 402 P.2d 130].) The Legislature has said in effect that this deterrent purpose outweighs the normal legislative policy of examining the individual state of mind of each person causing an unlawful killing to determine whether the killing was with or without malice, deliberate or accidental, and calibrating our treatment of the person accordingly. Once a person perpetrates or attempts to perpetrate one of the enumerated felonies, then in the judgment of the Legislature, he is no longer entitled to such fine judicial calibration, but will be deemed guilty of first degree murder for any homicide committed in the course thereof." (People v. Burton, supra, 6 Cal.3d at p. 388.) Policy concerns regarding the inclusion of burglary in the first degree felony-murder statute remain within the Legislature's domain, and do not authorize this court to limit the plain language of the statute. Therefore, we overrule our decision in People v. Wilson, supra, 1 Cal.3d 431.
(24) Because, due to ex post facto concerns, an unforeseeable judicial enlargement of a criminal statute may not be applied retroactively, our overruling of Wilson does not apply retroactively to defendant's case. (People v. Blakeley (2000) 23 Cal.4th 82, 91-92 [96 Cal.Rptr.2d 451, 999 P.2d 675] [conclusion, contrary to Court of Appeal opinions, that a killing in imperfect self-defense is voluntary, not involuntary, manslaughter, is prospective only, due to ex post facto concerns]; People v. Morante (1999) 20 Cal.4th 403, 430-432 [84 Cal.Rptr.2d 665, 975 P.2d 1071] [similar conclusion regarding an expansive reinterpretation of Pen. Code, § 182]; People v. Martinez, supra, 20 Cal.4th at pp. 238-241 [overruling of People v. Caudillo (1978) 21 Cal.3d 562 [146 Cal.Rptr. 859, 580 P.2d 274] (regarding the asportation element of kidnapping) is prospective only, for similar reasons]; People v. Davis (1994) 7 Cal.4th 797, 811-812 [30 Cal.Rptr.2d 50, 872 P.2d 591] [holding, contrary to Court of Appeal opinions, that viability of a fetus is not an element of fetal murder, is prospective only, for similar reasons]; People v. King, supra, 5 Cal.4th at pp. 79-80 [overruling of In re Culbreth (1976) 17 Cal.3d 330 [130 Cal.Rptr. 719, 551 P.2d 23] regarding firearm use enhancement is prospective only, for similar reasons]; see also Rogers v. Tennessee (2001) 532 U.S. 451, 462 [149 L.Ed.2d 697, 121 S.Ct. 1693]; Bouie v. City of Columbia (1964) 378 U.S. 347, 353 [12 L.Ed.2d 894, 84 S.Ct. *1122 1697].) Wilson, supra, 1 Cal.3d 431, was decided in 1969. Defendant committed his crimes in 1988, at which time it was unforeseeable that we would overrule Wilson. Accordingly, today's overruling is prospective only. Of course, in light of the conclusion we reach under our jurisprudence governing at the time of the crimesthat the burglary committed with the intent to assault Black did not merge with the homicidesthere was no error in instructing the jury concerning felony murder premised upon that burglary.
b. Instructions on reasonable doubt and circumstantial evidence
Defendant asserts that the trial court's instructions concerning reasonable doubt violated his rights under the Eighth and Fourteenth Amendments to the United States Constitution. The trial court instructed the jury in the language of former CALJIC 2.90.[28] The high court upheld the language of this instruction in Victor v. Nebraska (1994) 511 U.S. 1, 13, 15, 17 [127 L.Ed.2d 583, 114 S.Ct. 1239], and we have held that it was not error to give the instruction. (People v. Freeman (1994) 8 Cal.4th 450, 503 [34 Cal.Rptr.2d 558, 882 P.2d 249] (Freeman).) Defendant provides no persuasive reason to revisit these conclusions.
(25) Defendant further contends that the instruction concerning reasonable doubt was improper when given in conjunction with the instruction that if "one interpretation of [the] evidence appears to you to be reasonable, and the other interpretation to be unreasonable, you must accept the reasonable interpretation and reject the unreasonable." A similar instruction was given with regard to the existence of required specific intent. We repeatedly have rejected claims that these instructions allow a finding of guilt based upon a degree of proof less than reasonable doubt, establish "an `impermissible mandatory presumption'" of guilt, or impose upon defendant a burden of proof. (Morgan, supra, 42 Cal.4th at p. 620; People v. Nakahara (2003) 30 Cal.4th 705, 713-714 [134 Cal.Rptr.2d 223, 68 P.3d 1190].) "The plain meaning of these instructions merely informs the jury to reject unreasonable interpretations of the evidence and to give the defendant the benefit of any reasonable doubt." (People v. Jennings (1991) 53 Cal.3d 334, 386 [279 Cal.Rptr. 780, 807 P.2d 1009].)
*1123 c. Requested defense instructions
Defendant contends the trial court's denial of certain instructions he requested violated his rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution.
Defendant requested the following instruction: "If you find that a witness has testified falsely, this fact may afford an inference that the witness is concealing the truth, but it does not, by itself, warrant an inference that the truth is the direct opposite of the rejected testimony." This instruction was properly rejected as argumentative and duplicative of other given instructions.[29] (People v. Gurule (2002) 28 Cal.4th 557, 659 [123 Cal.Rptr.2d 345, 51 P.3d 224] (Gurule).)
Defendant requested a modified instruction concerning reasonable doubt. We have cautioned "against trial court experimentation" with this instruction, and as noted earlier, we have upheld the validity of the instruction given by the court. (Freeman, supra, 8 Cal.4th at p. 504.) Defendant's proposed instruction was duplicative of instructions that were given, and thus was properly refused. (Gurule, supra, 28 Cal.4th at p. 659.)
Defendant also requested an instruction providing: "An abiding conviction is a belief with staying power. Even absolute positivism, if it wanes after some undetermined and undeterminable time, is insufficient. Therefore, not just any kind of conviction will dispel a reasonable doubt, it must be the abiding kind only." We previously have held that this language is not required. (People v. Turner (1994) 8 Cal.4th 137, 203 [32 Cal.Rptr.2d 762, 878 P.2d 521] (Turner), overruled on other grounds in People v. Griffin (2004) 33 Cal.4th 536, 555, fn. 5 [15 Cal.Rptr.3d 743, 93 P.3d 344].)
Defendant requested additional instructions defining "deliberate" and "premeditate," and three instructions that elaborated on the concept of premeditation. The jury was instructed in the language of CALJIC No. 8.20. That was sufficient. (People v. Moon (2005) 37 Cal.4th 1, 31-32 [32 Cal.Rptr.3d 894, 117 P.3d 591]; Gurule, supra, 28 Cal.4th at p. 659.)
4. Alleged cumulative error
Defendant asserts that even if the errors alleged above are not in themselves reversible, their cumulative effect requires reversal. We disagree. As *1124 explained above, defendant was not prejudiced by the exclusion of evidence intended to impeach Hirst, by the exclusion of defendant's letters as evidence of his state of mind, or by any flaws in the felony-murder instructions. The few errors that may have occurred during defendant's trial were harmless under any standard, whether considered individually or collectively. Defendant "has merely shown that his `"trial was not perfectfew are."'" (People v. Cooper (1991) 53 Cal.3d 771, 839 [281 Cal.Rptr. 90, 809 P.2d 865].)
C. Penalty phase issues
1. Data concerning past employment
Defendant contends the trial court erred in denying him access to data concerning his past employment, and in prohibiting him from introducing evidence on that subject, in violation of the Eighth Amendment to the United States Constitution, and that the error mandates reversal of the penalty imposed.[30]
a. Factual background
Because defendant had access to classified information during his employment in the Navy and at ESL, the federal government expressed concern before and during trial that defendant would disclose confidential information at trial. At a hearing held before defendant testified at the guilt phase of the trial, Robin Ball, an attorney from the United States Department of Justice, sought to assert a privilege on behalf of the federal government, proposing that, at defendant's trial, he be permitted either to rise and object, or signal the court or the prosecutor that he wished to assert a claim of privilege. The trial court rejected the view that the federal government had standing to intervene in these proceedings, and could not conceive of any scenario in which Ball would be permitted to raise an objection before a capital case jury, but the court was not opposed to an arrangement between the prosecutor and Ball by which Ball might communicate concerns to the prosecutor. The following day, although the prosecutor also questioned the assertion that the federal government had standing to object, he informed the court and defense counsel that "[t]here will however be some mechanism where . . . Mr. Ball can communicate with me at appropriate times. I will make any objections that the prosecution feels necessary." He subsequently added, "I'm not nor do I intend to be an agent for the U.S. Government. My interests are prosecuting murder."
*1125 During defendant's guilt phase testimony, the trial court sustained several objections by the prosecution on the ground of relevancy. Defendant claims error with respect to four questions he was asked but was not allowed to answer.
First, defendant testified that following his return from Australia, he "found a position working for a subset of a piece of equipment that we had deployed over in Australia." Defense counsel asked him to explain what he meant by "a subset of the equipment that had been deployed." The prosecutor objected on relevancy grounds, which the trial court sustained. At a sidebar conference, defense counsel asked whether the objection had been made in response to a signal from the representative of the federal government, and the prosecutor stated he had "no idea," and had objected because the question was irrelevant. Defense counsel stated he was attempting to elicit testimony (1) to counter prosecution testimony regarding the ESL location where defendant was assigned, as opposed to the location where he in fact was seen working (and by implication, stalking Black), and (2) to elucidate defendant's "industry jargon" so that the jury understood "what it is he was working on." The trial court suggested counsel simply ask defendant where that piece of equipment was located.
Second, when defendant testified that he was assigned to a different project, defense counsel asked him to identify the new project. The prosecutor's objection on the ground of relevancy was sustained. At sidebar, defense counsel again inquired whether the prosecutor's objection was prompted by a signal from Ball. After colloquy between counsel and the court, the prosecutor said, "When I make a relevancy objection, I mean that the matter is irrelevant. Pure and simple." After further argument, the court again stated that "[t]he relevancy is where he was working."
Third, defendant testified that he did not believe the actions he took to gather information about Black were wrong, because his Navy career and his work at ESL fostered an attitude that gathering information surreptitiously was not wrong and that information was power. Defense counsel asked, "What are you referring to in terms of what you did in the military and ESL that fostered these attitudes?" The prosecutor objected that the information was irrelevant. At a sidebar conference, defense counsel suggested Ball had signaled the prosecutor. The prosecutor stated, "I received no signal. I made a relevance objection." After further discussion between the court and counsel, the court asked defendant for an offer of proof regarding what defendant "is going to testify to." After consultation with defendant, defense counsel stated defendant would testify that his work involved the use of "electronic methods to monitor electronic signals generated by foreign powers," and he "intend[ed] to ask [defendant] about that information, about where it was *1126 coming from, and why this work contributed to his attitudes, what it was about that that contributed to his attitudes . . . ." After further argument by counsel, the court sustained the objection, noting that defendant already had testified that his military and work environment, in which he possessed security clearances that allowed him to obtain information, had led to his "feeling of power from getting information." The trial court explained that it "fail[ed] to see what he did specifically in the Navy or at ESL insofar as particular projects that he worked on, or particular discussion about monitoring electronic signals of foreign powers or as well as any agencies that he worked for, how that has anything at all to do with this." The court added that "even if it had some marginal relevance under 352, this is a complete waste of time, confusion of the issues, and the probative value of this information is negligible."
Fourth, after defendant testified further about the attitudes fostered by being involved in spying, and about his "elite" feeling from having access to classified information, defense counsel asked about the type of information gathered in the Australian facility where defendant worked. The trial court sustained the prosecutor's relevancy objection, and added that the testimony had "no probative value" and was time consuming. The court stated: "I think you have beat to death the issue of spying equals power equals information equals power, that this Defendant has established those attitudes from his work in the military and at ESL, and that he has already described his attitudes about that and that the fact that normal people don't have this information, that he's elitist because he had all this information because of his super secret clearance. Enough is enough."
Before the defense completed its direct examination of defendant, it was afforded a hearing regarding Ball's signals to the prosecutor. Ball testified that he would wave to Lieutenant Dow if a question or answer raised privileged matters. With respect to two questions, Ball stated he had waved to Dow, but the prosecutor already had stood up to object in each instance. With respect to another question, Ball said he waved to Dow and Dow touched the prosecutor's arm. Lieutenant Dow testified that the prosecutor stated that he was "already aware" and was about to object. Thus, the prosecutor did not in fact make any objections at the prompting of the federal representative.
The confidential nature of defendant's work in the Navy and at ESL also resulted in limitations upon the testimony of Kent Wells, the Navy personnel security specialist, during the penalty phase. The trial court ruled in limine that it could not order Wells to disclose classified information, because doing so could subject him to criminal prosecution. It also concluded the confidential information defendant sought from Wells was not necessary, because the defense was "making [its] point before the [j]ury with other evidence."
*1127 Defendant requested that Wells testify outside the presence of the jury, be ordered to answer questions involving confidential information, and thereby be forced to invoke a privilege. The trial court agreed. As relevant here, Wells refused to disclose what information was gathered by the national security function with which defendant was involved, but agreed that defendant, as a member of the team, "helped gather information which was essential to national security, search and rescue and navigational assistance." The trial court found "[t]he gathering function itself . . . to be irrelevant." Wells also testified that knowing the location of ships, planes, and other kinds of objects is important in defending the United States against its enemies, and that defendant thereby contributed to the country's national security, but he refused to explain "[w]hat type of enemy movements, activities, were being monitored that was of assistance to the United States in its defense." The trial court concluded that the "type of enemy movements" was irrelevant. Finally, Wells testified that in the course of repairing and maintaining the equipment, defendant may have been exposed to information stored in computers, but declined to disclose whether the equipment contained specific information about submarine activities of enemy fleets. The trial court found this information to be irrelevant, and also found that the inquiry would result in an undue consumption of time and would confuse the jury. (Evid. Code, § 352.)
b. Discussion
Defendant contends the trial court's rulings give rise to several related questions: (1) In a capital case, does the defendant have a constitutional right to obtain and present mitigating evidence even if it is protected by a national security privilege? (2) If the defendant is denied the right to present such mitigating evidence, can the state nonetheless seek the death penalty on the theory that it is not the state, but the federal government, that is withholding the evidence? (3) In a capital case, can the court exclude details of a defendant's employment as irrelevant?
Defendant does not argue there was error either in the trial court's rulings concerning the discovery of classified information or his motion to bar the death penalty, or in the federal court's grant of summary judgment with respect to defendant's Freedom of Information Act complaint. His argument focuses instead upon the trial court's rulings concerning relevance and the exclusion of evidence under Evidence Code section 352 during defendant's and Wells's testimony, and the "signaling" system between the prosecutor and Ball, representing the United States Government. Moreover, as defendant acknowledges, during the presentation of evidence there were no objections or rulings on the basis of national security. Therefore, the first two issues identified by defendant are not presented.
*1128 (26) We turn to the third issuewhether a court, in a capital case, may exclude details of a defendant's employment as irrelevant. "The Eighth and Fourteenth Amendments require that the sentencer in a capital case not be precluded from considering any relevant mitigating evidence, that is, evidence regarding `any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.'" (Frye, supra, 18 Cal.4th at p. 1015.) "Nonetheless, the trial court still `"determines relevancy in the first instance and retains discretion to exclude evidence whose probative value is substantially outweighed by the probability that its admission will create substantial danger of confusing the issues or misleading the jury."'" (People v. Williams (2006) 40 Cal.4th 287, 320 [52 Cal.Rptr.3d 268, 148 P.3d 47]; see Romano v. Oklahoma (1994) 512 U.S. 1, 12 [129 L.Ed.2d 1, 114 S.Ct. 2004] ["The Eighth Amendment does not establish a federal code of evidence to supersede state evidentiary rules in capital sentencing proceedings."]; Lockett v. Ohio (1978) 438 U.S. 586, 604, fn. 12 [57 L.Ed.2d 973, 98 S.Ct. 2954] ["Nothing in this opinion limits the traditional authority of a court to exclude, as irrelevant, evidence not bearing on the defendant's character, prior record, or the circumstances of his offense."].) "The meaning of relevance is no different in the context of mitigating evidence introduced in a capital sentencing proceeding" from what it is in any other context. (McKoy v. North Carolina (1990) 494 U.S. 433, 440 [108 L.Ed.2d 369, 110 S.Ct. 1227].) Thus, "`[r]elevant mitigating evidence is evidence which tends logically to prove or disprove some fact or circumstance which a fact-finder could reasonably deem to have mitigating value.'" (Ibid.; see Evid. Code, § 210.)
Defendant contends that the "trial court's repeated relevancy rulings favoring the prosecution were nothing more than a subterfuge," and that the court's "implicit goal was to avoid having to rule on an assertion of a national security privilege." He also contends Evidence Code section 352, upon which the court relied in several of its rulings, was inapplicable because the information sought was not prejudicial, and would have taken little time to present.
We first consider the rulings made during defendant's testimony. Defendant testified only at the guilt phase. Thus the challenged trial court rulings regarding his testimony are examined not in the context of his attempt to adduce penalty phase mitigating evidence, as defendant contends, but rather as evidence proffered in defense of the charged offenses. Defendant's testimony regarding his work assignments was relevant to counter the implication that he left his assigned work area in order to stalk Black. Therefore, evidence establishing that he was assigned to work in areas where Black was assigned was relevant, but the precise project upon which defendant was working, or a more detailed description of the equipment used, was not. Similarly, evidence indicating that defendant felt entitled to invade the *1129 privacy of others because of his military and ESL experience arguably was relevant to his state of mind, but the content of the classified information that he helped gather was not. The court's rulings concerning relevance and the exclusion of evidence under Evidence Code section 352 were well within the court's broad discretion and do not demonstrate, contrary to defendant's assertion, that the "trial court was acting in concert with the prosecution and the United States Attorney's office . . . to ensure" that the basis for the exclusion was not national security.
With respect to the signaling system set up between the prosecutor and Ball, defendant contends that the state "actively collaborat[ed] with the federal government to withhold mitigating evidence from the jury." He claims the signaling system deprived him of his Sixth, Eighth, and Fourteenth Amendment rights, because it masked the true basis for the objections, that is, national security, and thereby denied him the opportunity to seek meaningful appellate review of the real basis "for the exclusion of this critical evidence." Once again, these events occurred during the guilt phase, at a time when defendant was not proffering mitigating evidence. In addition, the record indicates the signals did not lead to any objections; rather, the prosecutor was objecting or preparing to object when the signals were received.
Nor did the trial court's challenged rulings regarding Wells's testimony, during the penalty phase, improperly limit the admission of mitigating evidence. The evidence presented fully informed the jury that defendant received a top-security clearance requiring that he be trustworthy, reliable, of unquestioned character, and loyal to the United States; he worked on a high frequency direction-finding network that assisted in search and rescue missions for aircraft or ships in distress; enemy location was one aspect of the information defendant would gather; the Secretary of Defense characterized all of the projects that defendant worked on as vital to the national defense; and much of his work remained classified at the time of trial. The precise information gathered, the type of enemy movements monitored, and whether the equipment contained information about the submarine activities of enemy fleets, was tangential and had no bearing upon defendant's character or record, or the circumstances of his crimes.
2. Alleged improper limitation upon closing argument
Defendant contends the trial court erred by prohibiting defense counsel from arguing that defendant's crimes were less serious than those of other *1130 capital defendants, in violation of his rights under the Eighth and Fourteenth Amendments to the United States Constitution.[31] No error appears.
During closing argument, defense counsel stated, "We need to look at this case and compare this case with other special circumstance killings . . . ." At a sidebar conference, defense counsel repeatedly asserted he did not "intend to comment on what case got what penalty." Rather, counsel sought to argue that "this is not . . . the worst of the worst . . ., there are far worse cases," by referring to such defendants as Richard Ramirez, David Carpenter, and Ramon Salcido, and discussing the circumstances of their crimes.
The court ruled that counsel would "not be permitted to engage in a comparative analysis of other death penalty cases or other murder cases . . . ." Counsel was not allowed to mention "specific cases, specific names, specific penalties," but he was permitted to say that "this is not a child torture case or something like that." Following the sidebar conference, defense counsel argued to the jury that defendant, whose crimes involved a single incident brought on by severe emotional and personal stress and who did not kill as many individuals as he might have or seize hostages, was less deserving of the death penalty than a person who kills with the thought of avoiding capture, tortures victims, acts for mercenary reasons, or kills on multiple occasions over a long period of time.
Defendant now contends "[t]he fact that a particular defendant's crime is less aggravated than the crimes of others who have received the death penaltyor especially that it is less aggravated than the crimes of persons who did not receive the death penaltyis nonetheless a proper consideration for the sentencing body in deciding what sentence to impose." As set forth above, however, trial counsel repeatedly stated he did not seek to refer to the penalty imposed in any particular case. Therefore, this claim is forfeited.
Defendant's claim also is without merit. On numerous occasions, we have upheld a trial court's refusal "to allow defense counsel to compare the subject crime to other well-known murders" (People v. Hughes (2002) 27 Cal.4th 287, 400 [116 Cal.Rptr.2d 401, 39 P.3d 432]), or to note the penalty imposed in such cases (People v. Sakarias (2000) 22 Cal.4th 596, 640 [94 Cal.Rptr.2d 17, 995 P.2d 152]), while allowing argument that there "were other murderers worse than he" (People v. Benavides (2005) 35 Cal.4th 69, 110 [24 Cal.Rptr.3d 507, 105 P.3d 1099]). "[M]eaningful comparisons with other well-publicized crimes cannot be made solely on the basis of the circumstances of the *1131 crime . . . without consideration of the other aggravating and mitigating circumstances." (People v. Roybal (1998) 19 Cal.4th 481, 529 [79 Cal.Rptr.2d 487, 966 P.2d 521]; Marshall, supra, 13 Cal.4th at pp. 854-855.) Here, counsel's central point was that defendant's murders were not "the worst of the worst." He was not precluded from making such an argument, and ably did so.
3. Alleged instructional error
Defendant contends the trial court erred in refusing to give three proposed instructions concerning aggravating and mitigating circumstances. We disagree.
The first and second paragraphs of the first proposed instruction defined aggravating and mitigating circumstances, and therefore were duplicative of CALJIC No 8.88, which was given here, and which likewise defines aggravating and mitigating circumstances. Hence the trial court properly declined to give this portion of the proposed instruction. (Gurule, supra, 28 Cal.4th at p. 659.)
The third paragraph of the first proposed instruction provided: "The fact that [defendant] has been found guilty beyond a reasonable doubt of the crime of murder in the first degree is not itself an aggravating circumstance." We previously have rejected a claim that a trial court erred in refusing to give a substantially similar instruction. (People v. Coleman (1989) 48 Cal.3d 112, 152-153 [255 Cal.Rptr. 813, 768 P.2d 32] (Coleman).) We observed: "The request was properly denied since the requested instruction was unnecessary and possibly misleading. There appeared no need to tell the jury that the murder conviction in the abstract, as distinct from the circumstances of the murder, is not an aggravating factor since no one had suggested otherwise. More seriously, the requested instruction might have been understood as a contradiction of the instruction properly given, that the jury should consider the statutory aggravating and mitigating factors, including the `circumstances of the crime of which the defendant was convicted in the present proceeding' (§ 190.3, factor (a))." (Id. at pp. 152-153.)
Defendant's second proposed instruction provided: "You may not treat the verdict and finding of first degree murder committed under [a] special circumstance[s], in and of themselves, as constituting an aggravating factor. For, under the law, first degree murder committed with a special circumstance may be punished by either death or life imprisonment without [the] possibility of parole. [¶] Thus, the verdict and finding which qualifies a particular crime for either of these punishments may not be taken, in and of themselves, as justifying one penalty over the other. You may, however, examine the *1132 evidence presented in the guilt and penalty phases of this trial to determine how the underlying facts of the crime bear on aggravation or mitigation."
As with defendant's first proposed instruction, this instruction was unnecessary and possibly misleading. The trial court instructed the jury to "consider, take into account and be guided by the applicable factors of aggravating and mitigating circumstances," and explained that "[a]n aggravating factor is any fact, condition or event attending the commission of a crime which increases its guilt or enormity, or adds to its injurious consequences which is above and beyond the elements of the crime itself." The court also instructed the jury that it could consider "the circumstances of the crime of which the defendant was convicted in the present proceeding and the existence of any special circumstances found to be true," but the jury could not consider both the existence of a special circumstance and the facts underlying the special circumstance. "In other words, do not consider the same factors more than once in determining the presence of aggravating factors." Also, like defendant's proposed instruction, an instruction given by the court explained that the penalty for a defendant who has been found guilty of murder in the first degree in a case in which a special circumstance has been found true is death or life imprisonment without the possibility of parole. These instructions adequately conveyed to the jury that it was required to consider the facts underlying the convictions and special circumstance findings, not the mere existence of the convictions and findings. Defendant's proposed instruction was misleading to the extent it contradicted instructions directing the jury to consider the circumstances of the crime and the existence of any special circumstance. (See Coleman, supra, 48 Cal.3d at pp. 152-153.)
The third proposed instruction provided: "In deciding whether you should sentence the defendant to life imprisonment without the possibility of parole, or to death, you cannot consider as an aggravating factor any fact which was used by you in finding him guilty of murder in the first degree or which was used by you in establishing the existence of any special circumstances which you have found to be true unless that fact establishes something in addition to an element of the crime of murder in the first degree. The fact that you have found [defendant] guilty beyond a reasonable doubt of the crime of murder in the first degree is not itself an aggravating circumstance." This instruction properly was refused, because it was erroneous and misleading. (Coleman, supra, 48 Cal.3d at pp. 152-153.) As noted above, the jury properly was instructed pursuant to section 190.3, factor (a), that it could consider "the circumstances of the crime of which the defendant was convicted in the present proceeding and the existence of any special circumstances found to be true." Moreover, as noted above, the jury was instructed not to "double-count."
*1133 4. Constitutionality of death penalty statute
Defendant makes numerous claims that the death penalty statute violates the United States Constitution. For the reasons set forth below, we conclude there is no merit in these contentions.
Section 190.2, which sets forth the circumstances in which the penalty of death may be imposed, is not impermissibly broad in violation of the Eighth Amendment. (People v. Zamudio (2008) 43 Cal.4th 327, 373 [75 Cal.Rptr.3d 289, 181 P.3d 105].)
Section 190.3, factor (a), which allows the jury to consider, in choosing the appropriate penalty, "[t]he circumstances of the crime of which the defendant was convicted in the present proceeding and the existence of any special circumstances found to be true pursuant to Section 190.1," does not violate the Eighth or Fourteenth Amendments to the United States Constitution merely because those circumstances differ from case to case, or because factor (a) does not guide the jury in weighing these circumstances. (Tuilaepa v. California (1994) 512 U.S. 967, 975-976, 978-979 [129 L.Ed.2d 750, 114 S.Ct. 2630]; People v. Stevens (2007) 41 Cal.4th 182, 211 [59 Cal.Rptr.3d 196, 158 P.3d 763] (Stevens).)
The absence of a requirement that the state prove beyond a reasonable doubt that aggravating factors are true (except for other, unadjudicated crimes), that aggravating factors outweigh mitigating factors, and that death is the appropriate punishment, does not render the death penalty statute unconstitutional under the Fifth, Sixth, Eighth, or Fourteenth Amendments. (People v. Cox (2003) 30 Cal.4th 916, 971 [135 Cal.Rptr.2d 272, 70 P.3d 277] (Cox), disapproved on other grounds in Doolin, supra, 45 Cal.4th at p. 421, fn. 22.) "Nor is there merit to defendant's alternative claim that a preponderance of the evidence standard of proof is compelled for the findings that an aggravating factor exists, that the aggravating factors outweigh the mitigating factors, and that death is the appropriate sentence," or that the jury should be instructed that there is no burden of proof. (Stevens, supra, 41 Cal.4th at p. 212.) The jury was instructed that "[t]o return a judgment of death, each of you must be persuaded that the aggravating circumstances are so substantial in comparison with the mitigating circumstances that it warrants death instead of life without parole." That is sufficient. (Tuilaepa v. California, supra, 512 U.S. at p. 979; Stevens, at p. 212). "Unlike the guilt determination, `the sentencing function is inherently moral and normative, not factual' [citation] and, hence, not susceptible to a burden-of-proof quantification." (People v. Hawthorne (1992) 4 Cal.4th 43, 79 [14 Cal.Rptr.2d 133, 841 P.2d 118].) Nothing in Cunningham v. California (2007) 549 U.S. 270 [166 L.Ed.2d 856, 127 S.Ct. 856], Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d *1134 435, 120 S.Ct. 2348], or Ring v. Arizona (2002) 536 U.S. 584 [153 L.Ed.2d 556, 122 S.Ct. 2428], affects our conclusions in this regard. (Stevens, supra, at p. 212; Cox, supra, at pp. 971-972.)
The absence of any requirement that the jury make written findings with respect to which aggravating evidence is true, and that the findings be unanimous, does not deny due process or violate the Eighth Amendment right to meaningful review. (Stevens, supra, 41 Cal.4th at p. 212.)
Contrary to defendant's arguments, the use of the words "extreme" in section 190.3, factors (d) and (g), and "substantial" in factor (g), does not render these factors unconstitutionally vague, arbitrary, or capricious, nor does it act as a barrier to the consideration of mitigating evidence or violate the Fifth, Sixth, Eighth, or Fourteenth Amendments. (Stevens, supra, 41 Cal.4th at p. 213.) The instructions in this case concerning section 190.3, factor (k), which were consistent with our guidance in People v. Easley (1983) 34 Cal.3d 858, 878, footnote 10 [196 Cal.Rptr. 309, 671 P.2d 813], allowed consideration of "[a]ny other circumstance which extenuates the gravity of the crime even though it is not a legal excuse for the crime and any sympathetic or other aspect of the defendant's character or record that the defendant offers as a basis for a sentence less than death, whether or not related to the offense for which he is on trial." (See Ayers v. Belmontes (2006) 549 U.S. 7, 15 [166 L.Ed.2d 334, 127 S.Ct. 469]; Boyde v. California (1990) 494 U.S. 370, 381-382 [108 L.Ed.2d 316, 110 S.Ct. 1190].)
The failure to require intercase proportionality review by either the trial court or on appeal does not violate the Fifth, Sixth, Eighth, or Fourteenth Amendment. (Pulley v. Harris (1984) 465 U.S. 37, 50-51 [79 L.Ed.2d 29, 104 S.Ct. 871]; Cox, supra, 30 Cal.4th at p. 970.) Nor does the circumstance that intercase proportionality review is conducted in noncapital cases cause the death penalty statute to violate defendant's right to equal protection and due process. (Turner, supra, 8 Cal.4th at p. 209; People v. Cox (1991) 53 Cal.3d 618, 690-691 [280 Cal.Rptr. 692, 809 P.2d 351], disapproved on other grounds in Doolin, supra, 45 Cal.4th at p. 421, fn. 22.) "[C]apital and noncapital defendants are not similarly situated and therefore may be treated differently without violating constitutional guarantees of equal protection of the laws or due process of law . . . ." (People v. Manriquez (2005) 37 Cal.4th 547, 590 [36 Cal.Rptr.3d 340, 123 P.3d 614].)
5. Cumulative error
Defendant contends that cumulative error committed at both the guilt and penalty phases requires reversal. We have found no error at the penalty phase. As explained above, defendant was not prejudiced by the exclusion of *1135 evidence intended to impeach Hirst, by the exclusion of defendant's letters as evidence of his state of mind, or by any flaws in the felony-murder instructions. The few errors that may have occurred during defendant's trial were harmless under any standard, whether considered individually or collectively.
III. DISPOSITION
The judgment is affirmed in its entirety.
Baxter, J., Werdegar, J., Chin, J., Moreno, J., Corrigan, J., and Nicholson, J.,[*] concurred.
NOTES
[1] All further undesignated statutory references are to the Penal Code.
[2] In October 1987, defendant began working at Covalent Systems (Covalent).
[3] Hirst left his employment at ESL on January 8, 1988. On February 16, 1988, the day the crimes were committed, his office was occupied by homicide victim Wayne Williams, whose body was found inside the office. Williams shared the office with homicide victim Kane.
[4] According to Janik, on or shortly before February 16, defendant visited Bighorn Sporting Goods for a third time and purchased more ammunition for a shotgun and a rifle.
[5] ESL was paid $1.6 million on its insurance claim, which included, among various items, equipment damage of $336,790, physical plant damage of $68,355, and associated internal costs to ESL of $40,929.
[6] Mei Chang testified that she accompanied defendant to a paintball event about January 1988, and that he expressed interest in participating.
[7] As to this, and almost every other appellate claim, defendant contends the alleged error infringed his constitutional rights. In those instances in which he did not present constitutional theories below, it appears either that (1) the appellate claim is one that required no objection to preserve it, or (2) the new arguments are based upon factual or legal standards no different from those the trial court was asked to apply but raise the additional legal consequence of violating the Constitution. "To that extent, defendant's new constitutional arguments are not forfeited on appeal." (People v. Boyer (2006) 38 Cal.4th 412, 441, fn. 17 [42 Cal.Rptr.3d 677, 133 P.3d 581].) No separate constitutional discussion is required, or provided, when rejection of a claim on the merits necessarily leads to rejection of any constitutional theory or "gloss" raised for the first time on appeal. (Ibid.)
[8] Defendant contends he justified his failure to exhaust peremptory challenges by stating in the trial court that although he had eight challenges remaining, the venire included more than eight prospective jurors against whom he had made unsuccessful challenges for cause. He asserts that because it was "futile ... to try to eliminate all those who had been exposed to prejudicial publicity, he instead tried, in vain, to eliminate those ... who had expressed an opinion that [defendant] was guilty." Nothing in these circumstances alters the principle that "a party's failure to exercise available peremptory challenges indicates relative satisfaction with the unchallenged jurors." (People v. Morris (1991) 53 Cal.3d 152, 185 [279 Cal.Rptr. 720, 807 P.2d 949], disapproved on other grounds in People v. Stansbury (1995) 9 Cal.4th 824, 830, fn. 1 [38 Cal.Rptr.2d 394, 889 P.2d 588].) As noted, defendant fails to identify any sitting juror he challenged for cause. Nor has he shown that "exhausting his remaining peremptories would necessarily have resulted in the seating of a juror who ought to have been removed for cause." (People v. Price (1991) 1 Cal.4th 324, 401 [3 Cal.Rptr.2d 106, 821 P.2d 610].)
[9] Defendant asserts 83 prospective jurors were excused for bias against the defense. Below, defense counsel represented that 65 of the 240 prospective jurors who were questioned were excused on the ground that they were biased against the defense. The larger figure apparently includes jurors who were excused pursuant to defense challenge both for bias against the defense and under Wainwright v. Witt (1985) 469 U.S. 412 [83 L.Ed.2d 841, 105 S.Ct. 844] (Witt).
[10] Our decision in Bittaker interpreted former section 1076, which provided in relevant part: "No person shall be disqualified as a juror by reason of having formed or expressed an opinion upon the matter or cause to be submitted to the jury, founded upon public rumor, or statements in public journals, circulars, or other literature, or common notoriety if upon his or her declaration, under oath or otherwise, it appears to the court that he or she can and will, notwithstanding that opinion, act impartially and fairly upon the matters to be submitted to him or her." (Quoted in Bittaker, supra, 48 Cal.3d at pp. 1088-1089.)
By the time of trial in the present case, section 1076 had been repealed, and juror challenges for cause were governed by Code of Civil Procedure sections 225 through 230. The bases for disqualifying a prospective juror for cause under these provisions are "[g]eneral disqualification," "[i]mplied bias," and "[a]ctual bias." (Code Civ. Proc., § 225, subd. (b)(1).) Among the grounds for general disqualification is "[t]he existence of any incapacity which satisfies the court that the challenged person is incapable of performing the duties of a juror in the particular action without prejudice to the substantial rights of the challenging party." (Id., § 228, subd. (b).) Among the grounds for finding implied bias is "[h]aving an unqualified opinion or belief as to the merits of the action founded upon knowledge of its material facts or of some of them." (Id., § 229, subd. (e).)
[11] Defendant asserts the "court erred in denying defense challenges for cause," noting that the trial court denied 20 defense challenges, but he addresses only one denial of a defense challenge for cause, for the asserted reason that "the erroneous denial of even one challenge for cause was reversible error because it in effect deprived him of a peremptory challenge." Defendant states that, "[b]ecause the issue ... is one of principle rather than numbers, [defendant] will discuss in detail only one of the jurors in question, [Prospective Juror E.D.]" We therefore limit our analysis to this prospective juror.
[12] The storage locker warrant identified the same evidence as that itemized in the warrants authorizing the search of defendant's residence and vehicledefendant's firearms, ammunition, explosives, documents regarding and photographs of Black and ESL, employment at ESL and Covalent, and medical recordsexcept the evidence respecting ownership and control of the storage locker apart from the residence and the vehicle.
[13] The computer no longer was in the storage locker at the time of the second search.
[14] Evidence Code section 356 provides: "Where part of an act, declaration, conversation, or writing is given in evidence by one party, the whole on the same subject may be inquired into by an adverse party; when a letter is read, the answer may be given; and when a detached act, declaration, conversation, or writing is given in evidence, any other act, declaration, conversation, or writing which is necessary to make it understood may also be given in evidence."
[15] The cases upon which defendant relies are distinguishable. In Hinton v. Welch (1918) 179 Cal. 463, 466 [177 P. 282], numerous letters written by the plaintiff were introduced against her. In contrast, defendant here sought to introduce his own out-of-court statements during his direct testimony. (See Evid. Code, § 1220.) Likewise, admission of the reply to one of the plaintiff's letters asserting a property interest falls within the language of Evidence Code section 356. (Hinton, at pp. 465-466.) In People v. Snyder (1958) 50 Cal.2d 190, 192 [324 P.2d 1], we held that in defending a charge that the defendant had committed perjury in his testimony before the grand jury, the defendant was permitted to introduce portions of the grand jury testimony that tended to explain the testimony upon which the prosecutor relied in proving the perjury charge, and to demonstrate that the defendant had not testified falsely. (Id. at pp. 193-195.) Hence Snyder is not authority for the admission of letters different from those upon which the prosecution relied.
[16] Defendant further asserts the letters would have personalized him at the penalty phase. This purpose was irrelevant at the guilt phase, and defendant did not seek admission of the letters at the penalty phase.
[17] Section 189 provides in relevant part: "All murder which is perpetrated by means of a destructive device or explosive, a weapon of mass destruction, knowing use of ammunition designed primarily to penetrate metal or armor, poison, lying in wait, torture, or by any other kind of willful, deliberate, and premeditated killing, or which is committed in the perpetration of, or attempt to perpetrate, arson, rape, carjacking, robbery, burglary, mayhem, kidnapping, train wrecking, or any act punishable under Section 206, 286, 288, 288a, or 289, or any murder which is perpetrated by means of discharging a firearm from a motor vehicle, intentionally at another person outside of the vehicle with the intent to inflict death, is murder of the first degree. All other kinds of murders are of the second degree."
Although section 189 refers to "[a]ll murder" that is "committed in the perpetration of, or attempt to perpetrate" certain felonies, this language has long been broadly interpreted to mean "any killing in the perpetration of or attempt to perpetrate" an enumerated crime. (People v. Coefield (1951) 37 Cal.2d 865, 868 [236 P.2d 570]; see People v. Denman (1918) 179 Cal. 497, 498-499 [177 P. 461] ["one who kills another in the perpetration or attempt to perpetrate" the crimes enumerated in § 189 is guilty of first degree murder under the provisions of that statute, "regardless of any question whether the killing was intentional or unintentional"].)
[18] As to Lawrence Kane, who was killed before defendant entered the building, the prosecution proceeded solely on a theory of willful, deliberate, and premeditated murder.
[19] At the time of defendant's crimes, section 594 provided in relevant part:
"(a) Every person who maliciously (1) defaces with paint or any other liquid, (2) damages or (3) destroys any real or personal property not his own, in cases otherwise than those specified by state law, is guilty of vandalism.
"(b)(1) If the amount of defacement, damage or destruction is five thousand dollars ($5,000) or more, vandalism is punishable by imprisonment in the state prison, or in a county jail not exceeding one year, or by a fine of not more than ten thousand dollars ($10,000), or by both that fine and imprisonment." (Stats. 1985, ch. 781, § 1, p. 2520.)
[20] We also reject defendant's further contention that the court's instructions concerning vandalism as a predicate crime for burglary were erroneous because "the relevant criminal intent under section 594" is not intent to cause property damage of at least $5,000, but only to deface, damage, or destroy property. If, by requiring the jury to find an intent to cause property damage in excess of $5,000, the instruction required more than the statute, this inured to defendant's benefit.
[21] Justice McComb summarily dissented. (Sears, supra, 2 Cal.3d at p. 191.)
[22] Although we conclude that both theories of felony murder were valid, we note that the record reflects the jury also must have concluded the homicides were willful, deliberate, and premeditated. The prosecution argued that if the jury found that when defendant "went to ESL that day [he] had it in mind that he would kill anyone who even marginally became an obstacle during his mission[,] ... [t]hat would be willful, deliberate and premeditated murder as to those persons he killed while he was on his mission." The prosecution made essentially the same argument in connection with the attempted murder countsif defendant "went into that building intending to shoot everybody he could see, intending to kill everybody he could see, then that would be willful, deliberate and premeditated attempted murder on each of those persons that he went after." The jury specifically found that all five counts of attempted murder were willful, deliberate, and premeditated. Other than Black, for whom attempted murder was not charged, defendant knew none of the individuals he shot, and nothing in the record indicates that the circumstances of any of the murders were different from the circumstances of the attempted murders in any way that could affect whether the murders were willful, deliberate, and premeditated. Indeed, the murder of Ronald Doney and the attempted murder of Richard Townsley occurred at the same time. The jury also specifically found that the murder of Lawrence Kane, who was shot outside ESL, was willful, premeditated, and deliberate. Thus, there is no logical basis upon which to conclude that the jury could have found that the murder of Kane and the attempted murders of five other individuals were willful, deliberate, and premeditated, but that the other homicides were not. Therefore, even if the jury had been improperly instructed regarding felony murder, "other aspects of the verdict or the evidence leave no reasonable doubt that the jury made the findings necessary for" premeditated murder, and hence any error was harmless beyond a reasonable doubt. (People v. Chun (2009) 45 Cal.4th 1172, 1205 [91 Cal.Rptr.3d 106, 203 P.3d 425] (Chun); see Hedgpeth v. Pulido (2008) 555 U.S. ___ [172 L.Ed.2d 388, 129 S.Ct. 530] (per curiam) [when the jury was instructed on both a valid and an invalid theory of guilt, the conviction will not be set aside if the invalid instruction was harmless].)
Similarly, although our conclusion defeats defendant's challenge to the burglary-murder special circumstance, we note that there is no reasonable possibility that the jury's findings on the burglary-murder special circumstance affected the penalty determination. (People v. Morgan (2007) 42 Cal.4th 593, 628 [67 Cal.Rptr.3d 753, 170 P.3d 129] (Morgan); see Brown v. Sanders (2006) 546 U.S. 212, 223-224 [163 L.Ed.2d 723, 126 S.Ct. 884].) The jury would have heard the same evidence regarding the killings, in proof of the prosecutor's theory of premeditated murder and the multiple-murder special circumstance, as it heard regarding the burglary-murder special circumstance. (People v. Bonilla (2007) 41 Cal.4th 313, 334 [60 Cal.Rptr.3d 209, 160 P.3d 84] [second special circumstance "was superfluous for purposes of death eligibility and did not alter the universe of facts and circumstances to which the jury could accord ... weight"].)
[23] Our holding in Wilson, supra, 1 Cal.3d at p. 440, was rejected by New York (People v. Miller (1973) 32 N.Y.2d 157 [344 N.Y.S.2d 342, 297 N.E.2d 85, 87, fn. 3] (Miller)), and subsequently was rejected by numerous other jurisdictions, rendering it a minority rule. (See People v. Lewis (Colo.Ct.App. 1989) 791 P.2d 1152, 1153 [court observed a "majority of jurisdictions hold that a burglary charge premised on an underlying crime of assault may sustain a finding of felony murder," and expressly declined to follow Wilson]; Blango v. U.S. (D.C. 1977) 373 A.2d 885, 888-889 [court expressly agreed with Miller's reasoning, and rejected the holding of Wilson]; State v. Foy (1978) 224 Kan. 558 [582 P.2d 281, 289] [court expressly concluded Miller's reasoning is persuasive, rejected Wilson, and held that the "merger doctrine does not apply in felony-murder cases where an aggravated burglary is based upon an aggravated assault"]; Finke v. State (1983) 56 Md.App. 450 [468 A.2d 353, 369] [rejecting Wilson on the ground that Maryland felony-murder statute expressly includes "murder committed in the perpetration of daytime housebreaking," and such burglary "includes breaking a dwelling house `with intent to commit murder or felony therein'"]; Commonwealth v. Claudio (1994) 418 Mass. 103 [634 N.E.2d 902, 905-907] [court observed that Wilson was the "minority view," and concluded that Miller and other cases following the majority view were "better reasoned"]; Smith v. State (Miss. 1986) 499 So.2d 750, 753-754 [court declined to adopt the merger doctrine after discussing Wilson and observing that Miller "aptly states this Court's view regarding the application of our felony-murder statute"]; State v. Contreras (2002) 118 Nev. 332 [46 P.3d 661, 662-664] [court discussed Wilson and Miller, and held the merger doctrine did not apply to "felony murder when the underlying felony is burglary, regardless of the intent of the burglary"]; State v. Reams (1981) 292 Ore. 1 [636 P.2d 913, 919-920] [court discussed Miller and Wilson, and expressly rejected Wilson's "logic" as applied to Oregon's felony-murder and burglary statutes].)
[24] Section 188 states that malice, which is an element of murder (§ 187), "is implied, when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart."
[25] The Penal Code enacted in 1872 was "not published as part of the Statutes of 1871-1872," and was not given a chapter number. (Kleps, The Revision and Codification of Cal. Statutes 1849-1953 (1954) 42 Cal. L.Rev. 766, 775.)
[26] As enacted in 1872, section 459 provided: "Every person who, in the night-time, forcibly breaks and enters, or without force enters through any open door, window, or other aperture, any house, room, apartment, or tenement, or any tent, vessel, water craft, or railroad car, with intent to commit grand or petit larceny, or any felony, is guilty of burglary."
[27] Wilson noted that the burglary statute includes "any `shop, warehouse, store, mill, barn, stable, outhouse or other building, tent, vessel, railroad car, trailer coach ..., vehicle ..., aircraft..., mine or any underground portion thereof. . . .' (Pen. Code, § 459.)" (Wilson, supra, 1 Cal.3d at p. 441, fn. 3.) As noted above, the statute included a broad array of structures when it was enacted in 1872. (See ante, fn. 26.)
[28] The jury was instructed: "Reasonable doubt is defined as follows: It is not a mere possible doubt, because everything relating to human affairs and depending on moral evidence is open to some possible or imaginary doubt. It is that state of the case which after the entire comparison and consideration of all the evidence leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction to a moral certainty of the truth of the charge."
[29] The jury was instructed in the language of CALJIC No. 2.21.2, which provides: "A witness, who is willfully false in one material part of his or her testimony is to be distrusted in others. You may reject the whole testimony of a witness who willfully has testified falsely as to a material point unless, from all the evidence, you believe the probability of truth favors his or her testimony in other particulars."
[30] Defendant also filed a motion for new trial raising this issue.
[31] As we previously have observed, a claim that defense counsel's argument improperly was limited invokes an aspect of the right to counsel. (People v. Marshall (1996) 13 Cal.4th 799, 854 [55 Cal.Rptr.2d 347, 919 P.2d 1280] (Marshall).) Hence, it is grounded in the Sixth, not the Eighth, Amendment.
[*] Associate Justice of the Court of Appeal, Third Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
| {
"pile_set_name": "FreeLaw"
} |
[Cite as Wilson v. Cleveland, 2012-Ohio-4289.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 98035
ROGER WILSON
PLAINTIFF-APPELLEE
vs.
CITY OF CLEVELAND, ET AL.
DEFENDANTS-APPELLANTS
JUDGMENT:
REVERSED AND REMANDED
Civil Appeal from the
Cuyahoga County Common Pleas Court
Case No. CV-753594
BEFORE: E. Gallagher, J., Blackmon, A.J., and Stewart, J.
RELEASED AND JOURNALIZED: September 20, 2012
ATTORNEYS FOR APPELLANTS
Barbara Langhenry
Interim Director of Law
Jerome A. Payne, Jr.
Assistant Director of Law
Room 106 - City Hall
601 Lakeside Avenue
Cleveland, Ohio 44114
ATTORNEY FOR APPELLEE
Thomas J. Silk
Obral, Silk, & Associates
1370 Ontario Street
1520 Standard Building
Cleveland, Ohio 44113
EILEEN A. GALLAGHER, J.:
{¶1} The city of Cleveland appeals the trial court’s order denying summary
judgment. The city argues that the trial court erred when it determined that the city was
not entitled to political subdivision immunity under R.C. Chapter 2744. For the
following reasons, we reverse the decision of the trial court and remand for proceedings
consistent with this opinion.
{¶2} The record before us is incomplete because the plaintiff’s deposition was
never filed with the trial court. The parties merely attached to the dispositive motion
and the response thereto an exhibit consisting of three pages of the deposition testimony
of plaintiff-appellee in which he testified that on May 19, 2008, he was walking on the
sidewalk on Walford Avenue approaching West 100th with a Ms. Gray, that he stepped
on a manhole and the entire cover came off and he went into the hole up to his chest.
The appellee, however, did also submit an affidavit in which he avers that he stepped on
a manhole cover and “the weight caused the cover to flip up allowing my leg to fall into
the hole” and, with respect to the sidewalk and the surrounding area, he describes it “in
some state of disrepair” and “in seriously delapidated condition or in some need of
repair.” There is nothing in the record before us that there was any defect with the
manhole or the surrounding area but for appellee’s self-serving affidavit.
{¶3} The city supplied the Division of Water’s records to demonstrate that an
inspection of this specific cover was conducted in January 2008 and no loose or missing
covers were listed. The city claims that there is nothing in the Division of Water’s
records to indicate it had any knowledge of that particular manhole cover being loose.
{¶4} The city alleges two assignments of error. The first is that Wilson failed to
show that the city knew, or should have known about the loose manhole cover. The
second, is that the sidewalk exception to political subdivision immunity no longer exists
as the statute was amended.
{¶5} Our review of a trial court’s denial of summary judgment is de novo.
Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). Pursuant
to Civ.R. 56(C), summary judgment is appropriate when (1) there is no genuine issue of
material fact, (2) the moving party is entitled to judgment as a matter of law, and (3)
reasonable minds can come to but one conclusion and that conclusion is adverse to the
nonmoving party, said party being entitled to have the evidence construed most strongly
in his favor. Horton v. Harwick Chem. Corp., 73 Ohio St.3d 679, 1995-Ohio-286, 653
N.E.2d 1196 (1995), paragraph three of the syllabus; Zivich v. Mentor Soccer Club, 82
Ohio St.3d 367, 1998-Ohio-389, 696 N.E.2d 201 (1998). The party moving for
summary judgment bears the burden of showing that there is no genuine issue of material
fact and that it is entitled to judgment as a matter of law. Dresher v. Burt, 75 Ohio St.3d
280, 1996-Ohio-107, 662 N.E.2d 264 (1996).
{¶6} For ease of discussion, we shall address the city’s second assignment of
error first. In this assignment of error, the city argues that the immunity exception found
in R.C. 2744.02(B)(3) is not relevant in this case because, as of the 2002 amendment,
sidewalks are no longer covered in the statute. Based on the following, this court
sustains this assignment of error.
{¶7} In determining whether a political subdivision is immune from tort liability
pursuant to R.C. Chapter 2744, a three tiered analysis is required. Lyons v. Teamhealth
Midwest Cleveland, 8th Dist. No. 96336, 2011-Ohio-5501, at ¶ 23-25.
The first tier is the general rule that a political subdivision is immune from
liability incurred in performing either a governmental function or
proprietary function. R.C. 2744.02(A)(1). However, that immunity is not
absolute. R.C. 2744.02(B) * * *.
The second tier of the analysis requires a court to determine whether any of
the five exceptions to immunity listed in R.C. 2744.02(B) apply to expose
the political subdivision to liability. * * *
If any of the exceptions to immunity in R.C. 2744.02(B) do apply and no
defense in that section protects the political subdivision from liability, then
the third tier of analysis requires a court to determine whether any of the
defenses in R.C. 2744.03 apply, thereby providing the political subdivision
a defense against liability.
{¶8} Beginning with the first tier, the city is generally immune from liability.
R.C. 2744.02(A)(1) provides:
For the purposes of this chapter the functions of political subdivisions are
hereby classified as governmental functions and proprietary functions.
Except as provided in division (B) of this section, a political subdivision is
not liable in damages in a civil injury, death, or loss to a person or property
allegedly caused by any act or omission of the political subdivision or an
employee of the political subdivision in connection with a governmental or
proprietary function. Id. at ¶ 30.
Therefore, the City is entitled to political subdivision immunity in this case.
{¶9} We must now examine the second tier to see whether an exception existed
under R.C. 2744.02(B). Prior to the 2002 amendment to R.C. 2744.02(B)(3), the statute
read
political subdivisions are liable for injury, death, or loss of property caused
by their negligent failure to keep public roads, highways, streets, avenues,
alleys, sidewalks, bridges, aqueducts, viaducts, or public grounds within
the political subdivisions open, in repair, and free from nuisance and other
negligent failure to remove obstruction.
R.C. 2744.02(B)(3). However, after the amendment, the statute now reads “political
subdivisions are liable for injury, death, or loss to person or property caused by their
negligent failure to keep public roads in repair and other negligent failure to remove
obstructions from public roads.” R.C. 2744.02(B)(3) (effective April 9, 2003). It is
clear that the intention of the legislature in amending this statute was to remove, among
other things, “sidewalks” from this exception to the political subdivision immunity.
{¶10} Furthermore, the statute defines “public roads” as “public roads,
highways, streets, avenues, alleys, and bridges, within a political subdivision. ‘Public
roads’ does not include berms, shoulders, rights-of-way, or traffic control devices.”
R.C. 2744.01(H). The sidewalk is an area of a public road beyond that of a berm or
shoulder. It follows, that if berms and shoulders were not to be included in the statute,
then the sidewalk was not either.
{¶11} Similarly, case law supports this court’s conclusion. This court has
stated that, regarding the R.C. 2744.02(B)(3) statute, “sidewalks are not considered
public roads.” Gordon v. Dziak, 8th Dist. No. 88882, 2008-Ohio-570, at ¶ 36. Gordon
continues on to say that because
[plaintiff’s] injury occurred * * * after the General Assembly amended
R.C. 2744.02(B)(3) by removing the word ‘sidewalk’ * * * the city is
entitled to immunity under R.C. 2744.02(A)(1), because R.C.
2744.02(B)(3) does not impose liability on the city for the negligent
maintenance of its public sidewalks.
Id. at ¶38. It is clear that the political subdivision immunity should not be eliminated
under the R.C. 2744.02(B)(3) exception when the injury occurs on a sidewalk.
{¶12} For the reasons stated above, the city’s second assignment of error is
sustained.
{¶13} In its first assignment of error, the city argues that the trial court erred in
denying the city’s motion for summary judgment because Wilson failed to show that the
city had actual, or constructive notice, of the allegedly defective manhole cover. For the
reasons that follow, we sustain this assignment of error and find that the city does have
immunity in this case.
{¶14} As stated above the city is generally entitled to a grant of immunity. R.C.
2744.02(A)(1). Thus, we must determine if any exception under R.C. Chapter 2744
applies. The relevant exception in R.C. 2744.02(B) implicated by this case that could
potentially defeat the city’s immunity discussed above is R.C. 2744.02(B)(2). It
provides that political subdivisions are liable for “negligent performance of acts by their
employees with respect to proprietary functions.” The city asserts that Wilson has failed
to provide facts that would demonstrate that the city performed a proprietary act
negligently.
{¶15} The question now becomes whether this is a proprietary function case or a
governmental function case. R.C. 2744.01(G)(2) lists specific functions expressly
designated as proprietary functions. This list includes “[t]he establishment,
maintenance, and operation of a utility, including, but not limited to, a light, gas, power,
or heat plant, a railroad, a busline or other transit company, an airport, and a municipal
corporation water supply system” and “the maintenance, destruction, operation, and
upkeep of a sewer system.” R.C. 2744.01(G)(2)(c-d). The maintenance of a sidewalk
is governmental function, see Burns v. Upper Arlington, 10th Dist. No. 06AP-680,
2007-Ohio-797, at ¶15-16, and Gordon v. Dziak, 8th Dist. No. 88882, 2008-Ohio-570.
As a governmental function, R.C. 2744.02(B)(2) exception does not apply. However,
the maintenance of a sewer or water delivery system is a proprietary function.
{¶16} When a person incurs an injury from falling into a manhole with an
unsecured cover, several courts have construed that scenario as falling under the
category of maintenance of a sewer system and thus, a proprietary function. In Scott v.
Columbus, 192 Ohio App.3d 465, 2011-Ohio-677, 949 N.E.2d 552 (10th Dist.), the court
allowed a complaint to survive a Civ.R. 12(B)(6) motion to dismiss when the plaintiff
fell into a manhole. The court said, “it is reasonable to infer from Scott’s allegation that
the city negligently ‘allowed the manhole cover to become improperly anchored’ that he
is alleging negligence with respect to the city’s maintenance of the underlying support
for the manhole cover.” Id. at 471. However, unlike our case, Scott involved a motion
to dismiss and the court was merely assessing whether or not that complaint should
survive a motion to dismiss to allow Scott an opportunity to prove such negligence.
{¶17} In Wiley v. Cleveland, 8th Dist. No. 62543, 1993 Ohio App. LEXIS 2628
(May 20, 1993), this court reversed the grant of the city’s motion for summary judgment
based on immunity. In Wiley, the plaintiff produced an affidavit from a witness who
alleged seeing sewer workers attempting to fix the manhole cover that Wiley fell into
shortly before the time of Wiley’s accident. Id. Furthermore, Wiley provided the court
with pictures from the same witness of what appeared to be concrete patchwork on the
manhole cover in question. Id. The court found this to be enough evidence to
implicate the maintenance of the sewer system. Id. It must also be noted that this case
occurred prior to the amendment to 2744.02(B)(3), so the city could have been found
liable based on negligent sidewalk maintenance.
{¶18} In Tyler v. Cleveland, 129 Ohio App.3d 441, 717 N.E.2d 1175 (8th Dist.
1998), the plaintiff fell into a manhole when the cover turned over. Tyler provided
affidavits from a person who fell into a manhole fourteen months prior to Tyler and in
the same area as the one into which Tyler fell and around which there was deteriorated
support. The court found that was enough to survive a motion for summary judgment
based on the notice requirement of negligence on the part of the city to maintain the
sewer system. Id. Again, it is noted that this case occurred prior to the amendment to
2744.02(B)(3), so the city could have been found liable based on negligent sidewalk
maintenance.
{¶19} Ohio courts have found that when a person trips over the raised edge of a
manhole cover, the manhole is considered a part of the sidewalk and, therefore,
maintenance is a government function. See Burns v. Upper Arlington, 10th Dist. No.
06AP-680, 2007-Ohio-797, at ¶13, 15. Burns tripped over an improperly aligned
manhole cover that was raised from the level of the sidewalk. Id. at ¶ 3. The evidence
Burns provided was that of a defect in the sidewalk and not the integrity of the sewer
system or manhole. Thus, the court granted immunity to the city as maintenance of the
sidewalk is a governmental function.
{¶20} Here, Wilson has provided no evidence to support his suggestion that
there was a defect in the integrity of the underlying support system of the manhole. The
only evidence offered to suggest there was any problem in the area is a photo of cracks in
the sidewalk. Wilson also provided a photo of the manhole cover being held up on its
side, a photo where, presumably, Wilson slid the cover half off of the manhole and
photos showing a deterioration of the berm of the road. This, however, is not the
sidewalk. The photos of the deteriorated berm bear a copyright from Google and are
dated August 2009, 15 months after the alleged fall. None of the photos show any
discernable defects to the manhole itself or its underlying support system. Therefore,
the only defect Wilson has provided to this court is that of a few cracks in the sidewalk.
This implicates a potential defect in the sidewalk, but not the underlying support system
for the manhole cover.
{¶21} Our case is not like the others that found fault with the sewer system.
Here, there is no previous incident in the area resulting from deterioration as in Tyler.
We have no witnesses alleging they saw the city attempting to make repairs to the
manhole cover like in Wiley. All we know is that there were cracks in the sidewalk and
the manhole cover came loose. While the mere fact that the manhole cover came
unanchored was enough to meet the burden of a well-pled complaint to survive a Civ.R.
12(B)(6) motion in Scott, it alone cannot be construed as evidence of a deteriorating
manhole or sewer system after the opportunity for discovery.
{¶22} By extension, Wilson has provided no evidence that there was any defect
in the maintenance of the manhole or sewer system. The evidence provided only details
potential defects in the maintenance of a sidewalk, which is a governmental function.
As such, the city’s motion for summary judgment should be granted.
{¶23} Even if we were to somehow construe that Wilson provided enough
evidence to find that a proprietary function was the area of negligence in this case, he
still cannot meet the notice requirement of negligence. A “municipal corporation is liable
only for negligence in creating a faulty condition or in failing to repair, remove or guard
against defects after receiving actual or constructive notice of their existence.” Graves
v. E. Cleveland, 8th Dist. No. 70675, 1997 Ohio App. LEXIS 326 (Jan. 30, 1997) *4.
{¶24} Wilson has provided nothing to show that the city had any actual notice of
the loose manhole cover. To the contrary, the city has provided evidence that it was not
aware of the condition of the manhole cover. Affidavit of Clarice Mizell at ¶ 9 attached
to city’s motion to dismiss. The city also admitted evidence it inspected that manhole
cover recently. Id. at ¶ 5. Therefore, Wilson has not established actual notice on the
part of the city so he must establish constructive notice to survive a grant summary
judgment.
{¶25} In order
to charge a municipality with constructive notice, the injured party must
show that the defect existed in such a manner and for a sufficient length of
time that it could or should have been discovered, and that if it had been
discovered, it would have created a reasonable apprehension of a potential
danger.
Graves v. E. Cleveland, 8th Dist. No. 70675, 1997 Ohio App. LEXIS 326, *4 (Jan. 30,
1997). Here, appellee has failed to establish constructive notice.
{¶26} Previous cases in this district have found constructive notice to be present
in similar cases with manhole cover accidents. In Tyler and Wiley, above, the evidence
offered to allege a faulty sewer system functioned as evidence of constructive notice.
{¶27} In support of the allegation that the city should have discovered the defect
in the manhole cover, Wilson provided the trial court with photos reflecting a few cracks
in the sidewalk surrounding the manhole cover. He argues that this is enough to show
that the manhole cover was defective. This court does not agree. Cracks in the sidewalk
do not necessarily suggest anything about a manhole located in that sidewalk. It is merely
a crack in a surface next to a manhole.
{¶28} Even if this evidence suggested some defect of the manhole, there is no
evidence to show these cracks existed for a period of time long enough that the city
should have discovered them. They could have been made a day, or even minutes,
before Wilson fell into the manhole.
{¶29} Lastly, there is nothing to show that these cracks create a reasonable
apprehension of danger. In his affidavit, Wilson admits that there was nothing that
would suggest to him the manhole cover was defective; that is why he stepped on it.
{¶30} Appellee has not met a standard of actual or constructive notice to charge
the city with negligence in executing a proprietary function. Therefore, the city should
be entitled to immunity in this case.
{¶31} For the reasons stated above the appellant’s second assignment of error is
sustained.
{¶32} Thus, we conclude that the trial court erred in denying appellant’s motion
for summary judgment based on political subdivision immunity under R.C. Chapter
2744.
{¶33} We reverse and remand to the trial court with instructions to enter
judgment for the city.
It is ordered that appellant recover of said appellee costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
EILEEN A. GALLAGHER, JUDGE
PATRICIA ANN BLACKMON, A.J., and
MELODY J. STEWART, J., CONCUR
Appendix
Assignments of Error
I. “The trial court erred when it denied the City of Cleveland’s motion for
summary judgment because the city did not negligently perform, or create or have
actual or constructive notice of the alleged hazard.”
II. “The trial court erred when it denied the City of Cleveland’s motion for
summary judgment because injuries that occur on sidewalks are not an exception
to a political subdivision’s immunity.”
| {
"pile_set_name": "FreeLaw"
} |
108 F.3d 1391
42 Cont.Cas.Fed. (CCH) P 77,208
NOTICE: Federal Circuit Local Rule 47.6(b) states that opinions and orders which are designated as not citable as precedent shall not be employed or cited as precedent. This does not preclude assertion of issues of claim preclusion, issue preclusion, judicial estoppel, law of the case or the like based on a decision of the Court rendered in a nonprecedential opinion or order.John H. DALTON, Secretary of the Navy, Appellant,v.GAFFNY CORPORATION, Appellee.
No. 96-1331.
United States Court of Appeals, Federal Circuit.
Feb. 13, 1997.
Before PLAGER, RADER, and SCHALL, Circuit Judges.
RADER, Circuit Judge.
1
Following litigation with the Department of the Navy (the Navy), Gaffny Corporation sought attorney fees. The Armed Services Board of Contract Appeals (Board) awarded fees on October 25, 1995, and the Navy's motion for reconsideration was denied on January 5, 1996. Because the record does not show substantial evidence that Michael Gaffny represented the corporation, this court reverses.
2
* Gaffny Corporation won a contract to renovate a central heating plant at the Naval Air Station in Brunswick, Maine. Upon completion of the contract, Gaffny Corporation filed claims to increase the contract price above the original award and to excuse a two-hundred-two day delay. The contracting officer's final decision granted part of Gaffny Corporation's request.
3
On October 18, 1988, Gaffny Corporation appealed the denial of its claims to the Board. The appeal carried the signature "John J. Gaffny, President, Attorney Pro-Se." Due to a defect in that initial complaint, Gaffny Corporation submitted an additional appeal signed "Michael Gaffny, Vice President, Attorney Pro-Se." Throughout the subsequent proceedings, Michael Gaffny corresponded with the contracting officer and the Board. He generally signed the corporation's documents either "Michael Gaffny, Attorney Pro Se" or "Michael Gaffny, Vice President."
4
In December 1990, in the midst of the corporation's proceedings before the Board, Michael Gaffny entered the practice of law. He gave no notice to the Board of his new capacity to serve as an attorney. On one occasion, however, he signed a submission "Michael Gaffny, Esq." In a later submission, Mr. Gaffny signed "Michael Gaffny, Esq., Attorney Pro Se."
5
At a hearing in June 1991, John J. and Michael Gaffny represented Gaffny Corporation in their capacity as corporate officers. Michael Gaffny served as a principal witness for Gaffny Corporation. Despite questions during testimony about his educational background, Mr. Gaffny did not disclose his legal education. Mr. Gaffny signed the post-trial briefs "Michael F. Gaffny of Gaffny Corporation Contractors, Attorney Pro Se." By that time, however, Michael Gaffny had actually entered the private practice of law.
6
On November 23, 1993, the Board issued a decision in favor of Gaffny Corporation on the merits of the underlying contract action. Gaffny Corporation then submitted an application for attorney fees under the Equal Access to Justice Act (EAJA). 5 U.S.C. § 504 (1994). The attorney fees covered the services of Michael Gaffny, the corporation's vice-president and alleged corporate counsel. The Navy opposed such fees, claiming that Michael Gaffny had never claimed that he was acting as an attorney for Gaffny Corporation. The Board granted, in part, Gaffny Corporation's request and awarded fees. On May 3, 1996, the Navy appealed.
II
7
This court reviews the Board's factual findings only for arbitrariness, capriciousness, lack of substantial evidence, or bad faith. Kelso v. Kirk Brothers Mechanical Contractors, Inc., 16 F.3d 1173, 1176 (Fed.Cir.1994). In evaluating the record for substantial evidence, the court must look at the record as a whole. Santa Fe Eng'rs, Inc. v. Garrett, 991 F.2d 1579, 1581 (Fed.Cir.1993). Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Ingalls Shipbuilding, Inc. v. O'Keefe, 986 F.2d 486, 488 (Fed.Cir.1993).
8
The Board found that Michael Gaffny gave the Navy and the Board reason to believe he was a licensed attorney when he signed his March 13, 1991, letter "Michael Gaffny, Esq." and his April 22, 1991, letter "Michael Gaffny, Esq., Attorney Pro Se." This single evidentiary tile taken from a large, factual mosaic does not adequately support the Board's conclusion.
9
In the first place, the mere addition of the abbreviated title "esq." to two letters does not overcome a firmly established pattern of representation by corporate officers. Beginning in October 1988, the Board communicated extensively with Michael Gaffny. For more than two years, he represented the Corporation solely as an officer or as an attorney pro se. These extensive dealings established an expectation that Michael Gaffny was not acting as an attorney. In light of this record, the addition of three letters following his signature did not provide adequate notice of his change in status.
10
Second, Michael Gaffny obliterated and rendered wholly ineffective any purported notice in his March 13, 1991, letter when he used the contradictory term "pro se" with "esq." in his April 22, 1991, letter. Third, Michael Gaffny's extensive involvement in the trial as a witness raises a further presumption that he acted in his role as corporate officer. Finally, submissions that followed the March and April 1991 letters once again used the "pro se" title without any mention of "esq.".
11
This court defers to the Board's factual findings when supported by substantial evidence. In this case, however, the record as a whole does not supply substantial evidence for the Board's finding.
| {
"pile_set_name": "FreeLaw"
} |
18 F.3d 936
Petrusv.U.S. Justice Department*
NO. 92-08279
United States Court of Appeals,Fifth Circuit.
Feb 28, 1994
1
Appeal From: W.D.Tex.
2
AFFIRMED.
*
Fed.R.App.P. 34(a); 5th Cir.R. 34.2
| {
"pile_set_name": "FreeLaw"
} |
233 Ga. 220 (1974)
210 S.E.2d 758
MATTHEWS et al.
v.
FAYETTE COUNTY.
29172.
Supreme Court of Georgia.
Argued September 10, 1974.
Decided November 18, 1974.
Ray Gary, Robert E. Bach, Mary Brock Kerr, for appellants.
Charles T. Ballard, for appellee.
INGRAM, Justice.
This is an appeal from the grant of an interlocutory *221 injunction in the Superior Court of Fayette County enjoining appellants from maintaining and occupying a mobile home as a residence in Fayette County on property not zoned to permit such use under the Fayette County Zoning Ordinance.
Appellants attacked the validity and application of the zoning ordinance and also moved to dismiss the county's complaint for injunctive relief on the ground that it does not contain a prayer for process. Appellants' contentions were rejected after a hearing in the trial court.
The record on appeal shows that appellants were served, filed responsive pleadings in the case and appeared at the interlocutory hearing with able counsel to represent them.
Insufficiency of process was not urged in the responsive pleadings filed by appellants but was only urged subsequently in the motion to dismiss made at the time of the hearing. Therefore, any insufficiency of process or insufficiency of service of process was waived under Sections 12 (b) and (h, 1) of the Civil Practice Act. See Code Ann. § 81A-112 (b) and (h, 1). This enumerated error by appellants is also without merit because the Civil Practice Act contains no requirement that a prayer for process be included in the complaint as a prerequisite to valid service of process. See Code Ann. §§ 81A-104 (a) and 81A-108 (a) dealing with the issuance of summons and the contents of a complaint, as well as Code Ann. § 81A-184 providing for the sufficiency of Civil Practice Act complaint forms, without a prayer for process, which are found in Ch. 81A-3.
Appellants' second enumeration of error is that the 1971 zoning ordinance for Fayette County was not properly adopted and is, therefore, void and unenforceable. The fatal defect, urged by appellants, consists of the failure of the minutes of the board of county commissioners to reflect which commissioner initiated the motion to adopt the ordinance; which commissioner seconded the motion; which commissioner moved the adoption of the ordinance and, the failure of the minutes to show the number of votes in favor of adoption. The minutes contain the following language: *222 "On motion duly made, seconded and passed the zoning ordinance of Fayette County, Georgia, October, 1971, and Proposed Zoning Map, Future Land Use and Major Thoroughfare Map, Generalized Land Use Map, and Street and Road Classification Map were adopted." This language is contained in the minutes of the meeting of the board held on October 8, 1971, and October 30, 1971.
Appellants cite no case or statutory authority requiring the minutes of the meeting of the board of commissioners to reflect which member initiated the motion; which member seconded it; which member moved that it be adopted or which members or the number of members who voted for the ordinance. In the absence of such a mandate, the actions of the commissioners are presumed to be valid. See City of Cartersville v. McGinnis, 142 Ga. 71, 76 (82 SE 487, AC 1915D 1067), holding that in the absence of proof to the contrary the recital in the minutes that the ordinance was passed raised a presumption in favor of the regularity of enactment, and Atlantic Co. v. Jones, 86 Ga. App. 515, 525 (71 SE2d 824) (1952), holding that where an ordinance appears regular on its face and recites that it was passed in regular session of the mayor and council of the city it is presumed that the ordinance was legally and properly passed. This principle is applicable to the ordinance adopted by the Board of Commissioners of Fayette County and controls our ruling adversely to appellants in this case.
In another enumeration of error, appellants argue that this ordinance was adopted under the authority of Code Ann. Ch. 69-12, and that law does not delegate to counties the power to zone for mobile homes. Appellants further contend that the statement of purpose contained in the Fayette County Zoning Ordinance ( § 1-4) makes no reference to zoning for mobile homes, and therefore the ordinance cannot be enforced to prevent appellants from placing a mobile home on their property.
The county does not rely on the direct grant of zoning power contained in the 1966 "Home Rule for Counties" amendment to the Constitution. See Code Ann. § 2-8404. Instead, the county agrees that appellants' *223 contentions should be considered under the provisions of Code Ann. Ch. 69-12. We reach the same conclusion whether appellants' contentions are considered under the 1966 constitutional authorization of the county to zone or under the authority to zone delegated by the General Assembly in the law found in Code Ann. Ch. 69-12.
The relevant language contained in Code Ann. § 69-1207 and in § 1-4 of the Fayette County Ordinance are identical. There is authority under each for the county to regulate the location and use of "buildings and other structures." This includes mobile homes. Appellants' contention that a mobile home is not a "structure" is not well founded. The zoning ordinance specifically includes mobile homes in the definition of a "structure." See § 2-37 of the ordinance. We believe this definition in the ordinance is well within the authority to zone "buildings and other structures" contained in Code Ann. § 69-1207.
There can be no serious question that appellants' contention must also fail when the validity of this zoning ordinance is considered under the 1966 constitutional amendment which gave counties direct authority to enact zoning and planning laws.
"Art. III, Sec. VII, Par. XXIII of the Constitution of 1945 (Code Ann. § 2-1923) provided that the General Assembly could grant to counties the authority to enact zoning and planning laws. In 1966 the `Home Rule for Counties Amendment' (Art. XV, Sec. II-A, Par. I; Code Ann. § 2-8402) was ratified, and it eliminated the necessity for enabling legislation by the General Assembly before a county could enact zoning and planning laws. In other words, the 1966 Amendment gave counties direct authority to enact zoning and planning laws. See Johnston v. Hicks, 225 Ga. 576 (170 SE2d 410)...
"It is therefore clear that a county governing authority can create geographical areas within the boundaries of a county which are called zones; the governing authority can declare that the land in a zone can be used only for specified purposes or uses and that all other specified purposes or uses of the land in that zone are prohibited." Gifford-Hill & Co. v. Harrison, 229 Ga. 260, 264 (191 SE2d 85).
*224 Appellants also contend that they have been deprived of their property without due process of law. They argue that this deprivation occurs because the zoning ordinance denies appellants the right to use this mobile home on their property and this denial has the effect of destroying the value of their property for which they have not been compensated.
Appellants purchased and moved the mobile home onto their land after the zoning ordinance was enacted by Fayette County. Thus they are bound by the zoning ordinance if it is valid. In Vulcan Materials Co. v. Griffith, 215 Ga. 811 (114 SE2d 29) (1960), this court held that by ratifying Constitutional Art. III, Sec. VII, Par. XXIII (Code Ann. § 2-1923), which authorized the General Assembly to grant governing authorities of municipalities and counties authority to enact zoning laws, "the people voluntarily subjected their property to the unlimited control and regulation of legislative departments." As previously observed, the constitutional amendment referred to in Vulcan Materials was held in Johnston v. Hicks, 225 Ga. 576 (170 SE2d 410) (1969) to be impliedly repealed by the Home Rule constitutional amendment of 1966, insofar as it applied to unincorporated areas. See also DeKalb County v. Chapel Hill, Inc., 232 Ga. 238, 243 (205 SE2d 854). This amendment is a broad grant of direct constitutional authority to counties to enact zoning ordinances. Under both the zoning power previously delegated by the General Assembly and under the 1966 constitutional amendment, Fayette County was authorized to adopt a reasonable zoning ordinance.
Thus, even if we assume the present ordinance was not adopted pursuant to the power invested in the county by the Home Rule amendment to the Constitution, we cannot agree that appellants have been deprived of their property without due process. In Howden v. City of Savannah, 172 Ga. 833 (159 SE 401) (1931), the appellant made a contention almost identical to the due process contention of the appellants in this case. Appellant in Howden was denied a permit to build a gasoline filling station on land she owned which had been zoned residential. This court held that because of the *225 constitutional amendment investing the General Assembly with authority to empower cities to pass zoning laws, it can no longer be said that a zoning statute is per se unconstitutional and void because it deprives the owner of his property without due process of law. This position has been consistently followed by this court. E.g., see Schofield v. Bishop, 192 Ga. 732 (16 SE2d 714) (1941); Palmer v. Tomlinson, 217 Ga. 399 (122 SE2d 578) (1961). The ratio decidendi of these cases is inescapable in the present case.
Appellants next contend that since the Fayette County zoning ordinance provisions on mobile homes contain no exceptions for "hardships, emergency or for people who were on the property for a long period of time," this also constitutes a violation of appellant's due process rights. In effect, appellants urge that the ordinance is invalid because the classifications in the ordinance fail to take into account several important factors and therefore the ordinance classifications are unreasonable and arbitrary.
The acts of the governing body of a county exercising zoning power will not be disturbed by the courts unless they are clearly arbitrary and unreasonable. Gorieb v. Fox, 274 U. S. 603 (47 SC 675, 71 LE 1228, 53 ALR 1210) (1927); Pruitt v. Meeks, 226 Ga. 661 (177 SE2d 41) (1970); Morgan v. Cherokee Hills &c. Co., 226 Ga. 60 (172 SE2d 669) (1970); Humthlett v. Reeves, 212 Ga. 8 (90 SE2d 14) (1955); Schofield v. Bishop, supra; Howden v. City of Savannah, supra. In Gorieb v. Fox, supra, p. 608, Justice Sutherland, referring to zoning ordinances, stated, "State legislatures and city councils, who deal with the situations from a practical standpoint, are better qualified than the courts to determine the necessity, character and degree of regulation which these new and perplexing conditions require; and their conclusions should not be disturbed by the courts unless clearly arbitrary and unreasonable."
In Humthlett v. Reeves, supra, p. 15, this court described the burden which the property owner must meet in order to prevail: "[T]he burden is on the owner of such property to produce sufficient evidence from which the court can make findings of fact and law such *226 as would justify a holding as a matter of law that the ordinance is arbitrary and unreasonable. It would not be sufficient to show that a more profitable use to the owner of the property could be made, or that such other use will not cause injury to the public, but there must be a showing of an abuse of discretion on the part of the zoning authority, and that there has been an unreasonable and unwarranted exercise of the police power."
Appellants have not shown that the Fayette County zoning ordinance is unreasonable by restricting the use of mobile homes, as residences, to mobile home parks. The zoning classifications of the zoning ordinance must be presumed to be valid until they are shown to be arbitrary and unreasonable. No such showing appears in the present transcript and record before this court.
Appellants also contend that the provisions of the zoning ordinance covering mobile homes have not been uniformly enforced and that appellants have been singled out for prosecution in violation of their right to equal protection under the law. The only evidence we find in the transcript pertaining to this contention is in appellant Mrs. Matthews' deposition, where she states that she knows of two other mobile homes "out that way." This is insufficient to prove a denial of equal protection of the law.
We agree that zoning ordinances must not only be non-discriminatory and reasonable but must also be applied in a non-discriminatory and reasonable manner in order to be enforceable. Tuggle v. Manning, 224 Ga. 29 (159 SE2d 703) (1968); City of Rome v. Shadyside Memorial Gardens, 93 Ga. App. 759 (92 SE2d 734) (1956). However, whether an ordinance is uniformly enforced by the authorities is a question of fact. In granting the interlocutory injunction the trial court implicitly found that appellants had not presented sufficient evidence to demonstrate that the ordinance has not been uniformly enforced or that appellants have been arbitrarily singled out for prosecution. Such a finding will not be interfered with in the absence of a showing of manifest abuse in the exercise of the trial judge's discretion to grant the injunction. Code § 55-108; Pendley v. Lake Harbin Civic Assn., 230 Ga. 631 (198 SE2d 503) (1973); Lawrence v. *227 Harding, 225 Ga. 148 (166 SE2d 336) (1969); Forrester v. City of Gainesville, 223 Ga. 344 (155 SE2d 376) (1967).
Finally, appellants contend that their mobile home is a fallout shelter which does not violate the zoning ordinance. In this connection, § 3-14 of the ordinance provides: "Fallout shelters are permitted as principal or accessory uses in any district, subject to the yard requirements of the district. Shelters shall be maintained so as not to become a hazard or blight to the community." The ordinance does not provide any standards for determining whether any particular structure is a "fallout shelter." However, neither party contends that the fallout shelter provision is void as being too vague and indefinite for enforcement. Therefore, we are concerned only with whether this provision is applicable in the instant case. In support of its contention that the appellants' mobile home is not a fallout shelter, the county introduced into evidence the following: (1) an affidavit from the manager of Deep South of Georgia, Inc., a Mr. McKinnon. In his affidavit, he stated that his company has never manufactured or sold fallout shelters and that appellants purchased a mobile home from his company; (2) a xerox copy of a booklet of the U. S. Department of Defense entitled "Family Shelter Designs" which contains instructions for building 8 types of family fallout shelters; (3) the affidavit of Billy J. Clack, the Deputy Director of Civil Defense for the State, describing the construction of a fallout shelter that would provide the minimum amount of protection required by the Civil Defense Preparedness Agency of the U. S. Government before a structure would be licensed by that agency as a fallout shelter. Mr. Clack also expressed the opinion that a mobile home would not provide the required minimum degree of protection.
Appellants introduced no evidence in support of their assertion that this mobile home is a fallout shelter. They merely refer to the deposition of the zoning administrator of Fayette County, Mr. Wilbanks, in which he was unable to describe the appearance of a fallout shelter. In these circumstances, the trial court was authorized to grant the interlocutory injunction. "It is well settled that the discretion of a superior court judge *228 in granting, refusing or continuing interlocutory injunctions, even where the evidence is conflicting, will not be interfered with in the absence of a showing of manifest abuse." Pendley v. Lake Harbin Civic Assn., p. 636, Lawrence v. Harding, Forrester v. City of Gainesville, all supra; Code § 55-108.
We find no error in the trial court's grant of an interlocutory injunction in this case for any reason enumerated by appellants. Therefore, the judgment of the Superior Court of Fayette County will be affirmed.
Judgment affirmed. All the Justices concur.
| {
"pile_set_name": "FreeLaw"
} |
IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
September 2016 Term FILED
_______________ November 15, 2016
released at 3:00 p.m.
RORY L. PERRY II, CLERK
No. 15-0842 SUPREME COURT OF APPEALS
_______________ OF WEST VIRGINIA
MARTIN DISTRIBUTING COMPANY, INC., DAVID A. MARTIN,
MARLIENE A. MARTIN, AND MICHAEL D. MARTIN,
Petitioners Below, Petitioners
v.
MARK W. MATKOVICH, WEST VIRGINIA
STATE TAX COMMISSIONER,
Respondent Below, Respondent
____________________________________________________________
Appeal from the Circuit Court of Berkeley County
The Honorable John C. Yoder, Judge
Civil Action No. 14-AA-7
AFFIRMED
____________________________________________________________
AND
_______________
No. 15-0857
_______________
BROWN FUNERAL HOME, INC., ROBERT C. FIELDS,
AND DONNA C. FIELDS,
Petitioners Below, Petitioners
v.
MARK W. MATKOVICH, WEST VIRGINIA
STATE TAX COMMISSIONER,
Respondent Below, Respondent
___________________________________________________________
Appeal from the Circuit Court of Berkeley County
The Honorable John C. Yoder, Judge
Civil Action No. 14-AA-8
AFFIRMED
___________________________________________________________
AND
_________________
No. 15-0867
_________________
LOUIS A. LARROW,
Petitioner Below, Petitioner
v.
MARK W. MATKOVICH, WEST VIRGINIA
STATE TAX COMMISSIONER,
Respondent Below, Respondent
____________________________________________________________
Appeal from the Circuit Court of Jefferson County
The Honorable David H. Sanders, Judge
Civil Action No. 15-AA-2
AFFIRMED
___________________________________________________________
AND
________________
No. 15-0869
________________
DAVID M. HAMMER AND EUPHEMIA KALLAS,
Petitioners Below, Petitioners
v.
MARK W. MATKOVICH, WEST VIRGINIA
STATE TAX COMMISSIONER,
Respondent Below, Respondent
___________________________________________________________
Appeal from the Circuit Court of Jefferson County
The Honorable David H. Sanders, Judge
Civil Action No. 15-AA-1
AFFIRMED
__________________________________________________________
Submitted: October 25, 2016
Filed: November 15, 2016
Floyd M. Sayre, III, Esq. Patrick Morrisey, Esq.
Bowles Rice LLP Attorney General
Martinsburg, West Virginia L. Wayne Williams, Esq.
Attorney for the Petitioners Assistant Attorney General
Cassandra L. Means, Esq.
Assistant Attorney General
Charleston, West Virginia
Attorneys for the Respondent
JUSTICE BENJAMIN delivered the Opinion of the Court.
SYLLABUS BY THE COURT
1. “In an administrative appeal from the decision of the West Virginia
Office of Tax Appeals, this Court will review the final order of the circuit court pursuant
to the standards of review in the State Administrative Procedures Act set forth in W. Va.
Code, 29A-5-4(g) [1988]. Findings of fact of the administrative law judge will not be set
aside or vacated unless clearly wrong, and, although administrative interpretation of State
tax provisions will be afforded sound consideration, this Court will review questions of
law de novo.” Syl. pt. 1, Griffith v. Conagra Brands, Inc., 229 W. Va. 190, 728 S.E.2d 74
(2012).
2. “When a statute is clear and the unambiguous and the legislative
intent is plain, the statute should not be interpreted by the courts, and in such case it is the
duty of the courts not to construe but to apply the statute.” Syl. pt. 5, State v. Gen. Daniel
Morgan Post 548, 144 W. Va. 137, 107 S.E.2d 353 (1959).
3. In order to be eligible to claim a tax credit under the 2011 version of
W. Va. Code § 11-6D-4(c) for constructing or purchasing and installing a qualified
alternative-fuel vehicle refueling infrastructure, the infrastructure must be owned by the
applicant for the tax credit, located in this State, not located in or on a private residence
or private home, and used for storing alternative fuels and for dispensing such alternative
fuels into fuel tanks of motor vehicles pursuant to W. Va. Code § 11-6D-2(e) (2011).
i
4. In order to be eligible to claim a tax credit under the 2011 version of
W. Va. Code § 11-6D-4(c) for constructing or purchasing and installing a qualified
alternative fuel vehicle home refueling infrastructure, the infrastructure must be owned
by the applicant for the tax credit, located in this State, located on a private residence or
private home, and used for storing alternative fuels and for dispensing such alternative
fuels into fuel tanks of motor vehicles or for providing electricity to plug-in hybrid
electric vehicles or electric vehicles pursuant to W. Va. Code § 11-6D-2(f) (2011).
5. “The Legislature, when it enacts legislation, is presumed to know of
its prior enactments.” Syl. pt. 12, Vest v. Cobb, 138 W. Va. 660, 76 S.E.2d 885 (1953).
6. “It is always presumed that the legislature will not enact a
meaningless or useless statute.” Syl. pt. 4, State ex rel. Tax Comm’r v. Veterans of
Foreign Wars, 147 W. Va. 645, 129 S.E.2d 921 (1963).
ii
Benjamin, Justice:
The instant proceeding consists of four consolidated appeals. In Appeal
Nos. 15-0842 and 15-0857, the issue is whether the alternative-energy infrastructures
installed by the petitioners for their businesses meet the definition of “qualified
alternative fuel vehicle refueling infrastructure” under W. Va. Code § 11-6D-2(e) (2011)
for the purpose of receiving an alternative-fuel infrastructure tax credit. In Appeal Nos.
15-0867 and 15-0869, the issue is whether the alternative-energy infrastructures installed
by the petitioners for their residences meet the definition of “qualified alternative fuel
vehicle home refueling infrastructure” under W. Va. Code § 11-6D-2(f) (2011) for the
purpose of receiving an alternative fuel-infrastructure tax credit. All of the petitioners
contend that the circuit court erred in affirming the final orders of the West Virginia
Office of Tax Appeals that denied the petitioners’ requests for alternative-fuel
infrastructure tax credits under W. Va. Code § 11-6d-4(c) (2011). Upon review of the
parties’ arguments, the relevant portions of the appendices, and the governing authority,
this Court affirms the circuit courts’ orders from which the petitioners appeal.
I. FACTS AND PROCEDURAL HISTORY
We begin by separately presenting the pertinent facts of each of the four
consolidated appeals.
1
A. Martin Distributing Company, Inc., David A. Martin, Marliene A. Martin, and
Michael D. Martin v. Tax Commissioner, No. 15-0842
Martin Distributing Company, Inc. is a wholesale beer and wine distributor
located in Martinsburg, West Virginia. David Martin, Marliene Martin, and Michael
Martin are part owners of Martin Distributing Company, Inc. (collectively “Martin”). In
2011, Martin installed a sizable system of roof-mounted solar panels for its business
which generates electricity from solar energy.1 The solar panel system installed by Martin
does not include any physical storage tank and does not include any batteries to store
electricity produced by the solar panel system. Although Martin did not own any electric
powered vehicles as of July 30, 2013, the solar panel system has eight charging stations
located in the company parking lot which are available for public use 24 hours a day at
no charge. The electricity generated by the solar panel system is used for general
electrical purposes of operating the business.
B. Brown Funeral Home, Inc., Robert C. Fields, and Donna C. Fields v.
Tax Commissioner, No. 15-0857
Petitioner Brown Funeral Home, Inc. operates a funeral home located in
Martinsburg, West Virginia, and Robert Fields and Donna Fields are part owners of the
funeral home (collectively “Brown”). In 2011, Brown installed roof-mounted solar panels
1
The circuit court described this system as “a 61.1 kilowatt roof mounted solar
array consisting of 260 235-watt panels and a 50 kilowatt PV powered inverter and eight
Schneider EV charging stations.”
2
on its business for generating electricity.2 Brown’s solar panel system does not include
any batteries to store electricity produced by the system. Brown did not own any electric-
powered vehicles as of July 30, 2013. However, Brown’s solar panel system has four
charging stations located in the company parking lot which are available for public use 24
hours a day at no charge.
Based on the installations of the solar panel systems, the petitioners in these
two consolidated appeals claimed a tax credit for installing qualified alternative fuel
vehicle refueling infrastructures pursuant to W. Va. Code § 11-6D-4(c), but were denied
the tax credit by the State Tax Commissioner and the Office of Tax Appeals. The
petitioners now appeal the July 23, 2015, orders of the Circuit Court of Berkeley County
that affirmed the denial of the tax credit.
C. Louis A. Larrow v. Tax Commissioner, No. 15-0867
Petitioner Louis A. Larrow installed a solar panel system on his home
described as a 4.7 kilowatt roof mounted solar system, consisting of 20 235-watt solar
panels, 20 Enphase micro-inverters, and one AV electric vehicle charging station. The
circuit court below found that the 20 235-watt solar panels and 20 Enphase micro-
inverters are not required for the storage or dispensing of electricity to a hybrid vehicle or
electric vehicle. Instead, such functions only require the charging station and distribution
2
The circuit court described the solar installation as a 25.3 kilowatt roof mounted
solar array consisting of 108 235-watt panels, and 3800 inverters, and four Schneider EV
charging stations.
3
panel. Testimony at the administrative hearing indicated that the installation was
designed to produce more electricity than would be required to power the petitioner’s
entire house and car. In addition, the petitioner admitted below that he does not own an
electric or plug-in hybrid electric vehicle. Finally, the circuit court found that although
the petitioner’s installation is capable of dispensing electricity to a hybrid or electric
vehicle, it cannot store electricity as it lacks any on-site storage or batteries. Rather, the
installation is designed to provide the petitioner’s entire residence with power and to
transfer any excess electricity generated back to the grid.
D. David M. Hammer and Euphemia Kallas v.
Tax Commissioner, No. 15-0869
At their private residence in Shepherdstown, West Virginia, Petitioners
David M. Hammer and Euphemia Kallas installed a solar panel system described as a 9.4
kilowatt roof mounted solar system, consisting of 40 235-watt solar panels, 40 Enphase
micro-inverters, and one AV electric vehicle charging station. The 40 235-watt solar
panels and 40 Enphase micro-inverters are not required for the storage or dispensing of
electricity to a hybrid or electric vehicle. Such functions only require the charging station
and distribution panel. The petitioners’ infrastructure did not originally have a plug-in for
charging an alternative fuel vehicle. Although the installation is capable of dispensing
electricity to a hybrid or electric vehicle, it cannot store electricity as it lacks any on-site
storage or batteries. Rather, the infrastructure is designed to provide the entire residence
4
with power and transfer any excess electricity that it has created back to the grid. Finally,
the petitioners did not own an electric-powered vehicle until after 2011.
Based on the installations of the solar panel systems on their homes, the
petitioners in Appeal Nos. 15-0867 and No. 15-0869 claimed a tax credit for installing
qualified fuel vehicle home refueling infrastructures under W. Va. Code § 11-6D-4(c)
which was denied by the State Tax Commissioner and the Office of Tax Appeals. The
petitioners now appeal the July 23, 2015 and August 3, 2015, orders of the Circuit Court
of Jefferson County that affirmed the denial of the tax credit.
II. STANDARD OF REVIEW
In these consolidated cases, this Court is called upon to review the final
orders of the circuit court which affirmed decisions of the Office of Tax Appeals. We
have held:
In an administrative appeal from the decision of the
West Virginia Office of Tax Appeals, this Court will review
the final order of the circuit court pursuant to the standards of
review in the State Administrative Procedures Act set forth in
W.Va.Code, 29A-5-4(g) [1988]. Findings of fact of the
administrative law judge will not be set aside or vacated
unless clearly wrong, and, although administrative
interpretation of State tax provisions will be afforded sound
consideration, this Court will review questions of law de
novo.
Syl. pt. 1, Griffith v. Conagra Brands, Inc., 229 W. Va. 190, 728 S.E.2d 74 (2012). In the
instant cases, the petitioners do not challenge the findings of fact of the Office of Tax
5
Appeals but rather the application of the law. Therefore, this Court’s review is de novo.
Having set forth the appropriate standard of review, we will now proceed to consider the
issues before us.
III. ANALYSIS
The issues in these four consolidated cases concern the alternative-fuel
infrastructure tax credits found in Article 6D of Chapter 11 of the West Virginia Code.
The petitioners in these four consolidated appeals seek an alternative fuel infrastructure
tax credit pursuant to W. Va. Code § 11-6D-4(c). Under this code section, “[a] taxpayer
is eligible to claim the credit against tax provided in this article if he or she: . . . . (c)
Constructs or purchases and installs qualified alternative fuel vehicle refueling
infrastructure or qualified alternative fuel vehicle home refueling infrastructure that is
capable of dispensing alternative fuel for alternative-fuel motor vehicles.” The term
“alternative fuel” is defined in W. Va. Code § 11-6D-2(a)(9) (2011) as “[e]lectricity,
including electricity from solar energy.” The Legislative findings and purpose for
enacting the tax credits are found in W. Va. Code § 11-6D-1 (2011) as follows:
[T]he Legislature hereby finds that the use of alternative fuels
is in the public interest and promotes the general welfare of
the people of this state insofar as it addresses serious concerns
for our environment and our state’s and nation’s dependence
on foreign oil as a source of energy. The Legislature further
finds that this state has an abundant supply of alternative fuels
and an extensive supply network and that, by encouraging the
use of alternatively-fueled motor vehicles, the state will be
reducing its dependence on foreign oil and attempting to
improve its air quality. The Legislature further finds that the
wholesale cost of fuel for certain alternatively-fueled motor
6
vehicles is significantly lower than the cost of fueling
traditional motor vehicles with oil based fuels.
However, because the cost of motor vehicles which
utilize alternative-fuel technologies remains high in relation
to motor vehicles that employ more traditional technologies,
citizens of this state who might otherwise choose an
alternatively-fueled motor vehicle are forced by economic
necessity to continue using motor vehicles that are fueled by
more conventional means. Additionally, the availability of
commercial and residential infrastructure to support
alternatively-fueled vehicles available to the public is
inadequate to encourage the use of alternatively-fueled motor
vehicles. It is the intent of the Legislature that the alternative-
fuel motor vehicle tax credit previously expired in 2006 be
hereby reinstated with changes and amendments as set forth
herein. Therefore, in order to encourage the use of
alternatively-fueled motor vehicles and possibly reduce
unnecessary pollution of our environment and reduce our
dependence on foreign sources of energy, there is hereby
created an alternative-fuel motor vehicles tax credit and an
alternative-fuel infrastructure tax credit.
The petitioners in the first two consolidated appeals seek a tax credit for
constructing a qualified alternative fuel vehicle refueling infrastructure. This type of
infrastructure is defined in W. Va. Code § 11-6D-2(e) (2011). The petitioners in the
second two consolidated appeals seek a tax credit for constructing qualified alternative
fuel vehicle home refueling infrastructure which is defined in W. Va. Code § 11-6D-2(f).
This Court will now proceed to discuss the first two consolidated appeals.
7
A. Martin and Brown Cases
In the Martin and Brown cases, the petitioners seek the “qualified
alternative fuel vehicle refueling infrastructure” tax credit for the installation of solar
panel systems on their businesses. This tax credit is defined in W. Va. Code § 11-6D-2(e)
as follows:
(e) “Qualified alternative fuel vehicle refueling
infrastructure” means property owned by the applicant for the
tax credit and used for storing alternative fuels and for
dispensing such alternative fuels into fuel tanks of motor
vehicles, including, but not limited to compression
equipment, storage tanks and dispensing units for alternative
fuel at the point where the fuel is delivered: Provided, That
the property is installed and located in this state and is not
located on a private residence or private home.
In affirming the decisions of the Office of Tax Appeals in the Martin and
Brown cases, the circuit court noted that the essence of the petitioners’ claims is that they
installed solar panel systems at their business locations which create electricity used to
power plug-in hybrid electric vehicles or electric vehicles. The circuit court then looked
to W. Va. Code § 11-6D-2(e) which defines “qualified alternative fuel vehicle refueling
infrastructure” in pertinent part as “property owned by the applicant for the tax credit and
used for storing alternative fuels and for dispensing such alternative fuels into fuel tanks
of motor vehicles.” Based on this definition, the circuit court found that the tax credit is
only available for property used for the storage and delivery of alternative fuels and not
for property used for the creation of electricity from solar energy. The circuit court
8
concluded that the petitioners do not own any equipment for storing alternative fuels, and
that their solar panel systems were used for general electrical purposes to operate the
businesses and not for dispensing alternative fuels into motor vehicles.3
In challenging the circuit court’s orders, the petitioners present several
arguments.4 First, the petitioners appear to maintain that they should receive the tax credit
for “providing electricity to plug-in hybrid electric vehicles or electric vehicles” as
provided for in W. Va. Code § 11-6D-2(f). The petitioners support their position by
asserting that the circuit court’s reasoning is inconsistent with the legislative purpose of
creating the alternative fuel infrastructure tax credit, and that W. Va. Code § 11-6D-2(e)
and (f) should be construed in favor of the taxpayers because the statutes’ intent is to
promote a social good.
W. Va. Code § 11-6D-4(c) provides the tax credit at issue for a “qualified
alternative-fuel vehicle refueling infrastructure” and for a “qualified alternative fuel
vehicle home refueling infrastructure.” Because the petitioners’ infrastructures were
constructed on their businesses, not their homes, they must claim the tax credit for the
“qualified alternative fuel vehicle refueling infrastructure,” which is defined in W. Va.
Code § 11-6D-2(e) as property “not located in or on a private residence or private home.”
3
The circuit court orders in the Martin and Brown appeals were entered by the
same circuit court judge and rely on essentially the same legal analysis and reasoning.
4
The petitions for appeal in the Martin and Brown cases were drafted by the same
attorney and make the same legal arguments.
9
The clause “providing electricity to plug-in hybrid electric vehicles or electric vehicles”
is not included under the definition of “qualified alternative fuel vehicle refueling
infrastructure” in W. Va. Code § 11-6D-2(e). Therefore, based upon the statutory
language upon which the claimed tax credit is based, the petitioners cannot claim that
their infrastructures constitute qualified alternative fuel vehicle refueling infrastructures
based upon the argument that they provide electricity to plug-in hybrid electric or electric
vehicles.
In addition, the petitioners contend that the circuit court erred in concluding
that their infrastructures are not eligible for the tax credit because they do not store
electricity nor dispense anything into fuel tanks pursuant to W. Va. Code § 11-6D-2(e).
The petitioners aver that they claim the tax credit pursuant to W. Va. Code § 11-6D-4(c)
which provides that a taxpayer is eligible for the tax credit if he or she “[c]onstructs or
purchases and installs qualified alternative fuel vehicle refueling infrastructure . . . that is
capable of dispensing alternative fuel for alternative-fuel motor vehicles.” The petitioners
contend that this statutory provision contains no requirement that an alternative-fuel
infrastructure has to store electricity in order to qualify for the tax credit. The petitioners
assert that the only evidence of record establishes that the infrastructures installed on
their businesses are capable of dispensing alternative fuel into alternative fuel motor
vehicles.
10
We disagree. While the tax credit for owning a qualified alternative fuel
vehicle refueling infrastructure is found in W. Va. Code § 11-6D-4(c), in order to
determine what constitutes a “qualified alternative fuel vehicle refueling infrastructure”
for the purpose of the tax credit, one must consult W. Va. Code § 11-6D-2(e). This
statutory provision defines “qualified alternative fuel vehicle refueling infrastructure,” in
pertinent part, as property “used for storing alternative fuels and for dispensing such
alternative fuels into fuel tanks of motor vehicles.” [Emphasis added.] This statutory
definition plainly requires that a qualifying alternative fuel vehicle refueling
infrastructure not only be capable of dispensing alternative fuels, but also that such a
system also be capable of “storing alternative fuels.” Therefore, the circuit court did not
err in determining that the petitioners’ infrastructures do not meet the definition of
“qualified alternative-fuel vehicle refueling infrastructure” because the infrastructures do
not store alternative fuels.
Although we agree, based upon the Legislative findings and purpose set
forth in W. Va. Code § 11-6D-1 (2011), that the Legislature views the development and
use of alternative fuel vehicles to be in the public interest, we must nevertheless give
effect to the statute as enacted by the Legislature. Under our law, “[w]hen a statute is
clear and unambiguous and the legislative intent is plain, the statute should not be
interpreted by the courts, and in such case it is the duty of the courts not to construe but to
apply the statute.” Syl. pt. 5, State v. Gen. Daniel Morgan Post 548, 144 W. Va. 137, 107
S.E.2d 353 (1959). The applicable code section, W. Va. Code § 11-6D-2(e), is plain and
11
this Court will apply it as written. Based on the plain language of the code section, this
Court now holds that in order to be eligible to claim a tax credit under the 2011 version of
W. Va. Code § 11-6D-4(c) for constructing or purchasing and installing a qualified
alternative fuel vehicle refueling infrastructure, the infrastructure must be owned by the
applicant for the tax credit, located in this State, not located in or on a private residence
or private home, and used for storing alternative fuels and for dispensing such alternative
fuels into fuel tanks of motor vehicles pursuant to W. Va. Code § 11-6D-2(e) (2011).
In the instant cases, the infrastructures constructed by Martin and Brown
did not have the capacity for storing alternative fuels and the infrastructures were used
primarily for providing energy to the petitioners’ businesses and not for dispensing
alternative fuels into motor vehicles. Therefore, we conclude that the infrastructures
constructed by Martin and Brown do not constitute qualified alternative fuel vehicle
refueling infrastructures under W. Va. Code § 11-6D-2(e).
Accordingly, for the reasons set forth above, we conclude that the circuit
court did not err in ruling the infrastructures that the petitioners installed on their
businesses do not constitute qualified alternative fuel vehicle refueling infrastructures for
the purpose of receiving tax credits under W. Va. Code § 11-6D-4(c). Having resolved
the issues in Appeal Nos. 15-0842 and 15-0857, we now turn to Appeal Nos. 15-0867
and 15-0869.
12
B. Larrow and Hammer Cases
In the Larrow and Hammer cases, the petitioners claim the “qualified
alternative fuel vehicle home refueling infrastructure” tax credit for the installation of
solar panel systems on their residences. This tax credit is defined in W. Va. Code § 11
6D-2(f) (2011) as follows5:
(f) “Qualified alternative fuel vehicle home refueling
infrastructure” means property owned by the applicant for the
tax credit located on a private residence or private home and
used for storing alternative fuels and for dispensing such
alternative fuels into fuel tanks of motor vehicles, including,
but not limited to, compression equipment, storage tanks and
dispensing units for alternative fuel at the point where the fuel
is delivered or for providing electricity to plug-in hybrid
electric vehicles or electric vehicles: Provided, That the
property is installed and located in this state.
In ruling against the petitioners, the circuit court acknowledged there is no
dispute regarding the petitioners’ eligibility for a tax credit; what is disputed is the extent
to which the petitioners are entitled to a tax credit. The petitioners argued before the
circuit court that the entirety of their solar panel system constitutes a qualified alternative
fuel vehicle home refueling infrastructure. In rejecting the petitioners’ argument, the
circuit court found that dispensing alternative fuel into motor vehicles is not the sole
function of the petitioners’ infrastructures. The circuit court reasoned that not all of the
components of the petitioners’ infrastructures are necessary for the functions of storing
5
West Virginia Code § 11-6D-4(c) was amended in 2013. The 2013 version of the
statute does not contain a tax credit for qualified alternative fuel vehicle home refueling
infrastructures constructed or purchased and installed on or after April 15, 2013.
13
and dispensing electricity. Were such storage and dispensing the primary function of all
components, said the circuit court, then the installation in its entirety would qualify for
the tax credit.
The circuit court next recognized that the legislative purpose for the
alternative fuel infrastructure tax credit is to encourage the use of alternatively-fueled
motor vehicles and possibly reduce unnecessary pollution of the environment. According
to the circuit court, this purpose does not support the argument for a tax credit for the
installation of an alternative fuel infrastructure, the main purpose of which is to power a
residence.
Finally, the circuit court found that tax credits for the installation of solar
panel systems is addressed separately in W. Va. Code § 11-13Z-1 to 3 (2009). The
circuit court reasoned that in light of the presumption that the Legislature is familiar with
all of the laws that it has enacted, it cannot be concluded that both the alternative-fuel
infrastructure tax credit and the residential solar energy tax credit apply to the solar panel
systems that power residences because such a reading would render one of the two tax
credits redundant.
The petitioners argue on appeal that the circuit court erred in concluding
that only a portion of the infrastructure purchased and installed by the petitioners
constitutes a qualified alternative fuel vehicle home refueling infrastructure under W. Va.
14
Code § 11-6D-2(f).6 The petitioners first rely on the definition of “alternative fuel” in W.
Va. Code § 11-6D-2(a)(9) as “[e]lectricity, including electricity from solar energy.” The
petitioners contend that it is undisputable that they installed equipment that could
dispense electricity, including electricity from solar energy. As the petitioners contend
additionally, the only evidence of record establishes that solar panels, wiring, inverter
boxes, meters and the plug-in are all used for the dispensing of the electricity from solar
energy.
Second, the petitioners assert they are seeking the tax credit set forth in W.
Va. Code § 11-6D-4(c) for a qualified alternative fuel vehicle home refueling
infrastructure that is capable of dispensing alternative fuel into alternative-fuel motor
vehicles. According to the petitioners, the evidence of record establishes that the
equipment which they installed on their residences is capable of dispensing alternative
fuel into alternative fuel motor vehicles. The petitioners assert that W. Va. Code § 11-6D
4(c) does not require a taxpayer to construct a storage and dispensing facility exclusively
designed for the fueling of alternative fuel motor vehicles nor does it require that at the
time of installation the taxpayer have an alternative-fuel motor vehicle.
Finally, the petitioners aver that a grant of the alternative fuel infrastructure
tax credit to each of them would be consistent with the legislative intent stated in W. Va.
6
The petitioner’s briefs in both the Larrow and Hammer cases were prepared by
the same attorney and present the same arguments.
15
Code § 11-6D-1 which is to encourage the construction of both commercial and
residential alternative energy infrastructures for the purpose of encouraging the use of
alternative fuel motor vehicles.
In order to be eligible to receive the alternative fuel infrastructure tax credit
provided for in W. Va. Code § 11-6D-4(c), the petitioners had to construct or purchase
and install a “qualified alternative fuel vehicle home refueling infrastructure.” This type
of infrastructure is defined in W. Va. Code § 11-6D-2(f), which requires, in pertinent
part, that the qualified infrastructure is “used for storing alternative fuels and for
dispensing such alternative fuels into fuel tanks of motor vehicles . . . or for providing
electricity to plug-in hybrid electric vehicles or electric vehicles.” Id. (emphasis added.)
As set forth in our discussion above regarding the similarly worded W. Va. Code § 11
6D-2(e) in the Martin and Brown cases, we cannot overlook the inclusion by the
Legislature of the conjunctive “and” in enacting this legislative section. To be a
“qualified alternative fuel vehicle home refueling infrastructure,” the need for “storing
alternative fuels” is plainly required by this statutory section. Therefore, we now hold
that in order to be eligible to claim a tax credit under the 2011 version of W. Va. Code §
11-6D-4(c) for constructing or purchasing and installing a qualified alternative fuel
vehicle home refueling infrastructure, the infrastructure must be owned by the applicant
for the tax credit, located in this State, located on a private residence or private home, and
used for storing alternative fuels and for dispensing such alternative fuels into fuel tanks
16
of motor vehicles or for providing electricity to plug-in hybrid electric vehicles or electric
vehicles pursuant to W. Va. Code § 11-6D-2(f) (2011).
Regarding the requirement that the qualified infrastructure be used for
storing alternative fuels and dispensing the fuels into motor vehicle tanks, the evidence
below indicates that the petitioners’ infrastructures do not have the capacity to store
electricity. Further, the evidence below indicates that the petitioners’ entire infrastructure
is not used for providing electricity to plug-in hybrid electric vehicles or electric vehicles.
For example, evidence adduced below indicated that the solar panels and micro-inverters
installed by the petitioners are not required for dispensing electricity to hybrid or electric
motor vehicles. Instead, such a function only requires a charging station and distribution
panel. Finally, the evidence indicates that the infrastructures installed by the petitioners
were designed to produce sufficient electricity to provide their entire residences with
power, and transfer any excess electricity that it generates back to the grid. Therefore, it
cannot be said that the petitioners’ entire infrastructures are used for providing electricity
to plug-in hybrid electric vehicles or electric vehicles.
With respect to the petitioners’ argument that granting them the alternative
fuel motor vehicle tax credit for their entire infrastructures is consistent with the
Legislature’s purpose for creating the tax credit., we observe that the Legislature clearly
stated its purpose in W. Va. Code § 11-6D-1as follows: “[I]n order to encourage the use
of alternatively-fueled motor vehicles and possibly reduce unnecessary pollution of our
17
environment and reduce our dependence on foreign sources of energy, there is hereby
created an alternative-fuel motor vehicles tax credit and an alternative-fuel infrastructure
tax credit.” This Court fails to see how installing a solar panel system, the primary
purpose of which is to provide power to a residence, promotes the use of alternatively-
fueled motor vehicles.
Finally, we find it significant that a residential solar energy tax credit was
available to taxpayers who install a solar energy system to power their residences at the
time the petitioners applied for the alternative fuel infrastructure tax credit. According to
W. Va. Code § 11-13Z-1 (2009):
Any taxpayer who installs or causes to be installed a
solar energy system on property located in this state and
owned by the taxpayer and used as a residence after July 1,
2009, shall be allowed a credit against the taxes imposed in
article twenty-one [§§ 11-21-1 et seq.] of this chapter in an
amount equal to thirty percent of the cost to purchase and
install the system up to a maximum amount of $2,000.
In order to receive this tax credit, the solar energy must be used to generate electricity,
heat or cool a structure, provide hot water in the structure, or to provide solar process
heat. See W. Va. Code § 11-13Z-2 (2009). This Court has held that “[t]he Legislature,
when it enacts legislation, is presumed to know of its prior enactments.” Syl. pt. 12, Vest
v. Cobb, 138 W. Va. 660, 76 S.E.2d 885 (1953). When the Legislature amended Article
6D, Chapter 11 of the Code in 2011 to make tax credits available for qualified alternative
fuel vehicle home refueling infrastructures, we presume that the Legislature knew of its
prior enactment of Article 13Z of Chapter 11 of the Code providing the residential solar
18
energy tax credit. Further, “[i]t is always presumed that the legislature will not enact a
meaningless or useless statute.” Syl. pt. 4, State ex rel. Tax Comm’r v. Veterans of
Foreign Wars, 147 W. Va. 645, 129 S.E.2d 921 (1963). Having provided a tax credit for
solar energy systems that provide power to residences in W. Va. Code § 11-13Z-1 in
2009, we presume that the Legislature would not have provided the same tax credit in W.
Va. Code § 11-6D-4(c) in 2011.
Therefore, based on the reasoning above, we conclude that the circuit court
did not err in concluding that only a portion of the infrastructures purchased and installed
by the petitioners constituted qualified alternative fuel vehicle home refueling
infrastructures for the purpose of receiving tax credits under W. Va. Code § 11-6D-4(c).7
IV. CONCLUSION
For the reasons expressed above, in Appeal Nos. 15-0842 and 15-0857, we
affirm the July 23, 2015, orders of the Circuit Court of Berkeley County that affirmed the
decision of the Office of Tax Appeals to deny the alternative fuel infrastructure tax
credits sought by the petitioners. Likewise, in Appeal Nos. 15-0867 and 15-0869, we
affirm the July 23, 2015 and August 3, 2015, orders of the Circuit Court of Jefferson
7
In a second assignment of error, the petitioners contend that the circuit court
erred in concluding that W. Va. Code § 11-6D-4(c) requires a qualified alternative fuel
vehicle home refueling infrastructure to store the electricity produced. Because we
addressed this issue in our analysis of the first two consolidated appeals, we do not find it
necessary to address it again.
19
County that affirmed the decision of the Office of Tax Appeals to deny the alternative-
fuel infrastructure tax credits sought by the petitioners.
Appeal No. 15-0842, Affirmed.
Appeal No. 15-0857, Affirmed.
Appeal No. 15-0867, Affirmed.
Appeal No. 15-0869, Affirmed.
20
| {
"pile_set_name": "FreeLaw"
} |
543 U.S. 972
MADDENv.UNITED STATES.
No. 04-6510.
Supreme Court of United States.
November 1, 2004.
1
C. A. 4th Cir. Certiorari denied. Reported below: 104 Fed. Appx. 331.
| {
"pile_set_name": "FreeLaw"
} |
103 P.3d 177 (2004)
2004 UT App 419
In the Matter of the ADOPTION OF E.H., a minor.
T.H., Appellant,
v.
R.C. and S.C., Appellees.
No. 20030780-CA.
Court of Appeals of Utah.
November 18, 2004.
*178 Linda Faye Smith, Salt Lake City, for Appellant.
Melvin G. Larew, Draper, and Gregory P. Hawkins and Rick L. Sorensen, Hawkins & Sorensen, Murray, for Appellees.
Before Judges BENCH, ORME, and THORNE.
OPINION
ORME, Judge:
¶ 1 T.H. appeals the trial court's ruling that the parties' stipulation for evaluation and final resolution of a contested adoption would not be enforced. We reverse and remand.
BACKGROUND
¶ 2 Faced with an unplanned pregnancy, T.H. contacted the Adoption Law Center, a California law office, in the fall of 2000, to explore the option of placing her unborn child for adoption. Around the same time, a Utah couple (the Cs) hired Families for Children, a licensed Utah child placement agency, to perform a home study of their family so as to be eligible to adopt a child. Suzanne Stott, Director of Families for Children, handled the home study, which she based on a *179 family group interview she conducted in the Cs' home. Stott submitted her report on the Cs to the Families for Children adoption panel and recommended approval of the family as eligible to adopt. The panel approved the Cs for adoption privileges.
¶ 3 On November 14, 2000, the Cs, who are Caucasian, contacted the Adoption Law Center and expressed interest in adopting an African-American baby. They sent a letter to the Adoption Law Center that described their family, which an employee subsequently read over the telephone to T.H. The employee then arranged for T.H. and the Cs to talk via telephone. After their conversation, they informed the Adoption Law Center that they wished to arrange for the Cs' adoption of T.H.'s expected baby. The Cs retained Families for Children to provide adoptive services to T.H. and to take her relinquishment for the adoption.
¶ 4 On November 24, 2000, T.H. flew to Utah and gave birth to her baby three days later. On November 29, T.H. signed a document relinquishing her parental rights and granting custody of the child to Families for Children.
¶ 5 T.H. and her other two children lived with the Cs for approximately two and one-half months following the birth. During the course of her stay at the Cs' home, and after close observation of the family, T.H. became concerned with the way the Cs were raising their children. She concluded that the home study evaluation conducted by Stott, which was the basis for Families for Children's decision to approve the Cs to adopt and was influential in T.H.'s decision to select the Cs to adopt her baby, inaccurately described the Cs' family and the way the Cs were raising their children.[1]
¶ 6 The evaluation reported that two of the C children were honor students. However, T.H. noted that the children were actually home schooled, were far from "honor students" in any usual sense of the term, and appeared to be delayed in their education for their ages. She also noted that the children appeared to have no healthy relationships outside the family and that the children with disabilities seemed to be totally isolated from the rest of the family.[2] T.H. was particularly surprised that the ten-year-old with Down syndrome was still in diapers, as her own Down syndrome brother had been out of diapers since age three.
¶ 7 Based upon these postrelinquishment concerns, T.H. moved out of the Cs' home and filed a verified petition for custody of her child. Shortly thereafter, the Cs filed a petition for adoption. The court consolidated both the custody case and the adoption case on joint motion of the parties.
¶ 8 On August 31, 2001, the Cs filed a motion to dismiss T.H.'s petition, to which T.H. timely responded. In October 2001, T.H. filed a motion for summary judgment. Instead of waiting for the court to rule on the motions, the two sides, both represented by counsel, agreed to stipulate to a final resolution of the case. The stipulation provided that a clinical psychologist "shall determine what custody arrangement or decree of adoption should be ordered and whether any order for visitation or other contact should also be entered in this case." The parties further stipulated to "be bound by the recommendation(s) of the [clinical psychologist] and said recommendation(s) may be entered as the Judgment(s) of this Court without further proceedings." Based upon this stipulation, Judge Taylor entered an order approving and implementing the stipulation, and authorizing the appointment of a clinical psychologist to conduct the evaluation and recommend "an equitable and just outcome to promote the best interests of the infant." The parties ultimately appointed Dr. Chris Wehl, "a psychologist with expertise in conducting *180 custody evaluations," to evaluate the issues in this case.
¶ 9 Approximately one year after the parties appointed Dr. Wehl to evaluate the case, Dr. Wehl completed the custody evaluation.[3] He concluded that the Cs' petition for adoption should be dismissed and that the child should be returned to T.H. T.H. filed a motion to adopt the evaluator's recommendation, dismiss the Cs' adoption petition, and grant custody to T.H. immediately. The Cs objected to this motion and to the custody evaluation, asserting that the custody evaluation "contains factual inaccuracies and may be biased as a result of a conflict of interest." Judge Jones, who replaced the recently retired Judge Taylor as the judge responsible for this case, determined that it would be inappropriate to adopt Dr. Wehl's recommendations.[4] At a later evidentiary hearing, convened to determine whether T.H. could legally revoke her consent, Judge Jones granted the Cs' petition for adoption. T.H. appeals.
ISSUES AND STANDARD OF REVIEW
¶ 10 T.H. argues that Judge Jones erred in ignoring the parties' stipulation and deviating from Judge Taylor's order implementing the stipulation. Issues involving the deviation from prior orders are ordinarily reviewed under an abuse of discretion standard. See Mascaro v. Davis, 741 P.2d 938, 942, 946-47 (Utah 1987).
ANALYSIS
¶ 11 Judge Jones voided the stipulation between the parties, reasoning that although they had in fact agreed to be bound by the findings and recommendation of Dr. Wehl the court "does not believe it is in the best interest of the baby to enforce the stipulation." T.H. argues that the parties' stipulation was indeed a binding settlement agreement that should have been enforced by the court. Accordingly, the central issue in this case turns on whether it was an abuse of discretion for Judge Jones to refuse to adopt the recommendation of Dr. Wehl, especially given that Judge Taylor had expressly approved the stipulated arrangement which culminated in the recommendation.
¶ 12 The Utah Supreme Court has stated that "[i]t is a basic rule that the law favors the settlement of disputes." Mascaro, 741 P.2d at 942. Such "[s]ettlements are favored in the law, and should be encouraged, because of the obvious benefits accruing not only to the parties, but also to the judicial system." Tracy-Collins Bank & Trust Co. v. Travelstead, 592 P.2d 605, 607 (Utah 1979). Moreover, the Court noted, "so simple and speedy a remedy serves well the policy favoring compromise, which in turn has made a major contribution to its popularity." Id. at 609 (internal quotations and citation omitted). Thus, "the trial court has power to summarily enforce on motion a settlement agreement entered into by the litigants while the litigation is pending before it." Id. (internal quotations and citation omitted).
¶ 13 The determination of whether to enforce a settlement agreement is governed by "basic contract principles." Mascaro, 741 P.2d at 942. The Mascaro Court noted that "whether a court should enforce such an agreement does not turn merely on the character of the agreement." Id. Rather, a settlement agreement "constitutes an executory *181 accord. Since an executory accord `constitutes a valid enforceable contract,' basic contract principles affect the determination of when a settlement agreement should be so enforced." Id. (footnotes and citations omitted).
¶ 14 Given the background of this case, it is clear that both sides intended for the stipulation to be a binding settlement agreement. Each had much to lose in forging ahead to a purely legal resolution, and each had, to their credit, the desire to do what was best for the child. At the same time, each side recognized its own lack of objectivity and the wisdom of trusting a neutral professional to make a sound recommendation to the court. The stipulation to which they agreed specifically had as its goal not just the resolution of litigation, but advancing "the best interests of the infant."[5]
¶ 15 Prior to the time the parties entered into the stipulation, both sides had submitted winner-take-all motions. T.H. had filed a verified petition for custody, seeking to prevent the Cs from adopting the child because of her concerns about the child's welfare under the Cs' care. Around the same time, the Cs sought closure in the adoption matter and filed a petition for adoption and a motion to dismiss, averring that the child would fare better in the Cs' home than in T.H.'s home. Instead of pursuing these motions to their respective ends, however, both parties prudently agreed to abandon their claims against one another and stipulated to an evaluation and final resolution of the case.[6] The stipulation provided, in part, for a neutral custody evaluator, which both parties would agree upon as they ultimately did to determine who should exercise parental rights over the child.
¶ 16 The stipulation is valid under basic contract principles, and the Cs do not argue otherwise. Rather, the Cs appear to concede that under general principles of contract, settlement, and stipulation, the order entered by Judge Jones and challenged in this appeal cannot be sustained. Instead, they argue that the stipulation is invalid on other grounds, and that Judge Jones's order invalidating it should be affirmed on the basis of other criteria. We address each of the Cs' assertions in turn, while noting with admitted skepticism that none of these concerns about the validity of the stipulation or enforceability of Judge Taylor's order based thereon were raised by the Cs with the trial court until after Dr. Wehl had made his recommendation in favor of T.H.
¶ 17 First, the Cs argue that the stipulation was invalid when entered into because it impermissibly vested a nonjudge, Dr. Wehl, with final decisionmaking authority. While a court is prohibited from delegating its "core judicial function[s]," such as entering final orders and judgments, it is not prohibited from employing individuals to aid the court in its role as decision maker. Salt Lake City v. Ohms, 881 P.2d 844, 848 (Utah 1994).[7] The Utah Supreme Court has recognized *182 that a trial court may "utilize referees, court commissioners, and other assistants for various purposes." Id. Here, the Cs fail to distinguish between the circumstances that prohibit a court from delegating its core judicial functions to a nonjudge and those that permit a court to utilize an expert assistant to aid in the judicial process.
¶ 18 In Ohms, the defendant was charged with providing false or misleading information to a police officer. See id. at 846. Prior to his trial, the defendant signed a consent form in which he "consented to have his case tried and final judgment entered by a circuit court commissioner." Id. The Court held that the commissioner could not serve as a de facto judge and perform core judicial functions, such as entering final orders and judgments or imposing sentence. See id. at 851. However, the Supreme Court specifically noted that its ruling did not prohibit a commissioner from aiding the court in a variety of other functions, including "mak[ing] recommendations to the court regarding any issue in domestic relations and spouse abuse cases" or "conduct [ing] hearings with parties and their counsel present ... for the purpose of submitting recommendations to the court[.]" Id. at 851 n. 17 (second alteration in original) (internal quotations, emphasis, and citation omitted). Clearly, the Court recognized the propriety of judges relying upon nonjudicial recommendations in appropriate cases.
¶ 19 In this case, at the parties' behest, Judge Taylor entered an order approving and implementing the parties' stipulated arrangement for settling their dispute while advancing the child's best interest. At the center of this arrangement was their mutual pledge to rely upon a licensed clinical psychologist to recommend custody arrangements and/or a decree of adoption. While the parties agreed to be bound by the recommendation, the court still retained the ultimate authority to enter the final order of the court. Unlike in Ohms, where the commissioner presided over the trial and entered the judgment of the court, Dr. Wehl had no power to enter an order. Rather, Dr. Wehl's only assignment entailed conducting an unbiased evaluation and making recommendations relative to the best interests of the child. The parties contracted to abide by those recommendations and to waive all claims inconsistent therewith. The court held the ultimate authority to preside over the proceedings, to make sure the recommendations were properly arrived at, and to enter the final order.[8] Of course, the stipulation of the parties waiving their respective claims and defenses and indicating they would be bound by the recommendations of the evaluator, and the court's approval of the arrangement, did restrict the usually unfettered prerogative of the court to ignore a mere recommendation.
¶ 20 Second, the Cs maintain that the stipulation was invalid because it caused the parties to stipulate to an "erroneous legal standard." The Cs assert that section 78-30-4.16 of the Utah Code expressly requires that it first be determined whether T.H. could show the grounds necessary to revoke her relinquishment of rights before determining what would be in the best interests of the child. The Cs argue that the parties stipulated to an erroneous legal standard by agreeing to have an evaluator determine what custody arrangement would be best for *183 the child without having the court address whether T.H.'s original relinquishment was valid. Section 78-30-4.16 contains no such express requirement.[9]See Utah Code Ann. § 78-30-4.16 (2002). Regardless, the case before us does not require us to address whether, in the ordinary case, the validity of a relinquishment must be determined before the best interests of the child are determined. This is because the Cs failed to raise this argument when T.H. first contested the adoption, and subsequently waived the right to raise it by entering into the stipulation and agreeing to be bound by the recommendations of the evaluator. The Cs cannot now renege on their obligation to accept the recommendation of the evaluator, raising an argument they waived by entering into the stipulation, solely because they do not agree with Dr. Wehl's recommendation. Similarly, Judge Jones's determination that "whether or not the Relinquishment was valid must be determined before the best interest of the child is determined," while generally true,[10] is incorrect in this case, where the validity of the relinquishment was put in issue and the parties, by stipulation, then waived their respective claims concerning the validity of the relinquishment. In other words, the stipulation is not invalid because it permitted resolution of the case without determining whether the relinquishment was enforceable. Instead, the enforceability of the relinquishment was among the issues swept away by the parties' stipulation and their decision to compromise their mutually inconsistent legal theories by having the case resolved in the best interests of the child, as evaluated by a neutral expert.
¶ 21 In the Cs' final argument opposing the validity of the settlement stipulation, they argue that, notwithstanding the law of the case doctrine, Judge Jones properly departed from Judge Taylor's prior order. T.H. argues, on the other hand, that in light of the law of the case doctrine, Judge Jones was bound by Judge Taylor's prior order and was powerless to deviate from it.
¶ 22 While T.H.'s rigid view of the doctrine is often advanced by parties who would benefit from its application, we reiterate that the law of the case doctrine is a flexible principle-not an absolute limit on the court's power nor "`an inexorable command that rigidly binds a court to its former decisions.'" Gillmor v. Wright, 850 P.2d 431, 439 (Utah 1993) (Orme, J., concurring) (citations omitted). Rather, it "merely expresses the practice of courts generally to refuse to reopen what has been decided." Messinger v. Anderson, 225 U.S. 436, 444, 32 S.Ct. 739, 56 L.Ed. 1152 (1912). "The law of the case doctrine is not a limit on judicial power, but only a practice designed `to protect both court and parties against the burdens of repeated reargument by indefatigable diehards.'" Gillmor, 850 P.2d at 439 (Orme, J., concurring) (quoting 18 Charles A. Wright et al., Federal Practice and Procedure § 4478, at 789-90 (1981)). In the context of this case, it is important to emphasize that, properly understood, the law of the case doctrine did not restrict the scope of Judge Jones's discretion any more than Judge Taylor's was restricted by the court's prior order approving and implementing the parties' stipulation. With one exception not relevant here, see Utah Code Ann. § 78-7-19(1) (2002), initial and subsequent judges of the same court are on the same footing as concerns the effect of a prior order on later judicial action. See Trembly v. Mrs. Fields Cookies, 884 P.2d 1306, 1311 n. 4 (Utah Ct.App.1994) ("`[I]n a sense, the two judges, while different persons, constitute a single judicial office for law of the case purposes.'") (quoting Gillmor, 850 P.2d at 439-40 (Orme, J., concurring)).
¶ 23 Although we have explained that the doctrine is not an "inexorable command," we *184 view it as a sound presumptive rule and its application should not be disregarded in the exercise of unfettered discretion. Because of the rule's sensible principles, "[t]he standards announced for departing from the law of the case commonly demand strong justification," 18B Charles A. Wright et al., Federal Practice and Procedure § 4478, at 670 (2002), and judges should not depart from the doctrine unless a compelling reason exists.
¶ 24 No such reason exists in this case. The Cs have not demonstrated that the stipulation and resulting order were so flawed that they demanded repudiation by Judge Jones, nor that Dr. Wehl's recommendation was so outlandish as to compel rejection. The Cs primary argument is that the stipulation was breached because the evaluation was flawed and the recommendation was not in the best interests of the child. We disagree.
¶ 25 The stipulation's guiding principle was that a neutral evaluation would go a long way in meeting the child's best interest. It is apparent that Dr. Wehl had only this goal in mind, as evidenced by the exhaustive evaluation he prepared and submitted.[11] In conducting the evaluation, he was instructed to primarily consider the conduct of all the parties in determining what would be in the child's best interest, as well as to consider the interests of the other minor children of both parties.[12] To comply with these guidelines, Dr. Wehl personally interviewed each member of both families and prepared a summary of his observations. He allowed each party to present their version of the events relevant to this case and allowed them to respond to and submit documents refuting any accusations made by the opposing party.
¶ 26 During his home visits, Dr. Wehl made observations about child autonomy, family interactions, and the physical environment. Time spent away from the parties was used for reviewing court documents, affidavits, DCFS records, school records, medical records, and depositions. He used a variety of psychological assessments of the parties to examine various dimensions of their personalities, including multiphasic personality inventories, a parent-child relationship inventory, and various intelligence achievement tests. When reviewing all the data compiled during the course of his evaluation, Dr. Wehl weighted the data differentially, depending upon the reliability of the data or source. Highest priority was given to information coming from independent third parties and other objective information, while lowest priority was given to inconsistent or clearly biased statements.
¶ 27 It is apparent that, when the parties entered into the stipulation, their intent was to rely upon the evaluation of a qualified clinical psychologist who could provide them with an unbiased recommendation. As shown in the record, Dr. Wehl's impartial methods provided this reliable avenue for determining the best interests of the child.
¶ 28 As evidence that the child would not fare as well if raised by the Cs, Dr. Wehl identified specific conditions in the Cs' home that could be inimical to the child's best interest. For example, among many other things, he noted that the C children were delayed in their educational development and exhibited minimal social skills, which was supported by his observation that the "level of social isolation experienced by the [C] family is quite severe"; one child had "no friends and no social outlets"; and the Cs' solution to family problems was "to isolate" the children.
¶ 29 Confirming T.H.'s concern, he noted that the average range for successful toilet training in a Down syndrome child is from two to seven years old. However, the Cs' ten-year-old child with Down syndrome still *185 wore diapers and received no active toilet training from any family members. With apparent concern, he identified the two children with cerebral palsy and Down syndrome as receiving differential treatment and experiencing possible neglect.[13] The evaluation set forth the following reasoning for Dr. Wehl's final recommendation:
It is evident that the decisions of [the Cs] have seriously hampered the development of the [C] children socially and educationally. All of the children are many years delayed in their educational development. The social needs of the children have not been met to any significant extent. [T.H.'s c]hildren, by contrast, are functioning quite well, socially and educationally. What difficulties they have [T.H.] is aware of, and working with appropriate people (e.g., schools, tutors) to remedy.[14]
¶ 30 The Cs argue that Dr. Wehl's recommendation was not in the best interests of the child. However, given Dr. Wehl's findings, we cannot say the evidence weighs against his ultimate recommendation much less to the degree required to overcome the presumptive effect of the law of the case. Dr. Elizabeth Stewart, an attorney and clinical psychologist with recognized expertise in the area of child custody, reviewed Dr. Wehl's detailed custody evaluation and attested to its competency:
[T]he process complied with professional standards and ... the evidence relied upon comported with professional standards and with legal standards in custody and adoption cases. Given the facts reported, the ultimate recommendation to disallow the adoption and return custody to [T.H.] appears to be appropriate and in the best interests of the child. I find no reason to question that ultimate recommendation on either psychological or legal grounds.[15]
¶ 31 Because the Cs have not demonstrated that Dr. Wehl's evaluation was biased, not in the best interests of the child, or otherwise flawed, we hold that Judge Jones abused his discretion in not enforcing the parties' stipulation, in departing from the prior order entered by Judge Taylor, and in rejecting Dr. Wehl's recommendation in the absence of demonstrated irregularities in his methods or conclusions.
CONCLUSION
¶ 32 We hold that the stipulation was intended to be a binding settlement agreement, to provide a process for a full, fair, and complete resolution of the contested adoption. Because there appears to be no reason for noncompliance with the settlement agreement other than the Cs' disagreement with the outcome of the evaluation, we see no basis on which the parties' stipulation and the resulting order of Judge Taylor can properly be renounced, especially given the presumptive effect of the law of the case doctrine. Because we do not detect any fatal flaws in the creation or implementation of the settlement agreement, it should have been enforced by Judge Jones. Judge Jones abused his discretion in departing from Judge Taylor's order and should have enforced the stipulation for evaluation and final resolution. Accordingly, we vacate Judge Jones's order and remand for such other proceedings as may now be appropriate.
¶ 33 I CONCUR: WILLIAM A. THORNE JR., Judge.
*186 ¶ 34 I CONCUR IN THE RESULT: RUSSELL W. BENCH, Associate Presiding Judge.
NOTES
[1] T.H. also claimed to have been misled about Mr. C's "alcohol problem," and indeed Mrs. C "acknowledged that her husband was a recovering alcoholic," but Judge Jones specifically found that T.H. had not been misled on this point. Judge Jones also found that T.H. was not materially misled by Mrs. C's exaggeration of her professional credentials. (Mrs. C represented herself to T.H. as a "nurse," but was actually a "certified nurse assistant," having completed the six-month course in three weeks time.)
[2] At the time, the Cs had five children between the ages of ten and seventeen, all of whom were adopted, and some of whom had disabilities.
[3] There is no question that Dr. Wehl submitted a thorough evaluation. He clearly exercised great care and appropriate professional judgment in undertaking the evaluation. At the same time, a year in the life of an infant is a very long time, and the need for greater haste should have been apparent, particularly if there was any possibility the recommendation would be to restore the child to T.H. While taking a full year to complete the work seems questionable, we note that, during the course of Dr. Wehl's work, neither side complained to the court about how long it was taking and neither side asked the court to set a deadline for completion of the evaluation.
[4] Judge Jones concluded that the stipulation was unenforceable because Dr. Wehl's evaluation was flawed. He based this determination on the opinions of the Cs, Suzanne Stott, Dr. Matthew Davis, and J. Neil Birch, a licensed sociologist, who posited that the best interests of the child would be served by adoption. Other grounds for Judge Jones's decision included the amount of money the Cs spent on the adoption and related legal proceedings, the fact that Dr. Wehl's professional practice focused more heavily on custody in divorce proceedings than adoption cases, and Dr. Wehl's choice of guidelines in undertaking the evaluation.
[5] Thus, the stipulation and Judge Taylor's implementing order pose none of the evils that could arise in settling litigation of this sort, e.g., compromise induced by the payment of cash; or resolution on the basis of a legal standard other than the best interests of the child, such as on the basis of which family has the greater net worth or is more devoutly religious; or entrusting the recommendation not to a clinical psychologist with expertise in custody evaluations, but to a welder or astrophysicist.
[6] The stipulation outlines the rights forfeited by both parties and imposes related obligations on them:
[T.H.] having waived any right to proceed on her claim to set aside the relinquishment for fraud, constructive fraud, violation of procedures, breach of contract, or for any other good cause in light of the parties' Stipulation, it is hereby ordered that she shall not challenge the Judgment in this case or in the adoption case on the basis of such claims. [The Cs] and Families for Children having waived any right to object to or challenge the propriety or enforceability of a Judgment for post-adoption contact in this case in light of the parties' Stipulation, it is hereby ordered that they shall not challenge such an order or Judgment for post-adoption contact should such an order or Judgment be recommended.
[7] The Court in Salt Lake City v. Ohms, 881 P.2d 844 (Utah 1994), described certain powers as nondelegable core judicial powers. The Court explained that "[t]he term `judicial power of courts' is generally understood to be the power to hear and determine controversies between adverse parties and questions in litigation." Id. at 849 (citations omitted). See, e.g., Holm v. Smilowitz, 840 P.2d 157, 165 (Utah Ct.App.1992). Nondelegable judicial powers include "the authority to hear and determine justiciable controversies[;] ... the authority to enforce any valid judgment, decree or order[;]... [and the] power[] that [is] necessary to protect the fundamental integrity of the judicial branch." Ohms, 881 P.2d at 849 (internal quotations and citations omitted).
[8] The Cs argue that Judge Taylor agreed to be impermissibly bound by Dr. Wehl's recommendation. However, the stipulation mandated that Dr. Wehl conduct his evaluation "in accordance with [the best interests of the child], in accordance with best practices in custody and adoption studies and evaluations, and as counsel shall specifically request." If Dr. Wehl had conducted the evaluation in a manner that subverted the best interests of the child, departed from the best practices in custody and adoption studies and evaluations, deviated from counsel's specific requests, or otherwise varied from the provisions of the stipulation, Judge Taylor of course retained the authority to deviate from Dr. Wehl's recommendation. As his successor, Judge Jones likewise had this same authority to make sure the terms of the stipulation had been faithfully implemented and to deviate from Dr. Wehl's recommendations if it became clear the stipulation had been breached.
[9] Section 78-30-4.16(1) insures that all parties entitled to notice and consent have not been denied that right, and section 78-30-4.16(2) requires a court to conduct an evidentiary hearing when an adoption petition is denied. See Utah Code Ann. § 78-30-4.16(1), (2) (2002).
[10] See In re Adoption of B.T.D., 2003 UT App 99,¶ 19, 68 P.3d 1021 ("A parent's consent to adoption is irrevocable in Utah, see Utah Code Ann. § 78-30-4.20 (2001), unless the parent can show that the consent `was not entered into voluntarily but was induced through duress, undue influence, or under some misrepresentation or deception; or other grounds which would justify release from the obligations of any contract.'") (citation omitted).
[11] As one justification for voiding the stipulation between the parties, Judge Jones stated that Dr. Wehl used the wrong guidelines to conduct the evaluation because he used the guidelines for a custody evaluation in a divorce proceeding rather than the guidelines for an adoption proceeding. However, Dr. Elizabeth Stewart, a clinical psychologist with forty-four years experience in conducting adoption evaluations, reviewed Dr. Wehl's evaluation and averred that it complied with the proper standards used in both custody and adoption cases.
[12] At the time Dr. Wehl completed his evaluation, T.H. had two minor children and the Cs had four minor children and one eighteen-year-old son who no longer lived at home.
[13] Dr. Wehl reported that the child with cerebral palsy was, on several occasions, left alone curbside to wait twenty-five to thirty-five minutes for the bus in near freezing temperatures. He also noted that the room shared by the children with disabilities emitted a strong odor of feces and urine.
[14] In a final attempt to discredit the validity of the stipulation, the Cs assert that the enforcement of the stipulation violates public policy because in his evaluation, Dr. Wehl indicated race as "[a]nother element of importance in this case." However, after viewing the evaluation in its entirety, it is clear that Dr. Wehl did not base his recommendation upon race, but upon his conclusions about the Cs' inability to properly socialize their children.
[15] The affidavits of school principal Art Stowers, Professor John McDonnell, and Phillip Johnson also indicate that Dr. Wehl's recommendation was in the best interests of the child at that time.
| {
"pile_set_name": "FreeLaw"
} |
199 S.E.2d 23 (1973)
19 N.C. App. 414
STATE of North Carolina
v.
Gwendolyn Gill KEITT and Danny Edward Cobb.
No. 7318SC602.
Court of Appeals of North Carolina.
September 19, 1973.
Certiorari Denied November 1, 1973.
*25 Atty. Gen. Robert Morgan by William F. Briley, Asst. Atty. Gen., Raleigh, for the State.
Lee, High, Taylor, Dansby & Stanback, by Herman L. Taylor, Greensboro, for defendant Gwendolyn Gill Keitt.
Frye, Johnson & Barbee by Walter T. Johnson, Jr., Greensboro, for defendant Danny Edward Cobb.
Certiorari Denied by Supreme Court November 1, 1973.
BRITT, Judge.
Defendants assign as error the denial of their motions to be tried separately. This assignment has no merit. The two defendants were charged with identical offenses that were connected and tied together in time, place and circumstances. The consolidation for trial of the cases charging them with possession of heroin under the facts appearing is fully authorized by the statutory and case law of our State. G.S. § 15-152; State v. Yoes et al., 271 N.C. 616, 157 S.E.2d 386 (1967); State v. Walker et al., 6 N.C.App. 447, 170 S.E.2d 627 (1969).
Defendants assign as error the denial of their motions to suppress evidence obtained pursuant to a search of the automobile and the motel room and the admissions of the fruits of the search into evidence. This assignment has no merit.
The record reveals: Upon the call of the cases for trial on 26 February 1973, before arraignment of defendants and in the absence of prospective jurors, defendants made several motions including a motion *26 "to suppress any evidence in the cases seized pursuant to a search warrant." On 27 February 1973 the court resumed its sitting. Defendants were arraigned and pleaded not guilty. Also on 27 February 1973, the court entered an order (briefly summarized) reciting that defendants' motions to suppress evidence came on to be heard; the court found as facts that the court was presented with a search warrant issued at 9:25 p. m. on 31 July 1972 authorizing a search of defendant Cobb's person, Room 228 of the Ramada Inn, and a 1972 Plymouth bearing N.C. license number 6289-C, that the search warrant was fully supported by an affidavit, that defendants offered no evidence at the voir dire, that defendant Keitt had no proprietary interest in Room 228 and the search warrant was not directed at her or her property; and the court concluded that the search warrant was proper "in form and content" and that defendants' motions to suppress were denied. The affidavit to obtain a search warrant and the search warrant are included in the record.
Defendants argue that the court did not conduct a hearing on their motions to suppress evidence and they have filed as an exhibit what purports to be the court reporter's "transcript of proceedings." We must reject the argument and exhibit. It is well settled in this jurisdiction that the record as certified imports verity and the Court of Appeals is bound thereby. 3 Strong, N.C.Index 2d, Criminal Law, § 158, p. 107. This court is bound by the record as certified and can judicially know only what appears of record. State v. Shedd, 274 N.C. 95, 161 S.E.2d 477 (1968).
The certified record before us reveals that there was a hearing on defendants' motions to suppress evidence. The search warrant and the affidavit supporting the same are sufficient to meet the requirements of law, and the order of the trial judge contains sufficient findings to hold the evidence admissible. Having been sufficiently heard on their motions to suppress, defendants were not entitled to a further voir dire hearing when they objected to the evidence at trial. See State v. Myers, 266 N.C. 581, 146 S.E.2d 674 (1966); State v. Thompson, 15 N.C.App. 416, 190 S.E.2d 355 (1972), cert. den. 282 N.C. 307, 192 S.E.2d 197 (1972). The assignment of error is overruled.
Defendants assign as error the admission into evidence of State's Exhibit 2 which purported to be a Ramada Inn registration folio for the dates 30 and 31 July 1972. This assignment is without merit. In 1 Stansbury's N.C.Evidence, Brandis Revision, § 155, p. 523, it is said: "If the entries were made in the regular course of business, at or near the time of the transaction involved, and are authenticated by a witness who is familiar with them and the system under which they were made, they are admissible." In Dairy & Ice Cream Supply Co. v. Gastonia Ice Cream Co., 232 N.C. 684, 686, 61 S.E.2d 895, 897 (1950), the court, after stating the quoted rule, said: "This rule applies to original entries made in books of account in regular course by those engaged in business, when properly identified, though the witness may not have made the entries and may have had no personal knowledge of the transactions." We hold that sufficient foundation was laid for the introduction of the exhibit into evidence.
Defendants assign as error the denial of their motions for nonsuit. We hold that the evidence was more than sufficient to survive the motions and the assignment is without merit.
Defendants assign as error the action of the court in consolidating two other cases against defendant Cobb with the trial of the two cases at hand and then withdrawing those cases from consideration after the trial had begun. This assignment has merit.
The record reveals that in addition to the possession of heroin case, defendant Cobb was charged also in two indictments with possession of marijuana and methadone, *27 all on 31 July 1972. Prior to arraignment and in the absence of prospective jurors, defendants moved for severance of the four cases but the court denied the motions and allowed the State's motion to consolidate all cases for trial. Thereafter, defendants were arraigned not only on the heroin possession charges but defendant Cobb was arraigned also on the two indictments charging him with possession of marijuana and methadone. Defendants pleaded not guilty to all charges. While the first witness for the State was testifying, the court, in the absence of the jury, determined that since defendant Keitt was not connected with the marijuana and methadone cases, those cases should be tried separately. The court then modified its former ruling and denied the State's motion to try the heroin cases with the other two cases.
In State v. Williams, 279 N.C. 663, 185 S.E.2d 174 (1971), opinion by Chief Justice Bobbitt, the court reversed a long line of cases and held that for purposes of impeachment, a witness, including the defendant in a criminal case, may not be cross-examined as to whether he has been indicted or is under indictment for a criminal offense other than the offense for which he is on trial. However, the court further held that the circumstances of the particular case will determine whether a defendant will be awarded a new trial for having had to answer on cross-examination that he is currently under indictment for other crimes.
It appears to us that the principle laid down in Williams would apply also to the action of the court complained of here. We think the arraignment of a defendant in the presence of the jury on two untried charges, and then postponing the trial of those charges, could have an effect just as harmful, if not more so, as cross-examining a defendant with respect to untried charges. Nevertheless, under the circumstances of the cases at bar, we do not think defendants are entitled to a new trial. The evidence against defendants was strong and convincing, uncontradicted except for the presumption of innocence raised by the pleas of not guilty. In Fahy v. Connecticut, 375 U.S. 85, 84 S.Ct. 229, 11 L.Ed.2d 171 (1963), it was held that unless there is a reasonable possibility that the evidence complained of might have contributed to the conviction, its admission is harmless. We think the same rule would apply to the action complained of here and that although the action was erroneous, it was harmless beyond a reasonable doubt. State v. Taylor, 280 N.C. 273, 185 S.E.2d 677 (1972).
A careful consideration of the record impels us to conclude that defendants received a fair trial free from error sufficiently prejudicial to warrant a new trial.
No error.
MORRIS and PARKER, JJ., concur.
| {
"pile_set_name": "FreeLaw"
} |
292 B.R. 482 (2003)
In re PT-1 COMMUNICATIONS, INC., PT-1 Long Distance, Inc., and PT-1 Technologies, Inc., Debtors.
Nos. 01-12655-260, 01-12658 260, 01-12660-260.
United States Bankruptcy Court, E.D. New York.
April 24, 2003.
*483 *484 Angel & Frankel, P.C., By Bruce Frankel, Rochelle R. Weisburg, New York City, for Debtors.
The Commonwealth of Massachusetts Department of Revenue, By James L. O'Connor, Jr., Boston, MA, for Claimant the Commonwealth of Massachusetts Department of Revenue.
McCarter & English, LLP, By Lisa S. Bonsall, Patricia M. Zohn, Newark, NJ, for the Official Committee of Unsecured Creditors for Debtor PT-1 Communications, Inc.
DECISION ON PT-1 COMMUNICATIONS, INC.'S MOTION TO EXPUNGE CLAIM 195 OF THE COMMONWEALTH OF MASSACHUSETTS DEPARTMENT OF REVENUE
CONRAD B. DUBERSTEIN, Chief Judge.
PT-1 Communications, Inc., moved to expunge claim 195 of the Commonwealth of Massachusetts Department of Revenue (hereinafter "MDOR"), pursuant to 11 U.S.C. § 502(b)(9). For the reasons set forth herein, the motion is denied.
FACTS
On March 9, 2001, the telecommunication businesses of PT-1 Communications, *485 Inc., PT-1 Long Distance, Inc., and PT-1 Technologies, Inc. (hereinafter collectively the "Debtors") filed individual petitions for relief under chapter 11 of the Bankruptcy Code[1] (hereinafter the "Cases"). On March 13, 2001, the Court entered an order directing that the Cases be jointly administered.
On May 9, 2001, the Debtors filed combined Schedules of their assets and liabilities. None of the Debtors filed individual schedules. The caption on the Schedules sets forth the names of each of the three Debtors and does not provide the creditors with any information from which they could ascertain against which of the Debtors they have claims.
Schedule E consists of the names and addresses of unsecured priority creditors and lists MDOR as a creditor of PT-1 Long Distance, Inc., for approximately $90,000, for the calendar year 2000 including a period in 2001 for $10,491.
Schedule F, which contains the names and addresses of unsecured nonpriority creditors, lists MDOR for the exact amount as it is listed in Schedule E as an unsecured priority creditor of PT-1 Long Distance, Inc., for a period in 2001, namely for $10,491, but does not indicate the name of the debtor of which it is a creditor.
Thus, the Schedules do not indicate that MDOR is a creditor of PT-1 Communications, Inc.. Nevertheless, as stated in an affidavit submitted with its memorandum filed in opposition to the within motion, upon receiving notice of the filing of the Cases, MDOR investigated whether any taxes were owed by PT-1 Communications, Inc., and concluded that it owed no taxes to MDOR. (Miller Aff. ¶ 3.)
By order of this Court dated June 5, 2001, the bar date for filing proofs of claim in the Cases was set for August 31, 2001 (hereinafter the "Bar Date"). As indicated in the affidavit of service filed with this Court on July 6, 2001, by Debtors' attorneys, MDOR was sent notice of the aforementioned Bar Date, which MDOR does not contest receiving.
On June 21, 2001, MDOR filed claim 45 against PT-1 Long Distance, Inc., as an unsecured priority claim for $508,653.90 and as a general unsecured claim for $57,000, totaling $565,653.90. In MDOR's objection to the within motion to expunge claim 195, hereinafter described, it states that claim 45 relates to estimated sales tax liability for tax years 1999 and 2000. (Obj.¶¶ 19, 24.) In addition, the claim contains the following statement: "AUDIT IS BEING CONDUCTED, TAX AMOUNTS ARE NOT FINAL."
On May 1, 2002, the Debtors moved to expunge claim 45. MDOR objected to the motion and requested access to the books and records to determine the amount of sales tax owing. On May 30, 2002, upon MDOR's request, this Court directed Debtors' counsel to make available to MDOR the Debtors' books and records relative to MDOR's claims. Debtors' counsel complied with this Court's direction. While in the process of its examination, on or about June 7, 2002, after the Bar Date, MDOR became aware of taxable sales of prepaid phone cards by PT-1 Communications, Inc., when it was given access to a consolidated ledger of PT-1 Long Distance, Inc., and PT-1 Communications, Inc.. (Miller Aff. ¶ 14.)
On September 24, 2002, MDOR filed claim 195, amending claim 45, against PT-1 Communications, Inc./PT-1 Long Distance, Inc., as an unsecured priority claim for $2,398,899.08 and as a general unsecured claim for $579,004.86, totaling *486 $2,977,903.94. In MDOR's objection to the within motion to expunge, MDOR states that claim 195 relates to the sales tax liability, interest and penalties of PT-1 Communications, Inc., for tax years 1996 through 2001. (Obj.¶¶ 27-29.) Thereafter, PT-1 Communications, Inc., moved to expunge claim 195 as having been filed after the Bar Date.
MDOR argues that claim 195 amends the timely filed claim 45, and thus, should not be expunged. MDOR also argues that, in the event claim 195 is not found to amend claim 45, it should be allowed as a late filed claim on the basis of excusable neglect. Both the attorneys for the Debtors and the Official Committee of Unsecured Creditors oppose MDOR's contentions.
DISCUSSION
I. Post-Bar Date Amendment to Proof of Claim
In order for a proof of claim filed after the bar date to be deemed an amended claim, it must not assert a new claim. See In re Macmillan Inc., 186 B.R. 35, 49 (Bankr.S.D.N.Y.1995); 9 COLLIER ON BANKRUPTCY ¶ 3001.04 (Alan N. Resnick & Henry J. Sommer eds., 15th ed. rev.2002). In determining whether a purported amendment is really a new claim, the following two-pronged test is applied: (1) "[a] court should look first to whether there was timely assertion of a similar claim or demand evidencing an intention to hold the estate liable;" and (2) "[t]he court should also examine all of the facts of the particular case, and determine whether it would be equitable to allow the amendment." In re Black & Geddes, Inc., 58 B.R. 547, 553 (S.D.N.Y.1983). See In re Macmillan Inc., 186 B.R. at 49.
First, the similarity of the timely filed claim to the purported amendment is examined. See id. In this analysis, several courts have employed the same "conduct, transaction, or occurrence" standard set forth in Fed. R. Civ. P. 15(c)(2), made applicable by Fed. R. Bankr. P. 7015. See In re Drexel Burnham Lambert Group, Inc., 159 B.R. 420, 425 (S.D.N.Y.1993). In the context of proofs of claim, this standard is satisfied and an amendment may be made after the bar date has passed" `where the purpose is to cure a defect in the claim as originally filed, to describe the claim with greater particularity or to plead a new theory of recovery on the facts set forth in the original claim.'" In re Macmillan Inc., 186 B.R. at 49 (quoting In re W.T. Grant Co., 53 B.R. 417, 420 (Bankr.S.D.N.Y.1985)). See In re G.L. Miller & Co., Inc., 45 F.2d 115, 116 (2d Cir.1930).
Second, the court examines whether allowing the purported amendment would be equitable. See In re Macmillan Inc., 186 B.R. at 49; In re Black & Geddes, Inc., 58 B.R. at 553. The case In re Miss Glamour Coat Co., Inc., is often cited for the following enumeration of the equitable factors to be considered:
(1) whether the bankrupt and creditors relied upon the [claimant's] earlier proofs of claim or whether they had reason to know that subsequent proofs of claim would follow . . . [;] (2) whether the other creditors would receive a windfall to which they are not entitled on the merits by the court not allowing this amendment to the [claimant's] proof of claim [;] (3)whether the [claimant] intentionally or negligently delayed in filing the proof of claim . . . [;] (4) the justification, if any, for the failure of the [claimant] to file for a time extension for the submission of further proofs of claim . . .; and (5) whether or not there are any other considerations which should be taken into account in assuring a just and equitable result.
*487 In re Miss Glamour Coat Co., Inc., No. 79 Civ. 2605, 1980 WL 1668, at *5, 1980 U.S. Dist. LEXIS 14545, at *12-13 (S.D.N.Y. Oct.8, 1980) (footnote omitted) (citations omitted). The court in In re Macmillan Inc., similarly formulated the equitable factors to be weighed as follows:
(1) undue prejudice to the opposing party; (2) bad faith or dilatory behavior on the part of the claimant; (3) whether other creditors would receive a windfall were the amendment not allowed; (4) whether other claimants might be harmed or prejudiced; and (5) the justification for the inability to file the amended claim at the time the original claim was filed.
In re Macmillan Inc., 186 B.R. at 49.
It is clear that claim 195 is a new claim and not an amendment of the timely filed claim 45. Claim 45 was filed against PT-1 Long Distance, Inc., under its corresponding docket number. Claim 195 was filed against PT-1 Communications, Inc./PT-1 Long Distance, Inc., under the docket number for the PT-1 Communications, Inc., case. MDOR states, however, that claim 195 relates only to PT-1 Communications, Inc.. (Obj.¶¶ 26-29.) Thus, claims 45 and 195 pertain to two different debtors, namely PT-1 Long Distance, Inc., and PT-1 Communications, Inc., respectively. Inasmuch as claims 45 and 195 were filed against different debtors, it is abundantly clear that they are entirely different claims. Furthermore, claim 45 relates to the tax years 1999 and 2000 (Obj.¶¶ 19, 24), while claim 195 encompasses the tax years 1996 through 2001 (Obj.¶¶ 27-29) and is for an amount over five times larger than claim 45. Although bankruptcy courts are split on the issue, several courts have ruled that a purported amendment that asserts a debt for a new tax year is a new claim. See In re Sunwest Hotel Corp., No. 96-4187, 1998 WL 982905, at *8-9, 1998 U.S. Dist. LEXIS 21178, at *25-26 (D.Kan. Sept. 29, 1998); In re Baker, 129 B.R. 607, 608 (E.D.Mo.1991); In re Sage-Dey, Inc., 170 B.R. 46, 49 (Bankr.N.D.N.Y.1994). In addition, courts have also ruled that a proof of claim which purports to amend a timely filed claim should be reasonably within the amount of the timely filed claim. See In re AM Int'l, Inc., 67 B.R. 79, 82 (N.D.Ill.1986); In re Ltd. Gaming of Am., Inc., 213 B.R. 369, 375 (Bankr.N.D.Okla.1997); In re Manville Forest Prods. Corp., 89 B.R. 358, 375 (Bankr.S.D.N.Y.1988).
This Court is of the opinion that equity does not transform claim 195 into an amendment of the timely filed claim 45. MDOR's reliance on the statement that appears on claim 45 filed against PT-1 Long Distance, Inc. to the effect that the tax amounts set forth therein were not final because of an ongoing audit, is unavailing as an argument that PT-1 Communications, Inc., was put on notice of a future claim. At the very most, only PT-1 Long Distance, Inc., was put on notice of a future claim amendment by that statement.
II. Excusable Neglect
The court may deem an untimely claim allowable if the claimant establishes excusable neglect. See Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P'ship, 507 U.S. 380, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993). Although MDOR submitted its excusable neglect argument as part of its objection to the within motion and did not follow the technical requirement of submitting it on motion, see Fed. R. Bankr. P. 9006(b)(1), efficiency dictates that this Court evaluate it by reason of the provisions of 11 U.S.C. § 105(a).
Whether a claimant's neglect is excusable is an equitable determination, which takes into account all of the relevant *488 circumstances. See Pioneer Inv. Servs. Co., 507 U.S. at 395, 113 S.Ct. 1489. "These include, . . . the danger of prejudice to the debtor, the length of the delay and its potential impact on judicial proceedings, the reason for the delay, including whether it was within the reasonable control of the movant, and whether the movant acted in good faith." Id. See Milligan v. Tupperware Worldwide, Inc., Nos. 97-7445, 97-7773, 1998 WL 538116, at *1-2, 1998 U.S.App. LEXIS 20642, at *4 (2d Cir. Mar.13, 1998). Excusable neglect encompasses situations "caused by inadvertence, mistake, or carelessness, as well as by intervening circumstances beyond the party's control." Pioneer Inv. Servs. Co., 507 U.S. at 388, 113 S.Ct. 1489. This Court also notes that "[equitable powers] have been invoked to the end that fraud will not prevail, that substance will not give way to form, that technical considerations will not prevent substantial justice from being done." Pepper v. Litton, 308 U.S. 295, 305, 60 S.Ct. 238, 84 L.Ed. 281 (1939).
Prior to weighing the equitable factors involved in determining excusable neglect, a brief exposition of Massachusetts law is necessary. All persons doing business in Massachusetts as a vendor are required to register as such with MDOR. See Mass. Gen. Laws ch. 64H, § 7(a) (West, WESTLAW through ch. 10 of the 2003 1st Annual Sess.). A vendor is defined as a "person selling tangible personal property or services of a kind the gross receipts from the retail sale of which are required to be included in the measure of the tax imposed by this chapter." Mass. Gen. Laws ch. 64H, § 1 (West, WESTLAW through ch. 10 of the 2003 1st Annual Sess.). It is "presumed that all gross receipts of a vendor . . . from sales [are] subject to tax until the contrary is established." Mass. Gen. Laws ch. 64H, § 8(a) (West, WESTLAW through ch. 10 of the 2003 1st Annual Sess.). Every vendor must collect and pay to MDOR sales and use taxes. See Mass. Gen. Laws ch. 64H, §§ 2, 3 (West, WESTLAW through ch. 10 of the 2003 1st Annual Sess.); Mass. Gen. Laws ch. 64I, §§ 2, 4 (West, WESTLAW through ch. 10 of the 2003 1st Annual Sess.). In addition, every vendor subject to sales or use taxes pursuant to Mass. Gen. Laws ch. 64H or 64I must file a tax return with MDOR. See Mass. Gen. Laws ch. 62C, § 16(h), (i) (West, WESTLAW through ch. 10 of the 2003 1st Annual Sess.). Inasmuch as PT-1 Communications, Inc., never registered as a vendor or filed tax returns with MDOR, MDOR concluded that PT-1 Communications, Inc., owed no taxes to it. (Miller Aff. ¶ 3.) Debtors' attorneys dispute MDOR's contention that PT-1 Communications, Inc., was required to register as a vendor or to file tax returns with MDOR.
Assuming arguendo that Massachusetts law dictates that PT-1 Communications, Inc., has tax liability, Debtors' attorneys argue that MDOR should have filed a protective claim prior to the Bar Date. In furtherance of this argument, Debtors' attorneys point out that PT-1 Communications, Inc., was registered with the Commonwealth of Massachusetts as a foreign telecommunications corporation doing business in Massachusetts and filed annual reports with the Department of Telecommunications & Energy of Massachusetts. It would be unreasonable, however, to expect MDOR to divine from those annual reports that taxes were due to it from PT-1 Communications, Inc..[2] In addition, it *489 would be unduly burdensome and impractical to require taxing authorities to file protective claims in pursuit of such potential phantasms of liability. See In re Sitzberger, 65 B.R. 256, 260 (Bankr.S.D.Cal.1986) (agreeing with IRS, which was listed in the debtor's schedules in an unknown amount for the tax year in dispute, that filing a protective claim should not be required where the IRS was given no reason to believe that there was any tax liability until the debtor's tax return for that year was filed, which was after the bar date).
In this case, the equities tip in favor of allowing MDOR's claim 195, subject and without prejudice to PT-1 Communications, Inc.'s right to move to reduce or to expunge it as the facts may warrant. Although conscious disregard of the bar date is not excusable neglect, see In re Mahoney Hawkes, LLP, 272 B.R. 19, 20 (1st Cir. BAP 2002); In re SC Corp., 265 B.R. 660, 662 (Bankr.D.Conn.2001); In re D.A. Elia Constr. Corp., 246 B.R. 164, 170 (Bankr.W.D.N.Y.2000)[3], MDOR had no reason on the basis of the facts known to it prior to the Bar Date to conclude that it had a claim against PT-1 Communications, Inc.. MDOR first became aware of its claim after the Bar Date and within about three and a half months of discovering the alleged tax liability of PT-1 Communications, Inc., MDOR filed claim 195.[4]See In re Sitzberger, 65 B.R. at 260 (noting IRS's expediency in filing its late claim within about two months of becoming aware of debtor's tax liability). Although MDOR, upon discovering the tax liability, should have made a motion, pursuant to Fed. R. Bankr. P. 9006(b)(1), for allowance to file a late claim instead of attempting to amend its claim against another debtor, this alone does not demonstrate bad faith on MDOR's part. Debtors' attorneys are still in the process of objecting to claims, and "[a]n amended plan and disclosure statement may be [sic] need to be filed to deal with a potentially changed playing field." (Notice of Hr'g at 5.) Thus, the danger of prejudice to PT-1 Communications, Inc., and the potential impact on these judicial *490 proceedings of allowing MDOR to file claim 195 late are outweighed by the reason for MDOR's delay, the length of the delay and MDOR's good faith.
As already noted above, the Debtors' attorneys may still file objections to claim 195 based on the merits. In that regard, this Court's attention has been called to MDOR's Directive 96-1, which specifically addresses the tax liability of a telecommunications provider selling prepaid calling cards. Mass. Dep't of Revenue Directive 96-1 (May 6, 1996), available at http://www.dor.state.ma. us/rul_reg/dir/ dir_96_1.html. Directive 96-1 belies the argument of Debtors' attorneys that PT-1 Communications, Inc., is not liable for any taxes to MDOR because it sold its prepaid calling cards in Massachusetts through distributors. As stated in Directive 96-1, "the telecommunications provider [not the retail vendor who sells the calling cards to retail customers and through whom the calling cards may be marketed] must pay sales tax on cards purchased in Massachusetts and use tax on cards which are for use, storage or consumption in Massachusetts." Id. In addition, the argument by Debtors' attorneys that PT-1 Communications, Inc., is not a vendor because it has no place of business in Massachusetts is undercut by the Regulations for the Massachusetts Code, which detail how the a vendor's registration should be displayed by "an out-of-state vendor who is without a place of business in Massachusetts." 830 C.M.R. § 62C.67.1(3)(g) (West, WESTLAW through Jan. 17, 2003, Register # 965). The Regulations for the Massachusetts Code also provide the circumstances under which a sale of telecommunications services is deemed to take place in Massachusetts. 830 C.M.R. 64H.1.6(4)(a) (West, WESTLAW through Jan. 17, 2003, Register # 965).
CONCLUSION
1. This Court has jurisdiction over the instant matter pursuant to 11 U.S.C. § 105(a), 501, 502 & 503 and 28 U.S.C. §§ 157(a), (b)(2)(B) & 1334 and the Standing Order of Referral of Cases to Bankruptcy Judges for the Eastern District of New York, dated August 28, 1986.
2. The motion of PT-1 Communications, Inc., to expunge MDOR's claim 195 is denied.
3. MDOR is directed to settle an Order in conformity with this decision.
NOTES
[1] Title 11 of the United States Code.
[2] Furthermore, the tax manager for PT-1 Communications, Inc., sent a letter dated March 30, 1998, to the Department of Public Utilities of Massachusetts (the former name of the Department of Telecommunications & Energy) regarding its 1997 annual report, stating that "[PT-1 Communications, Inc.] is not directly conducting business in [Massachusetts]." (PT-1 Communications, Inc.'s Resp. to Obj. Ex. G.)
[3] These cases are distinguishable from the one at bar. In In re Mahoney Hawkes, LLP, the claimant, which was listed as a creditor, did not want to file a claim for malpractice and conflict of interest against the debtor, with whom the creditor had a long-standing relationship, until it became clear that the creditor would be unable to collect from other sources. See In re Mahoney Hawkes, LLP, 272 B.R. at 20. In In re SC Corp., MDOR, which was also involved in that case, risked not filing a claim based on the debtor's prior history of seeking extensions to file tax returns and paying the amounts owed in full. See In re SC Corp., 265 B.R. at 662. In In re D.A. Elia Constr. Corp., the court found that the claimants, which were listed as creditors on the debtor's schedules, were using the fact that the bar date was "buried" in a notice as a pretext because a prior notice made clear that claims needed to be filed, and the claimants did not avail themselves of court hearings, one of which confirmed the plan. See In re D.A. Elia Constr. Corp., 246 B.R. at 166, 171.
[4] Debtors' attorneys cite In re New York Trap Rock Corp., 153 B.R. 648 (Bankr.S.D.N.Y.1993), as "theoretically" imposing a stricter standard when a creditor files a late claim because of no actual knowledge of the claim until after the bar date. (PT-1 Communications, Inc.'s Resp. to Obj. at 17.) The court in In re New York Trap Rock Corp., however, applied the excusable neglect standard laid out in Pioneer Investment Services Co. and concluded that there was no excusable neglect where the creditor delayed filing its claim for about nine months after receiving actual knowledge of it; a disruptive effect would be caused by the delay in liquidating the claim, which was dependent on another lawsuit; and the creditor exhibited questionable good faith. See In re New York Trap Rock Corp., 153 B.R. at 652-653.
| {
"pile_set_name": "FreeLaw"
} |
933 F.2d 1019
Unpublished DispositionNOTICE: Tenth Circuit Rule 36.3 states that unpublished opinions and orders and judgments have no precedential value and shall not be cited except for purposes of establishing the doctrines of the law of the case, res judicata, or collateral estoppel.Olayiwola OGUNBIYI, Petitioner,v.IMMIGRATION & NATURALIZATION SERVICE, (UNITED STATES ofAmerica), Respondent.
No. 88-1457.
United States Court of Appeals, Tenth Circuit.
May 28, 1991.
Before LOGAN and EBEL, Circuit Judges, and COOK,* Chief Judge.
ORDER AND JUDGMENT**
LOGAN, Circuit Judge.
1
After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this matter. See Fed.R.App.P. 34(a); 10th Cir.R. 34.1.9. The case is therefore ordered submitted without oral argument.
2
By order filed March 22, 1991, we deferred action on petitioner's pending motion to reopen proceedings on his petition for review and accompanying motion for stay of deportation until a final decision was rendered by the Board of Immigration Appeals (BIA) on related motions filed by petitioner with that tribunal. The BIA has since issued an order denying the requested relief.
3
Upon consideration of the materials submitted by the parties, we concur in the BIA's analysis of the merits of petitioner's legal position and, accordingly, deny his pending motions for substantially the reasons expressed by the BIA.
4
The BIA's disposition of petitioner's deportation status is AFFIRMED, petitioner's pending motions are DENIED and our review over this proceeding is now concluded.
*
Honorable H. Dale Cook, Chief Judge, United States District Court for the Northern District of Oklahoma, sitting by designation
**
This order and judgment has no precedential value and shall not be cited, or used by any court within the Tenth Circuit, except for purposes of establishing the doctrines of the law of the case, res judicata, or collateral estoppel. 10th Cir.R. 36.3
| {
"pile_set_name": "FreeLaw"
} |
16 F.3d 406
U.S.v.Miller (George)
NO. 933161
United States Court of Appeals,Third Circuit.
Dec 02, 1993
Appeal From: W.D.Pa.,
Smith, J.
1
AFFIRMED.
| {
"pile_set_name": "FreeLaw"
} |
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-19-00518-CR
David Wayne Ford, Appellant
v.
The State of Texas, Appellee
FROM THE 424TH DISTRICT COURT OF BLANCO COUNTY
NO. CR01691, THE HONORABLE EVAN C. STUBBS, JUDGE PRESIDING
MEMORANDUM OPINION
Appellant David Wayne Ford, who has not yet been finally sentenced, has filed a
notice of appeal of the trial court’s orders denying multiple pretrial motions filed by Ford,
representing himself pro se. It appears from his notice of appeal that Ford seeks to appeal the
trial court’s denial of two motions to suppress evidence, a motion to quash, a motion to dismiss
for “the State’s failure to obtain requested Brady material,” and a “motion to consider Brady
evidence.” We do not have jurisdiction over this interlocutory appeal.
In Texas, appeals in a criminal case are permitted only when they are specifically
authorized by statute. State ex rel. Lykos v. Fine, 330 S.W.3d 904, 915 (Tex. Crim. App. 2011);
see Bayless v. State, 91 S.W.3d 801, 805 (Tex. Crim. App. 2002) (“[A] defendant’s right of
appeal is a statutorily created right.”). The standard for determining whether an appellate court
has jurisdiction to hear and determine a case “is not whether the appeal is precluded by law, but
whether the appeal is authorized by law.” Blanton v. State, 369 S.W.3d 894, 902 (Tex. Crim.
App. 2012) (quoting Abbott v. State, 271 S.W.3d 694, 696-97 (Tex. Crim. App. 2008)); State
ex rel. Lykos, 330 S.W.3d at 915. Thus, a court of appeals does not have jurisdiction to review
interlocutory orders unless that jurisdiction has been expressly granted by law. Ragston v. State,
424 S.W.3d 49, 52 (Tex. Crim. App. 2014). No such grant exists for an interlocutory appeal of
an order denying a pretrial motion to suppress or any of the other motions that are the subject of
this appeal.1 See Money Store, L.P. v. State, No. 03-17-00675-CR, 2018 WL 1004477, (Tex.
App.—Austin Feb. 22, 2018, no pet.) (mem. op., not designated for publication) (explaining that
no statute or rule allows defendant to appeal interlocutory order denying motion to quash
information); Dahlem v. State, 322 S.W.3d 685, 690-91 (Tex. App.—Fort Worth 2010, pet. ref’d)
(explaining that no statute or rule allows defendant to appeal interlocutory order denying motion
to suppress); see also Jenkins v. State, No. 03-13-00632-CR, 2013 WL 5966169, at *1 (Tex.
App.—Austin Oct. 25, 2013, no pet.) (mem. op., not designated for publication) (concluding that
court lacked jurisdiction because denial of defendant’s motion to suppress evidence is not
immediately appealable).
This appeal is dismissed for want of jurisdiction.
__________________________________________
Chari L. Kelly, Justice
Before Justices Goodwin, Baker, and Kelly
Dismissed for Want of Jurisdiction
Filed: September 20, 2019
Do Not Publish
1
We note that the State is entitled to appeal an order granting a pretrial motion to
suppress evidence. See Tex. Code Crim. Proc. art. 44.01(a)(5). However, no such corresponding
provision entitles a defendant to appeal the denial of such a motion. See id. art. 44.02.
2
| {
"pile_set_name": "FreeLaw"
} |
701 A.2d 1055 (1997)
STATE of Vermont
v.
Christopher M. BERINI.
No. 96-549.
Supreme Court of Vermont.
July 28, 1997.
*1056 Before AMESTOY, C.J., and GIBSON, DOOLEY, MORSE and JOHNSON, JJ.
ENTRY ORDER
The State appeals an order of the Orange District Court suppressing defendant's refusal to submit to a breath test because he was not afforded an opportunity to consult with an attorney. We affirm.
Defendant was arrested for driving under the influence. The arresting officer informed defendant of his right to speak with an attorney before deciding whether to submit to a breath test. Defendant refused to provide a sample without the advice of an attorney. Despite numerous attempts, the officer was unable to contact defendant's lawyer or a public defender. After approximately one hour, the officer asked defendant to provide a sample, but defendant declined to submit without consulting an attorney. The officer concluded that this constituted a refusal.
Defendant moved to suppress the refusal on the ground that he was denied the opportunity to consult with counsel. Under the authority of State v. Garvey, 157 Vt. 105, 107, 595 A.2d 267, 268 (1991), the trial court granted the suppression motion. The State thereupon moved for permission to take an interlocutory appeal. V.R.A.P. 5(b). The court granted the motion.
Vermont's implied-consent statute gives a person from whom a breath test has been requested by a law enforcement officer a right to consult an attorney prior to deciding whether to take the test. State v. Fuller, 163 Vt. 523, 526, 660 A.2d 302, 304 (1995); 23 V.S.A. § 1202(c). In Garvey we held that a defendant's license may not be suspended where the "refusal is premised on the state's inability to provide him with a consultation with a lawyer before he was required to make up his mind whether to take the test." 157 Vt. at 106, 595 A.2d at 268. We specifically rejected the State's contention that the statute authorized the officer to record a refusal if, after thirty minutes, a lawyer could not be found. Id.
Garvey plainly controls in this case. Although the State invites the Court to reconsider and reverse Garvey, it offers no new evidence or persuasive rationale to demonstrate that the case was wrongly decided. While not slavish adherents to stare decisis, see Cooperative Fire Ins. Ass'n v. White Caps, Inc., ___ Vt. ___, ___, 694 A.2d 34, 35 (1997), we generally require more than mere disagreement to overturn a decision, particularly one of such recent vintage.
Affirmed.
GIBSON, Justice, dissenting.
I agree that this case is similar in all material respects to State v. Garvey, 157 Vt. 105, 595 A.2d 267 (1991). Nevertheless, because I believe the majority continues to misconstrue 23 V.S.A. § 1202(c), see id. at 107-08, 595 A.2d at 268-69 (Gibson, J., dissenting), I respectfully dissent.
In doing so, I note the Legislature recently acted to remove all doubt about the extent of a person's right to counsel prior to deciding whether to take an evidentiary DUI test. 1997, No. 56, § 2 ("The person must make a decision about whether or not to submit to the test or tests at the expiration of the 30 minutes regardless of whether a consultation took place.").
Accordingly, I would overrule Garvey and reverse the trial court decision. I am authorized to say that Chief Justice AMESTOY joins in this dissent.
| {
"pile_set_name": "FreeLaw"
} |
805 F.Supp. 919 (1992)
MUTUAL SERVICE CASUALTY INSURANCE COMPANY, Plaintiff,
v.
FRIT INDUSTRIES, INC., et. al., Defendants.
Civ. A. No. 92-T-306-S.
United States District Court, M.D. Alabama, S.D.
October 13, 1992.
*920 Clyde C. Owen, Montgomery, Ala., for plaintiff.
Robert A. Huffaker, Rushton, Stakely, Johnston & Garrett, Montgomery, Ala., and James Donald Cowan, Jr. and Jonathan Arthur Berkelhammer, Smith, Helms, Mulliss & Moore, Greensboro, N.C., for Frit Industries, Inc.
Les Hayes, III and James E. Williams, Melton, Espy, Williams & Hayes, Montgomery, Ala., for defendants Inter-Industry Ins. Co. Ltd., Insurco Int'l Ltd. and Agrichem Ins. Co. Ltd.
MEMORANDUM OPINION
MYRON H. THOMPSON, Chief Judge.
Plaintiff Mutual Service Casualty Insurance Company has brought this lawsuit under the Declaratory Judgment Act, 28 U.S.C.A. § 2201, to determine the rights and duties of all parties in relation to several insurance policies. The company has invoked the jurisdiction of the court pursuant to 28 U.S.C.A. § 1332 (diversity of citizenship). The defendants are Frit Industries, Inc., Inter-Industry Insurance Company, Ltd., Insurco International, Ltd., Agrichem Insurance Company, Ltd., First State Insurance Company, and Employers Insurance of Wausau. To resolve these same issues, Inter-Industry has filed an action for declaratory and injunctive relief in the High Court of Justice of the Isle of Man, and Insurco and Agrichem have brought a similar action in the Grand Court of the Cayman Islands. This cause is now before this court on motions filed by Frit Industries and Mutual Service requesting that this court enjoin these two foreign proceedings. For the reasons that follow, the court concludes that the motions should be granted in part and denied in part.
I. BACKGROUND
On March 5, 1992, Mutual Service filed the lawsuit against the defendants. Mutual Service, Inter-Industry, Insurco, Agrichem, First State, and Wausau have all issued insurance policies to Frit Industries. Mutual Service is seeking a determination of the duties of all of Frit Industries's insurers to defend and provide coverage to the company in three lawsuits pending against the company in North Carolina. Under an agreement with First State and Wausau, Mutual Service has contributed to the defense costs for two of the underlying lawsuits. Inter-Industry, Insurco, and Agrichem have denied coverage to Frit Industries under their policies. On May 13, Frit Industries filed a counterclaim against Mutual Service and cross-claims against Inter-Industry, Insurco, and Agrichem. Frit Industries contends that these three insurance companies have a duty to defend it in the three underlying lawsuits and to pay any judgment or settlement rendered against it.
Inter-Industry has its principal place of business and is incorporated in the Isle of Man, British Isles. On June 23, the insurance company filed an action for declaratory and injunctive relief in the High Court of Justice of the Isle of Man, naming Frit Industries and Mutual Service as defendants. Inter-Industry is asking the Isle of Man court to interpret the two policies it issued to Frit Industries and to determine whether it has a duty to defend Frit Industries in the underlying suits or to indemnify either Frit Industries or Mutual Service. Inter-Industry has also made two significant additional requests: first, an injunction prohibiting Mutual Service and Frit *921 Industries from proceeding further with their action for declaratory judgment before this court and, second, a declaration that all questions relating to Inter-Industry's duties be determined within the Isle of Man proceedings.
Insurco and Agrichem have their principal places of business and are incorporated in the Cayman Islands, British West Indies. On June 24, the two companies filed a lawsuit in the Grand Court of the Cayman Islands, again naming Frit Industries and Mutual Service as defendants. Insurco and Agrichem are seeking a declaratory judgment to determine their duties to Frit Industries under the insurance policies they issued to the company.
In their motions before this court, Frit Industries and Mutual Service ask this court to enjoin Inter-Industry, Insurco, and Agrichem from proceeding with their suits in the courts of the Isle of Man and the Cayman Islands.
II. DISCUSSION
Federal courts have the discretionary power to enjoin parties subject to their jurisdiction from pursuing parallel in personam litigation before a foreign tribunal. China Trade & Dev. v. M.V. Choong Yong, 837 F.2d 33, 35 (2nd Cir.1987); Laker Airways, Ltd. v. Sabena, Belgian World Airlines, 731 F.2d 909, 926 (D.C.Cir.1984); Seattle Totems Hockey Club, Inc. v. Nat'l Hockey League, 652 F.2d 852, 855 (9th Cir.1981), cert. denied, 457 U.S. 1105, 102 S.Ct. 2902, 73 L.Ed.2d 1313 (1982). Although there is no precise test to determine when such an injunction would be appropriate, two threshold conditions are generally required. First, the parties and issues in the foreign action are identical to the parties in the action before the enjoining court, and, second, the resolution of the case before the enjoining court will be dispositive of the action in the foreign court. See, e.g., China Trade, 837 F.2d at 36; Cargill, Inc. v. Hartford Accident and Indemnity Co., 531 F.Supp. 710, 715 (D.Minn.1982). Frit Industries and Mutual Service argue, and a number of courts have held, that, with a showing of these threshold conditions, an injunction against a parallel in personam foreign proceeding would be appropriate upon a simple further showing that the injunction would avoid delay, expense, and inconvenience and promote judicial economy, see, e.g., Seattle Totems Hockey Club, 652 F.2d at 856; Cargill, 531 F.Supp. at 715, or the injunction would prevent a race-to-judgment or avoid potentially inconsistent rulings that might result from separate adjudications. See, e.g., Seattle Totems Hockey Club, 652 F.2d at 856; American Home Assurance Co. v. Ins. Corp. of Ireland Ltd., 603 F.Supp. 636, 643 (S.D.N.Y.1984); Garpeg, Ltd. v. United States, 583 F.Supp. 789, 798 (S.D.N.Y. 1984). If this court agreed that these circumstances duplication of parties and issues supplemented by such evidence as that an injunction would avoid delay, expense, and inconvenience and promote judicial economy would alone support issuance of an injunction against a parallel in personam foreign proceeding, then Frit Industries and Mutual Service would be entitled to have their motions for injunctive relief granted in full; the record before the court fully establishes these circumstances.[1]
However, for several reasons, this court disagrees that the above showing is adequate for issuance of an injunction against a parallel in personam foreign proceeding. First, although duplication of issues and parties may be threshold conditions, they simply point out the obvious and are not effective and instructive standards by which a court could determine whether to issue an injunction against a foreign proceeding; a duplication of parties and issues will almost always be present whenever there are parallel in personam proceedings. Second, the additional showings that Frit Industries and Mutual Service would require judicial economy, race-tojudgment, *922 and potentially inconsistent judgments do not withstand close scrutiny. Concerns for judicial economy are, in the first instance, more properly considered in a motion for forum non conveniens. Laker Airways, 731 F.2d at 928. Assuming that the possibility of a race-to-judgment and potentially inconsistent judgments are real concerns, they would appear whenever there are parallel actions.[2] Moreover, there is little evidence that courts sacrifice procedural or substantive justice in a "race" to judgment, Laker Airways, 731 F.2d at 929, and, because once one court reaches a judgment in a matter, that judgment may be pled as res judicata in the other, Princess Lida of Thurn & Taxis v. Thompson, 305 U.S. 456, 466, 59 S.Ct. 275, 280, 83 L.Ed. 285 (1939); Hilton v. Guyot, 159 U.S. 113, 205-06, 16 S.Ct. 139, 159-60, 40 L.Ed. 95 (1895), the fear of inconsistent adjudications is baseless.[3]
Third, the power to enjoin foreign proceedings raises significant and substantial issues of international comity and sovereignty. Gau Shan Co., Ltd. v. Bankers Trust Co., 956 F.2d 1349, 1354-55 (6th Cir. 1992); China Trade, 837 F.2d at 35-36. Although such an injunction would operate against only the parties and not directly against the foreign court, it would nevertheless effectively restrict the jurisdiction of the foreign court. It would therefore cut off the right of an independent forum to exercise its power over matters subject to its jurisdiction. United States v. Davis, 767 F.2d 1025, 1038 (2nd Cir.1985); see also Peck v. Jenness, 48 U.S. (7 How.) 612, 625, 12 L.Ed. 841 (1849). Frit Industries and Mutual Service respond that, although this may be a concern in general, no sovereign interests are implicated in Insurco and Agrichem's action before the Grand Court of the Cayman Islands. Frit Industries and Mutual Service argue that, because Insurco's insurance license prohibits it from selling insurance that covers risks within the borders of the Cayman Islands, the Cayman Islands has no interest in the litigation and no need to interpret insurance policies that cover risks outside its borders. But the fact that Insurco cannot sell policies that cover risks within the Cayman Islands in no way affects the Cayman Islands's interest in the policies that Insurco does sell. The Cayman Islands licenses and regulates the insurance industry within its borders, and all of Insurco's policies are issued under Cayman Islands's law, regardless of what they cover. Therefore, the Cayman Islands has a significant interest in overseeing the policies sold by Insurco, a Cayman Islands corporation subject to Cayman *923 Islands's law and regulation, and this court must respect that interest. Frit Industries and Mutual Service's motions raise issues of international comity and sovereignty with regard to both the Cayman Islands and Isle of Man litigation.
Fourth and finally, it is a well established part of this country's jurisprudence that, when two sovereigns have concurrent in personam jurisdiction, one court will ordinarily not interfere with or try to restrain proceedings before the other. Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 817, 96 S.Ct. 1236, 1246, 47 L.Ed.2d 483 (1976); Donovan v. City of Dallas, 377 U.S. 408, 412, 84 S.Ct. 1579, 1582, 12 L.Ed.2d 409 (1964). "[W]here the judgment sought is strictly in personam, both the state court and the federal court, having concurrent jurisdiction, may proceed with the litigation at least until judgment is obtained in one of them which may be set up as res judicata in the other." Princess Lida of Thurn & Taxis v. Thompson, 305 U.S. 456, 466, 59 S.Ct. 275, 280, 83 L.Ed. 285 (1939).[4] This principle of comity, which limits the discretion of courts within our dual federal-state court system to interfere with concurrent proceedings, has often been applied to cases where one of the actions is in a foreign jurisdiction. Compagnie Des Bauxites de Guinea v. Ins. Co. of North America, 651 F.2d 877, 887 (3rd Cir.1981), aff'd on other grounds, 456 U.S. 694, 102 S.Ct. 2099, 72 L.Ed.2d 492 (1982). In fact, the policies of comity and mutual respect are even more compelling in the international context where an injunction would affect the exercise of jurisdiction in independent sovereign nations. Gau Shan Co., 956 F.2d at 1354-55; Laker Airways, 731 F.2d at 927-28 n. 52; Canadian Filters Ltd. v. Lear-Siegler, Inc., 412 F.2d 577, 578 (1st Cir.1969). For these reasons, injunctions restraining litigants from proceeding in courts of independent countries should be "used sparingly," United States v. Davis, 767 F.2d 1025, 1038 (2nd Cir. 1985), and granted "only with care and great restraint." Canadian Filters, 412 F.2d at 578.[5]
For the above reasons, this court rejects the argument that duplication of parties and issues, supplemented by some showing of judicial economy, race-to-judgment, or potentially inconsistent judgments, would justify an injunction against a parallel in personam foreign proceeding. Instead, other circumstances, sufficiently significant and substantial to outweigh the important principles of comity and mutual respect owed to concurrent foreign proceedings, must be present before a court may properly and wisely enjoin a foreign proceeding. Gau Shan Co., 956 F.2d at 1354-55; China Trade, 837 F.2d at 36; Sea Containers Ltd. v. Stena AB, 890 F.2d 1205, 1214 (D.C.Cir.1989); Laker Airways, 731 F.2d at 928; Compagnie Des Bauxites, 651 F.2d at 887; Black & Decker Corp. v. Sanyei America Corp., 650 F.Supp. 406 (N.D.Ill.1986). This court agrees with the District of Columbia Circuit that injunctions of foreign proceedings are appropriate when necessary to prevent a "miscarriage of justice." Laker Airways, 731 F.2d *924 at 927. These circumstances will most often exist, first, when the foreign court's action threatens the jurisdiction of the enjoining court or, second, when a party attempts to evade or frustrate a forum's important public policies by litigating in a foreign court. See Gau Shan Co., 956 F.2d at 1354-55; China Trade, 837 F.2d at 36; Laker Airways, 731 F.2d at 927.[6] The critical question for this court, therefore, is whether either or both of these additional circumstances exist with regard to the litigation in the courts of the Isle of Man and the Cayman Islands.
Important Public Policies. Although there is no clear-cut rule regarding what constitutes an enjoinable evasion of forum law and policy, the availability of slight advantages in the substantive or procedural law to be applied in the foreign court is not sufficient. Piper Aircraft Co. v. Reyno, 454 U.S. 235, 102 S.Ct. 252, 70 L.Ed.2d 419 (1981). An impermissible evasion is more likely to be found when a party attempts to avoid compliance with a statute of specific applicability in the domestic forum. Laker Airways, 731 F.2d at 931 n. 73. In this case, no federal or state statutes are involved, nor have any constitutional issues been raised. The case involves the interpretation of insurance policies to determine the scope of coverage.
The facts in this case are also not comparable to those in the former Fifth Circuit case of In re Unterweser Reederei, GMBH v. M/S Bremen, 428 F.2d 888 (1970), rev'd on other grounds sub nom. Bremen v. Zapata Offshore Co., 407 U.S. 1, 92 S.Ct. 1907, 32 L.Ed.2d 513 (1972). There, the appellate court upheld a lower court's injunction prohibiting foreign litigation to prevent evasion of the domestic court's public policies. If the foreign litigation had been allowed to proceed, the English courts would have enforced provisions of a contract that were contrary to domestic public policy and unenforceable in American courts. An injunction was thus justified to prevent "inequitable hardship" and frustration of the domestic court's policies regarding contracts. In re Unterweser Reederei, 428 F.2d at 896.[7] In this case in contrast, Frit Industries and Mutual Service have presented no evidence that either Inter-Industry, Insurco, or Agrichem is attempting to evade any important public policies of this forum by asking the foreign courts to interpret their insurance policies. Concerns for public policies do not warrant an injunction against the litigation in the courts of either the Isle of Man or the Cayman Islands.
Protecting Jurisdiction. Concerns regarding this court's continued jurisdiction do, however, warrant a limited injunction against Inter-Industry's suit in the High Court of the Isle of Man. The Isle of Man suit is in part an attempt to avoid the jurisdiction of this court. In addition to asking for a declaratory judgment, the insurance company has requested that the High Court of Justice of the Isle of Man issue an injunction prohibiting Frit Industries and Mutual Service from continuing with their claims for declaratory relief before this court. Inter-Industry's foreign litigation is therefore not entirely parallel to the proceeding before this court; it is instead an attempt to carve out exclusive jurisdiction over the action in the Isle of Man and to terminate the action before this court.
*925 This aspect of Inter-Industry's foreign litigation is analogous to the situation in Laker Airways. There, after the English Court of Appeal enjoined Laker's litigation of its claims against several British defendants in a United States court under United States law, the United States district court enjoined other defendants in the Laker Airways action from seeking similar injunctions from the English Court of Appeal. Notwithstanding its stringent standard for issuing anti-suit injunctions in foreign proceedings, the District of Columbia Circuit upheld the district court's injunction because it was necessary to preserve the court's jurisdiction. Without the injunction, the English proceedings would have been used to terminate the action before the American court. See also United States v. Davis, 767 F.2d 1025, 1038-39 (2nd Cir.1985) (upholding injunction of foreign proceeding to ensure complete adjudication of matter before the domestic court).
Because the Isle of Man litigation is being used in part to terminate the action before this court, an injunction is necessary to preserve this court's jurisdiction over this action as well as this court's ability to reach judgment on the matter before it. This case is one of those rare situations where comity must give way to a forum's need to protect its interests. Therefore, this court will enter an order affording relief to Frit Industries and Mutual Service. However, because "[c]omity teaches that the sweep of the injunction should be no broader than necessary to avoid the harm on which the injunction is predicated," Laker Airways, 731 F.2d at 933 n. 81, this court will limit its injunction to the following two restrictions: First, Inter-Industry shall be prohibited from pursuing its claim for injunctive relief from the Grand Court of Justice of the Isle of Man to the extent the insurance company seeks an injunction prohibiting Mutual Service and Frit Industries, or any other party to the litigation before this court, from proceeding further with their action for declaratory judgment before this court. Second, Inter-Industry shall be prohibited from pursuing a declaration to the effect that all questions relating to its duties must be determined within the Isle of Man proceedings; because such a declaration would be binding on all parties to the Isle of Man proceeding, it would pose the same threat as an injunction against further proceedings in this court.
Because Insurco and Agrichem's lawsuit in the Grand Court of the Cayman Islands does not contain a similar request for injunctive and declaratory relief, that litigation does not raise the same concerns, and an injunction against it, in whole or in part, is not warranted.
An appropriate order and injunction will be entered.
NOTES
[1] In response to Frit Industries and Mutual Service's motions, Inter-Industry, Insurco, and Agrichem have contested this court's in personam jurisdiction over them. In its order of August 28, 1992, the court rejected this contention, and these defendants have not presented any new evidence that would warrant a different conclusion today.
[2] Although not directly applicable in this case, the policies underlying the Anti-Injunction Act, 28 U.S.C.A. § 2283, are instructive. The act allows a federal court to issue an injunction of a state-court proceeding "where necessary in aid of its jurisdiction," but this exception is narrowly construed and cannot be invoked simply because of the prospect that a concurrent state proceeding might result in a judgment inconsistent with the federal court's decision. Atlantic Coast Line R.R. Co. v. Bhd. of Locomotive Eng'rs, 398 U.S. 281, 294-296, 90 S.Ct. 1739, 1747-48, 26 L.Ed.2d 234 (1970); see also Nat'l R.R. Passenger Corp. v. Florida, 929 F.2d 1532, 1535-36 (11th Cir.1991) (emphasizing that exceptions to Anti-Injunction Act be narrowly construed).
Similarly, the statute permits a federal court to issue an injunction to "protect or effectuate its judgments," but this exception does not "permit a federal court to enjoin state proceedings to protect a judgment that the federal court may make in the future but has not yet made. To allow this would run afoul of the rule that in personam actions involving the same controversy may proceed simultaneously in both state and federal courts." 17 C. Wright, A. Miller, & K. Graham, Federal Practice and Procedure § 4226 (1988).
[3] The rule favoring parallel proceedings in matters subject to concurrent jurisdiction applies primarily to requests for injunctions prior to a judgment on the merits. Where one court has already reached a decision, there is less justification for permitting relitigation by another court and a court may act to protect the integrity of its judgment. Laker Airways, 731 F.2d at 928 & n. 53; see, e.g., Bethell v. Peace, 441 F.2d 495 (5th Cir.1971) (enjoining foreign proceeding to prevent relitigation of issue decided on the merits).
Similarly, the Anti-Injunction Act provides that a federal court may grant an injunction of a state proceeding "to protect or effectuate its judgments." 28 U.S.C.A. § 2283. This "relitigation exception" was designed to permit a federal court to prevent state litigation of an issue that previously was presented to and decided by the federal court. Chick Kam Choo v. Exxon Corp., 486 U.S. 140, 146-47, 108 S.Ct. 1684, 1689-90, 100 L.Ed.2d 127 (1988).
[4] In contrast, in proceedings in rem or quasi in rem, usually the court assuming jurisdiction over the property first may exercise that jurisdiction to the exclusion of other courts. Colorado River, 424 U.S. at 818, 96 S.Ct. at 1246; Donovan, 377 U.S. at 412, 84 S.Ct. at 1582.
[5] The policies underlying the Anti-Injunction Act, 28 U.S.C.A. § 2283, are again instructive. They also indicate that federal courts should proceed with restraint in interfering with foreign courts. The act removes from federal courts the equitable power to grant injunctions to stay state-court proceedings "except as expressly authorized by Act of Congress or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments." 28 U.S.C.A. § 2283.
In contrast, where two courts are of the same sovereignty, considerations of judicial administration and conservation of judicial resources predominate and the general principle is to avoid duplicative litigation. Colorado River, 424 U.S. at 817, 96 S.Ct. at 1246; Kerotest Mfg. Co. v. C-O-Two Fire Equipment Co., 342 U.S. 180, 183-84, 72 S.Ct. 219, 221, 96 L.Ed. 200 (1952). When two competing lawsuits are filed in different federal district courts, a first-filed rule usually applies. The court first obtaining jurisdiction may enjoin the subsequent proceeding filed in another federal court. See, e.g., Adam v. Jacobs, 950 F.2d 89, 92 (2nd Cir.1991).
[6] The court is not suggesting that these two circumstances are the only ones. For example, the record does not support a fact situation in which one party seeks to defeat its opponent by financially bludgeoning it with duplicative foreign lawsuits and in which the opponent has no means by which to seek fair redress in foreign courts for such extremely vexatious and prohibitively burdensome conduct. This court, therefore, does not have to resolve whether that situation or a related one would warrant an injunction against such foreign litigation.
[7] This court disagrees with the Sixth Circuit's characterization of In re Unterweser Reederei as standing for the proposition that a duplication of parties and issues is alone sufficient to justify a foreign anti-suit injunction. Gau Shan Co., 956 F.2d at 1353. The basis for the former Fifth Circuit's holding was to avoid the "inequitable hardship" that would have resulted if the foreign proceeding were allowed to continue and contract provisions, which were contrary to American public policy because they would have barred complete recovery to one party, were enforced.
| {
"pile_set_name": "FreeLaw"
} |
968 So.2d 1028 (2007)
STATE
v.
PETERSON
No. 3D07-3014.
District Court of Appeal of Florida, Third District.
December 6, 2007.
Decision without published opinion. Vol.dismissed.
| {
"pile_set_name": "FreeLaw"
} |
913 F.Supp. 1031 (1996)
R.J. WILDNER CONTRACTING CO., INC., Plaintiff,
v.
OHIO TURNPIKE COMMISSION, Defendant.
No. 1:95CV0696.
United States District Court, N.D. Ohio, Eastern Division.
January 26, 1996.
*1032 *1033 *1034 Robert L. Tucker, Karen K. Grasso, Buckingham, Doolittle & Burroughs, Akron, OH, for R.J. Wildner Contracting Co. Inc.
Alan Neil Hirth, Thomas M. Wilson, Mark E. Leskovec, Climaco, Climaco, Seminatore, Lefkowitz & Garofoli, Cleveland, OH, for Ohio Turnpike Commission.
Hugh M. Stanley, Jr., Arter & Hadden, Cleveland, OH, for Hugh M. Stanley.
MEMORANDUM AND ORDER
ANN ALDRICH, District Judge.
R.J. Wildner Contracting Company brought this diversity action against the Ohio Turnpike Commission (OTC) for breach of contract, misrepresentation, recision of a contract, superior knowledge, unjust enrichment, and conversion. After the OTC answered the original complaint, Wildner asked for and received leave to file an amended complaint. The OTC has now moved pursuant to Fed.R.Civ.P. 12(b)(6) to dismiss each count of the amended complaint for failure to state a claim upon which relief can be granted. The OTC has also moved pursuant to Fed.R.Civ.P. 12(b)(1) to dismiss count V of the amended complaint for lack of subject matter jurisdiction. For the reasons which are stated below, the OTC's motion to dismiss is granted in part and denied in part.
I.
Wildner is a Pennsylvania corporation with its principal place of business in Johnstown, Pennsylvania. The OTC is an instrumentality of the state of Ohio, created by the state as a "body both corporate and politic" and with its principal place of business in Berea, Ohio. Ohio Rev.Code § 5537.02(A). In 1993, Wildner and OTC entered into a written contract for the stripping and recoating of the Huron River Bridge, located on the Ohio Turnpike in Erie County, Ohio. Wildner incorporated the contract into its amended complaint by reference. According to the contract, the
*1035 major work to be performed ... consists of the following: Removal of the existing lead based paint within engineered containment systems; disposal of hazardous and non-hazardous waste; employee and environmental protection; and recoating the existing bridge steel with an epoxy organic zinc-rich primer, a high build epoxy intermediate coat, and a urethane protective coat.
Contract, § SP 101.
The contract estimated that the bridge covered 205,300 square feet and that approximately 35 tons of hazardous and non-hazardous waste would be generated during the removal process. As it turned out, the bridge actually covered 213,149 square feet. More importantly, the existing paint was much thicker than Wildner anticipated ("abnormally thick" in the language of Wildner's complaint) and far more waste was generated. In addition, removing the thicker coating required a greater expenditure of labor, materials and time than Wildner had anticipated. Wildner alleges that the OTC had information in its files which indicated that the coating was abnormally thick, but did not share this information with Wildner.
Wildner sought compensation from the OTC for this work, which it characterized as "extra work," in accordance with §§ G-4.02 and G-4.03 of the contract. Section G-4.02 ("Increased or Decreased Quantities") provides:
The Chief Engineer may by written instructions to the Contractor order increases or decreases in the quantity of work as he may deem necessary or desirable to carry out the performance of the work. The quantity of any item in the original contract, except lump sum items, may be increased regardless of the percentage provided the total increase and cost of the item does not exceed $5,000, or the quantity may be increased not to exceed 25% provided the total increase of the cost of an item does not exceed $30,000. Such increases shall be designated on change orders as additions to the additional contract, and the unit price in the original contract shall apply.
Decreases may be made in the quantity of any item, except lump sum items, in the original contract or an extra work contract. Cancellation shall be authorized by change order and shall be designated as non-performed under the appropriate heading.
A contract for extra work is required if the addition to the quantity of any bid item is in excess of those described above or for work for which the contract does not contain a bid price.
If, during the course of the work, it becomes apparent that there will be an overrun or underrun in proposal quantities, for whatever reason, such overrun or underrun shall be governed by the procedures set forth in this section.
Section G-4.02 is explicitly amended by § SP 105 ("Increased or Decreased Quantities"), which adds the following language:
The Contractor's attention is directed to Item SP 525 Hazardous Waste Classification, Handling, and Disposal and Item SP 525 Non-Hazardous Waste Classification, Handling, and Disposal. The quantities shown for these items were determined from the best available information that existed during the preparation of the Plans and the estimates of quantities. In addition, at this time it is not known if the waste material will be hazardous or nonhazardous. Therefore, the Contractor is cautioned that the estimates of the quantities of these items (which estimate, as in other cases, is for bidding and bonding purposes only) are necessarily more speculative than estimates of some other types of work. Payment will be made in accordance with the unit price bid or when applicable, in accordance with the procedures set forth in G-4.02.
The next section, § G-4.03 ("Extra Work"), defines extra work and provides:
"Extra Work" is unforeseen work, including changes in any work which is made necessary by alteration of Plans, or necessary to complete the work or for other reasons, and which is ordered pursuant to Section G-4.02 or G-5.01. Extra work shall be performed by the Contractor as directed by the Engineer. In any situation deemed by the Engineer to be an emergency *1036 in which he shall consider such action necessary in order to save or protect life or property, he may require the performance of extra work by oral direction to the Contractor, which oral direction shall, however, be as promptly as possible confirmed in writing. In all other cases extra work shall be performed only after delivery to the Contractor of the Engineer's written order or direction therefor.
Section G-5.01 ("Authority of Engineer"), which § G-4.03 references, provides, in pertinent part:
The Engineer shall have authority to require the Contractor to perform extra work, including changes in work, whether or not the work to be changed shall already have been partly or completely performed; provided, however, that the exercise of such authority shall be limited to cases in which in the opinion of the Engineer it is necessary in order to provide for some unforeseen contingency arising in the course of the performance of the Contract, or shall otherwise be in furtherance of and subordinate to the carrying out of the objective of the Contract, and shall not be for the purpose of requiring the performance of new work, unrelated thereto.
When Wildner sought compensation under these provisions for the additional work performed, the OTC paid extra for the additional square footage, but not for removal of the "abnormally thick" existing paint. The OTC claimed that Wildner was responsible for determining how much work would be required to remove the paint before it bid on the contract under § G-2.04 ("Examination of Plans, Specifications, Special Provisions and Site of Work"). Section G-2.04 provides:
The Bidder is required to examine carefully the site of the Work, the Proposal, the Plans and the Specifications, and to read and fully acquaint himself with all other Contract Documents for the work contemplated. The Bidder, in submitting a Proposal, warrants that he has investigated and is acquainted with the conditions to be encountered in performing the Work, including the character, quality and quantities of work to be performed and materials to be furnished, the prevailing hourly wage rates for the area in which the Work is to be performed, and the requirements of the Contract. Submission of a Proposal shall be considered conclusive evidence that the Bidder has sufficient time to make such examination and did make such examinations and knows all conditions which will affect the Work, or has voluntarily assumed all risks incident to his failure to make such examination and obtain such knowledge.
It is the obligation of the Bidder to make his own investigation of subsurface conditions prior to submitting his Proposal. The Bidder may examine at the office of the Commission the records of all borings, test excavations, and other subsurface investigation, if any, made for design purposes of the Commission prior to the construction of the Work, the records of which may or may not be shown on the Plans. Said borings, test excavations, and other subsurface investigations are not warranted to show the actual subsurface conditions. The Contractor agrees that he will make no claims against the Commission, if in carrying out the Work he finds that the actual conditions encountered do not conform to those indicated by said borings, test excavations and other subsurface investigations.
The OTC did give Wildner an extension of time in which to complete performance, however.
As a condition of being awarded the contract, Wildner was required to deposit $75,760 in escrow with Society National Bank. On September 27, 1994, upon the completion of the project, Wildner requested the release of those funds. The OTC did not release the funds. When Wildner brought the original complaint in this case, the OTC filed a counterclaim for $30,000. Wildner then requested the release of the funds in excess of the $30,000 counterclaim, but the OTC again refused. After an exchange of correspondence, the OTC eventually agreed to the release of the funds in excess of $30,000.
II.
As an initial matter, the briefing on the OTC's motion to dismiss raised some questions *1037 as to this Court's jurisdiction over the entire dispute. "[F]ederal courts are courts of limited jurisdiction and have a continuing obligation to examine their subject matter jurisdiction throughout the pendency of every matter before them." Michigan Employment Security Commission v. Wolverine Radio Co., Inc. (In re Wolverine Radio Co.), 930 F.2d 1132, 1137 (6th Cir.1991), petition for cert. dismissed, 503 U.S. 978, 112 S.Ct. 1605, 118 L.Ed.2d 317 (1992). Accordingly, although neither party argues that this Court lacks jurisdiction over the entire dispute, this Court will begin by determining whether it has subject matter jurisdiction.
Wildner brought this complaint pursuant to this Court's diversity jurisdiction. For this Court to exercise diversity jurisdiction, the amount in controversy must exceed $50,000 and the parties must be citizens of different states. 28 U.S.C. § 1332(a)(1). According to the amended complaint, Wildner seeks over $50,000 in damages. Wildner is a citizen of Pennsylvania, where it is incorporated and has its principal place of business. 28 U.S.C. § 1332(c)(1). Similarly, the OTC is a citizen of Ohio, since it was created by the State of Ohio and has its principal place of business in Berea, Ohio.[1] Thus, the requirements for the exercise of diversity jurisdiction are satisfied.
The remaining issue is whether this Court lacks jurisdiction over this suit under Ohio law. The enabling statute for the OTC provides, in pertinent part:
[t]he Ohio Turnpike Commission may do any of the following:
* * * * * *
(4) Sue and be sued in its own name, plead and be impleaded, provided any actions against the commission shall be brought in the court of common pleas of the county in which the principal office of the commission is located, or in the court of common pleas of the county in which the cause of action arose if that county is located within this state.
Ohio Rev.Code § 5537.04(A). The OTC suggests, somewhat half-heartedly, that this language strictly limits the amenability of the OTC to suit, so that it is only subject to suit in the court of common pleas. If so, this Court would be prohibited from exercising jurisdiction over the OTC.
It is well-settled that states can cloak themselves and the entities they create in sovereign immunity. However, once a state elects to make a state-created entity subject to suit, the entity is subject to the provisions of Article III, § 2 of the United States Constitution and 28 U.S.C. § 1332(a)(1) giving the federal courts jurisdiction over claims between citizens of different states. Metaljan v. Memphis-Shelby County Airport Auth., 752 F.Supp. 834, 837 (W.D.Tenn.1990). The supremacy clause of the United States Constitution prevents the states from overriding those provisions by statute. Id. at 836-37 (citing Lincoln County v. Luning, 133 U.S. 529, 10 S.Ct. 363, 33 L.Ed. 766 (1890); Cowles v. Mercer County, 74 U.S. (7 Wall.) 118, 19 L.Ed. 86 (1869)). Here, Ohio chose to make the OTC liable to suit. It cannot by statute subsequently divest this Court of its diversity jurisdiction over the OTC. Therefore, this Court concludes that the dispute is appropriately before it.
III.
Before addressing the merits of the OTC's motion to dismiss, Wildner argues that the motion to dismiss should be denied *1038 because it was filed one day late. It is certainly within this Court's power to deny the motion as untimely filed. See Local Rule 8:8.1. However, this Court is not required to deny the motion simply because it is untimely. In this case, Wildner has identified no prejudice that it has suffered as a result of the untimely filing. Also, failure to consider the motion to dismiss would merely postpone the matter for another day at great expense to the parties, who would have to rebrief the same issues. Both the parties and the Court would be better served if the Court addressed the merits of the OTC's motion. See Fed.R.Civ.P. 1.
This Court certainly does not condone the OTC's tardiness and cautions the OTC that continued flaunting of Court-ordered deadlines may result in sanctions or a finding of contempt. In this case, however, the efficient administration of justice requires that the Court consider the merits of the motion, and so the OTC is hereby granted nunc pro tunc a one day extension of time in which to file its motion to dismiss.
IV.
This Court will now turn to the merits of the OTC's motion to dismiss. In ruling on a motion to dismiss, this Court must construe the complaint liberally and accept as true all factual allegations and inferences that may be drawn therefrom. Gazette v. City of Pontiac, 41 F.3d 1061, 1064 (6th Cir.1994). The motion should only be granted where it appears beyond doubt that the plaintiff can prove no set of facts which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957). In addition, while the complaint must give the defendant fair notice of what the plaintiff's claim is, it need not set down in detail all the particularities of the claim. Gazette, 41 F.3d at 1064 (citations omitted). Wildner's amended complaint has five counts; count II is made up of two alternative causes of action. Each count will be dealt with in turn.
A. Breach of Contract
Count I of the amended complaint alleges that the OTC breached its contract with Wildner for failing to compensate Wildner for the extra work Wildner performed and for the resulting delays. Wildner also alleges that the OTC breached its implied covenant of good faith and fair dealing. Finally, Wildner alleges that the OTC breached the contract by withholding the funds held in escrow.
It is not disputed that the parties entered into a binding and enforceable contract, or that Wildner has alleged a breach of that contract. However, the OTC asks this Court to dismiss count I as a matter of law. In Ohio,[2] if a contract is clear and unambiguous, its interpretation is a matter of law. Inland Refuse Transfer Co. v. Browning-Ferris Indus. of Ohio, Inc., 15 Ohio St.3d 321, 474 N.E.2d 271, 272 (1984) (per curiam). Thus, if the contract clearly and unambiguously precludes the alleged claim, dismissal is appropriate.
The OTC does not point to any provisions in the contract which would bar the claims for breach due to delay, for breach of the implied covenant of good faith and fair dealing, or for breach of the escrow agreement. Therefore, these claims will not be dismissed. The OTC does argue that the extra work claim is precluded by § G-2.04, which puts the responsibility on Wildner for examining the site and acquainting itself with the conditions to be encountered. In addition, § G-2.04 requires Wildner to voluntarily assume the risks incident to its failure to make that investigation.
Standing alone, § G-2.04 suggests that Wildner contractually assumed the risk that conditions at the bridge were not as allegedly represented in the contract and that extra work might be necessary. However, § G-2.04 must be read in pari materia with the rest of the contract. Other parts of the contract provide for compensation for an increase in the quantity of work and for extra work, which is defined in part as "unforeseen work." See §§ G-4.02, G-4.03, and SP 105. If § G-2.04 were read as broadly as the OTC *1039 urges, there could be no compensation for unforeseen work or increases in quantity; the contractor would be charged with having foreseen all the work to be done, or would be held to have assumed the risks of unforeseen work and of an increase in the size of the project. This argument proves too much, for it would render §§ G-4.02, G-4.03, and SP 105 nugatory. It is a fundamental rule of contract interpretation that the Court must give meaning to all of the provisions of the contract. Therefore, § G-2.04 cannot be read as broadly as the OTC urges and it does not preclude Wildner's claim.
Next, the OTC argues that the removal of the "abnormally thick" coating could not be extra work because it is required by the contract. The OTC points to § SP 101 which states that the "major work to be performed under the contract includes ... [r]emoval of the existing lead based paint." The OTC concludes that because the removal of paint is included within the work to be performed, it could not be extra work. Once again, this argument proves too much. Section SP 105 of the contract provides that the contractor will be compensated for the removal of additional quantities of hazardous waste, while § G-4.02 provides for compensation for increases in quantity. The OTC's reading of § SP 101 would make these sections meaningless. Therefore, § SP 101 cannot be read so broadly and does not preclude Wildner's claim.
Also unavailing is the OTC's reliance on S & M Constructors, Inc., v. City of Columbus, 70 Ohio St.2d 69, 434 N.E.2d 1349 (1982). In that case, the Ohio Supreme Court stated that "[w]here one agrees to do, for a fixed sum, a thing possible to be performed, he will not be excused or become entitled to additional compensation, because unforeseen difficulties are encountered." Id., 434 N.E.2d at 1354 (quotation omitted). The OTC argues that Wildner agreed to remove the "existing lead-based paint" for a fixed sum, and so should not be compensated for the unforeseen difficulties encountered. However, in S & M Constructors, the court specifically noted that the contract did not have a "changed conditions" clause. Id. 434 N.E.2d at 1352. In this case, however, the contract specifically provides for compensation for unforeseen work and so is distinguishable.
In addition, S & M Constructors involved a claim for changed subsurface conditions. Id. 434 N.E.2d at 1350-51. The contract in that case had language nearly identical to that in the second paragraph of § G-2.04 of the contract at issue in this case. That language deals with subsurface conditions and clearly provides that the "Contractor agrees that he will make no claim ... if in carrying out the work, he finds that the actual subsurface conditions encountered do not conform to those indicated by said borings, test excavations and other subsurface investigations." Id. 434 N.E.2d at 1352; Contract § G-2.04. The court in S & M Constructors specifically relied on that language. Id. 434 N.E.2d at 1352-53. However, this case does not involve subsurface conditions, so the second paragraph of § G-2.04 does not apply. Instead, the first paragraph of § G-2.04 applies. Unlike the second paragraph, the first paragraph does not explicitly bar a claim for a change in site conditions. The fact that subsurface claims are specifically barred while others are not indicates an intent not to bar other claims.[3]
Finally, the OTC argues that Wildner's claim for breach of contract must fail even under the terms of §§ G-4.02, G-4.03, and SP 105. The OTC maintains that these provisions require extra work to be ordered pursuant to either §§ G-4.02 or G-5.01. The OTC then argues that Wildner does not allege that the extra work was so ordered and that the complaint therefore fails to state a claim.
However, Wildner does allege that it was ordered to perform extra work. For example, in paragraph 17 of the amended complaint, Wildner alleges that it sought compensation "for the extra work it was required to perform." Again, in paragraph 28, Wildner alleges that the delay was the result of the "Turnpike Commission's direction to Wildner to perform extra work." Paragraph *1040 24 of the amended complaint also alleges that Wildner was ordered to perform extra work, albeit more obliquely. It states that Wildner is entitled to payment for extra work under § G-4.03. It also alleges that extra work is that "which is ordered pursuant to Sections G-4.02 or G-5.01." Amended Complaint ¶ 24 (quoting § G-4.03). The obvious logical conclusion from this paragraph is that the extra work was ordered, although it does not say so in as many words. Therefore, the amended complaint does allege that the extra work was ordered.
The OTC also points out that Wildner does not allege any written orders under § G-4.02 or specific instructions from the engineer under § G-5.01 requiring Wildner to perform extra work. However, the occurrence of a condition precedent does not have to be alleged with particularity; it is enough to aver it generally. Fed.R.Civ.P. 9(c). Moreover, Ohio recognizes the existence of constructive change orders, even where the contract requires written orders. Valentine Concrete v. Department of Admin. Serv., 62 Ohio Misc.2d 591, 609 N.E.2d 623, 629, 635-36 (Ct.Cl.1991); see also R.J. Au & Son v. N.E. Ohio Reg. Sewer Dist., 29 Ohio App.3d 284, 504 N.E.2d 1209, 1216-17 (1986). Thus, even if Wildner's failure to allege specific change orders precluded a claim based on those orders, Wildner could proceed on the theory that it had received constructive change orders from the OTC or the engineer.
In summary, § G-2.04 does not bar Wildner's extra work claim, and Wildner has sufficiently alleged that the extra work was ordered in accordance with §§ G-4.02 and G-5.01. Count I of the amended complaint therefore states a cause of action for breach of contract due to the OTC's failure to compensate Wildner for alleged extra work.
B. Misrepresentation/Recision
1. Misrepresentation
In the first part of count II of its amended complaint, Wildner alleges that the OTC negligently misrepresented to Wildner the quantity of wastes that would be generated and negligently misrepresented that it would make adjustments to the contract price if the quantity were inaccurate. The Ohio Supreme Court has described the elements of a claim for negligent misrepresentation as follows:
One who, in the course of his business, profession or employment, or in any other transaction in which he has a pecuniary interest, supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information.
Delman v. City of Cleveland Heights, 41 Ohio St.3d 1, 534 N.E.2d 835, 838 (1989) (quotation and citations omitted). In this case, Wildner clearly alleges that the OTC misrepresented the amount of waste and its willingness to pay, that Wildner justifiably relied on those representations, that the OTC failed to exercise reasonable care in representing the amount of waste, that this occurred during the course of a transaction in which the OTC had a pecuniary interest, and that Wildner was damaged thereby. Wildner therefore alleges all the requisite elements.
Notwithstanding the sufficiency of Wildner's pleading, the claim must be dismissed because, as a matter of law, Wildner could not have justifiably relied on the alleged misrepresentation of the quantity of waste. The contract specifically provides that all estimates are "approximate," § G-2.03, and that "the Contractor is cautioned that the estimates of the quantities of [hazardous and non-hazardous waste] ... are necessarily more speculative than estimates of some other types of work." § SP 105.[4] In a similar case, the Ohio Supreme Court ruled that reliance in the face of such language was unjustified. Delman, 534 N.E.2d at 837-38. In Delman, the plaintiffs relied on the point-of-sale inspection conducted by the city when they purchased their home. Id. The inspection report itself had a disclaimer, *1041 stating that the inspection did not guarantee that no violations existed. Id., 534 N.E.2d at 837. The court ruled that the disclaimer negated the plaintiffs' claim that they had justifiably relied on the city's inspection. Id. Similarly, the contract language in the current case operates as a disclaimer, putting Wildner on notice that it should not rely on the estimates of the quantity of waste. Thus, under Ohio law, Wildner could not justifiably rely on the estimates as a matter of law, and the claim must be dismissed.[5]
Wildner argues that it also justifiably relied upon the OTC's misrepresentation that it would pay extra if the estimate of waste was incorrect. This argument fails for two reasons. First, Wildner does not allege that the OTC acted without reasonable care in representing that it would pay extra if its estimate of the quantity of waste was wrong. Rather, Wildner only alleges that the OTC failed to exercise reasonable care in making its representations as to the quantity of waste. Amended Complaint, ¶ 56.
Second, even if Wildner did allege that the OTC had not exercised reasonable care in representing its willingness to pay, the OTC's promise to pay for the extra work would not give rise to a cause of action for negligent misrepresentation. A claim for negligent misrepresentation is based on false information, not a broken promise. See Delman, 534 N.E.2d at 838. Wildner alleges that the OTC broke its promise to pay; this gives rise to a claim for breach of contract, see Part IV.A., supra, but not a claim for negligent misrepresentation.
Finally, Wildner argues that it relied on the OTC's representation that the estimate was based on the best available information that existed at the time. However, Wildner's amended complaint completely fails to allege that Wildner justifiably relied on this representation. Thus, Wildner does not allege an essential element of the claim, and this claim must be dismissed.
2. Recision
In the alternative, count II of the amended complaint requests recision of the contract on the grounds of mutual mistake. In Ohio, a party is entitled to recision where "there is a mutual mistake as to a material part of the contract and where the complaining party is not negligent in failing to discover the mistake." Reilley v. Richards, 69 Ohio St.3d 352, 632 N.E.2d 507, 509 (1994). A mistake is material when it is a mistake as to a basic assumption on which the contract was made that has a material effect on the agreed exchange of performances. Id. (quotation omitted). The mutual mistake must also frustrate the intent of the parties. Id.
Here, Wildner alleges that the mistake in the estimate of the quantity of waste is a material mistake requiring recision. While Wildner alleges the necessary legal conclusions, the facts it alleges fail to state a claim. The mistake Wildner alleges (the error in the waste estimate) is not a material mistake as a matter of law. The contract specifically provides for errors in the estimate of the quantity of waste. §§ G-4.02, G-4.03 and SP 105. Thus, such errors must have been within the contemplation of the parties at the time of contracting. In other words, a basic assumption of the contract was that the estimates were approximate and that errors were anticipated, if not expected. Accordingly, the parties intended to, and did, take that into account. The mistake as to quantity could therefore not be a mistake as to a basic assumption that frustrated the parties' intent.
In response, Wildner relies on Deibel v. Kreiss, 38 Ohio Law Abs. 587, 50 N.E.2d 1000, 1002 (Ct.App.1943), in which the court ruled that an error as to quantity could provide the grounds for recision due to a material mistake. Deibel is easily distinguished from the present case, however. In Deibel, the contract at issue was an accord and satisfaction of a lawyer's contingency fee. Id., 50 N.E.2d at 1001. The parties' agreement *1042 was based on a mistake as to the amount of the recovery; the actual recovery was much greater than anticipated. Id., 50 N.E.2d at 1001-02. In Deibel, the parties assumed that the amount of the recovery had been established and did not provide for any errors in their contract. Here, in contrast, the parties specifically provided for errors in quantity. As stated above, a contingency specifically anticipated by the parties cannot be a mistake which frustrates the parties' intention.
In the alternative, Wildner argues that it states a claim for recision based on unilateral mistake. However, this argument runs into the same problem as does the claim for mutual mistake. An alleged mistake which the parties contemplated and for which they provided is simply not material as a matter of law. Therefore, count II of the amended complaint must be dismissed.
C. Superior Knowledge
Count III of Wildner's amended complaint is styled as a cause of action for "superior knowledge." Of course, superior knowledge is not a cause of action in and of itself; rather, it is a doctrine which supplies the basis for a claim of breach of contract against the government. See GAF Corp. v. United States, 932 F.2d 947, 949 (Fed.Cir. 1991), cert. denied, 502 U.S. 1071, 112 S.Ct. 965, 117 L.Ed.2d 131 (1992). Under the superior knowledge doctrine, the government can breach a contract by failing to disclose knowledge within its possession. Id.
The OTC argues that this count should be dismissed because Ohio does not recognize the superior knowledge doctrine. In fact, this Court found no Ohio cases which explicitly use the term "superior knowledge." However, Ohio courts have consistently recognized a cause of action for breach of contract where the government failed to provide necessary information that it had in its possession, or provided inaccurate information. See, e.g., Pitt Construction Co. v. City of Alliance, 12 F.2d 28, 30 (6th Cir.1926); Valentine Concrete, 609 N.E.2d at 629; Condon-Cunningham, Inc. v. Day, 22 Ohio Misc. 71, 258 N.E.2d 264, 268-69 (C.P.1969). These cases suggest that if the government is in a better position to obtain material information than the contractors, and fails to provide it, or provides inaccurate information, the failure to provide that information may be a breach of contract. Valentine Concrete, 609 N.E.2d at 629 (citing Pitt Construction, 12 F.2d 28). In this case, Wildner alleges that the OTC was in a better position to obtain material information regarding the thickness of the bridge coating (or in fact had this information), but failed to obtain it or communicate it to Wildner, knowing that Wildner lacked that information. Under Ohio law, this states a cause of action.
In response, the OTC argues that this claim is precluded by § G-2.04 of the contract, which requires Wildner to make all necessary investigations of the site and to assume the risks of not doing so. However, all of the Ohio courts which have considered this question have rejected defenses to similar claims based on similar or even identical exculpatory language in contracts. See Pitt Construction, 12 F.2d at 30 (similar language); Condon-Cunningham, 258 N.E.2d at 268-69 (identical language). Therefore, the exculpatory language of § G-2.04 does not bar this claim.
Finally, the OTC argues that Wildner fails to state a claim for relief for superior knowledge under federal law. See GAF, 932 F.2d at 949 (listing elements). This Court need not address this issue, because Wildner's claim is not a claim under federal law. Rather, it is a claim under analogous Ohio law. As a result, the only question is whether Wildner has alleged the requisite elements under Ohio law. As noted above, it has. Therefore, count III of the amended complaint states a cognizable claim and dismissal is not appropriate.[6]
*1043 D. Unjust Enrichment/Quantum Meruit
Wildner's fourth claim is for unjust enrichment, or quantum meruit. In order to maintain a cause of action for unjust enrichment under Ohio law, the plaintiff must allege: (1) a benefit conferred by a plaintiff upon a defendant; (2) knowledge by the defendant of the benefit; and (3) retention of the benefit by the defendant under circumstances where it would be unjust to do so without payment. Hambleton v. R.G. Barry Corp., 12 Ohio St.3d 179, 465 N.E.2d 1298, 1302 (1984) (per curiam) (quotation omitted). Here, Wildner alleges that it conferred the benefit of removing the "abnormally thick" coating from the bridge, and that the OTC has knowingly retained that benefit without paying for it.
However, in the absence of fraud or bad faith, Ohio law prohibits recovery under a theory of unjust enrichment where an express contract covers the same subject. Randolph v. New England Mutual Life Ins. Co., 526 F.2d 1383, 1387 (6th Cir.1975); Ullmann v. May, 147 Ohio St. 468, 72 N.E.2d 63, Syll. at ¶ 4 (1947). Any fraud or bad faith that negates the operation of this rule must occur in the formation of the contract. Eyerman v. Mary Kay Cosmetics, 967 F.2d 213, 222 (6th Cir.1992). Here, it is undisputed that Wildner and the OTC had an express contract pertaining to the same subject, i.e., the stripping and recoating of the bridge. Thus, Wildner must allege fraud or bad faith in the complaint to avoid dismissal.
In response, Wildner argues that the contract covers only the removal of paint of a normal thickness, and does not cover the removal of "abnormally thick" paint. Accordingly, it claims that its claim for unjust enrichment is outside the parameters of the contract and not barred by it. See Aultman Hosp. Ass'n v. Community Mut. Ins. Co., 46 Ohio St.3d 51, 544 N.E.2d 920, 924 (1989). However, as discussed above, the contract does cover the extra work. Either it provides for payment, as Wildner argues, or it provides that Wildner is not entitled to payment, as the OTC argues. In either case, it certainly contemplates and covers the issue of additional work. Therefore, the claim for unjust enrichment is not outside the parameters of the contract.
In the alternative, Wildner maintains that it has pled bad faith in the formation of the contract.[7] Wildner points to paragraphs 11-13, 64-67, and 72, in which Wildner alleges that the OTC withheld information it had regarding the thickness of the paint on the bridge from Wildner. While not specifically charging the OTC with bad faith, these paragraphs do allege that the OTC acted in bad faith in the formation of the contract. These allegations, if proved, would provide the basis for a quasi-contractual claim. The amended complaint therefore states a cause of action for unjust enrichment and OTC's motion to dismiss is denied as to count IV.
E. Conversion
Count V of the amended complaint alleges that the OTC converted Wildner's property when it failed to authorize the release of the excess escrow funds. Conversion is the wrongful control or exercise of dominion over property belonging to another inconsistent with or in denial of the rights of the owner. Tabar v. Charlie's Towing Service, Inc., 97 Ohio App.3d 423, 646 N.E.2d 1132, 1136 (1994), appeal not allowed, 70 Ohio St.3d 1428, 638 N.E.2d 89. To establish a claim for conversion under Ohio law, the plaintiff must demonstrate: (1) he or she demanded the return of the property from the possessor after the possessor exercised dominion or control over it; and (2) the possessor refused to deliver the property to its rightful owner. Id. In this case, it is undisputed that Wildner has alleged facts, which, if proved, would establish each of *1044 these elements with regard to the funds in escrow.
In response, the OTC asserts that this Court lacks jurisdiction over count V. The OTC claims that the escrow agreement was entered into pursuant to Ohio Rev.Code §§ 153.13 and 153.63. Ohio Rev.Code § 153.63(C) provides that "[w]hen the public owner ... and the contractor disagree as to the conditions under which money is to be paid under this section, the contractor shall file an action in the court of claims." The OTC argues that this statute provides the sole remedy for public escrow disputes and that this Court therefore lacks jurisdiction.
However, as Wildner points out, a different Ohio statute provides that the OTC may only be sued in the courts of common pleas. Ohio Rev.Code § 5537.04(A)(4). This apparent conflict between the statutes was resolved by the Ohio legislature in the creation of the OTC. The enabling statute provides that the OTC "is subject to all provisions of law generally applicable to state agencies which do not conflict with this chapter." Ohio Rev.Code § 5537.02(A) (emphasis added). Since Ohio Rev.Code § 153.63(C) conflicts with § 5537.04(A)(4), the former section does not apply to the OTC. Thus, the court of common pleas has jurisdiction over this dispute. As discussed above, this Court's diversity jurisdiction cannot be defeated by the grant of exclusive jurisdiction over the OTC to the court of common pleas. See Part II, supra. Thus, this Court has jurisdiction over the escrow dispute.
Next, the OTC argues in a footnote that the claim should be dismissed because Ohio does not recognize a conversion claim for a mere breach of contract. See Frisbie Co. v. City of East Cleveland, 98 Ohio St. 266, 120 N.E. 309, 312 (1918). While this may be true, that is not the case here. In Frisbie, the plaintiff had installed water mains pursuant to what turned out to be an unenforceable contract. Id., 120 N.E. at 309-11. The conversion claim was based solely on the city's failure to pay for the mains. Id., 120 N.E. at 312. In addition, the court in Frisbie held that the plaintiff had failed to establish the essential elements of conversion and had consented to the city's disposition of the property at issue. Id.
In the current case, however, Wildner's conversion claim is not based on the OTC's failure to pay; rather, Wildner is arguing that OTC converted the funds in escrow. A search by this Court turned up several Ohio cases in which it was assumed that plaintiffs were able to maintain actions for the conversion of escrow funds, including ones in which the escrow was established pursuant to a contract. See, e.g., Suveges v. James, 1995 WL 614980, *1 (Ohio Ct.App.1995) (claim valid but dismissed for lack of jurisdiction); Parmelee v. 34 South State Street, Inc., 1993 WL 407308, *1 *2 (Ohio Ct.App.1993) (dismissed on other grounds); Hoffman v. Gable, 1991 WL 260118, *4 (Ohio Ct.App.1991) (summary judgment granted because plaintiff had no interest in escrowed funds), jurisdictional mot. overruled, 63 Ohio St.3d 1464, 590 N.E.2d at 757 (1992). Furthermore, unlike the plaintiff in Frisbie, Wildner has pled the requisite elements and did not consent to the OTC's alleged conversion. Therefore, count V is properly before the Court and the OTC's motion to dismiss it is denied.
In the alternative, the OTC argues that Wildner's claim for punitive damages under count V is barred as a matter of law. Under Ohio law, punitive damages are not available against the state. Drain v. Kosydar, 54 Ohio St.2d 49, 374 N.E.2d 1253, 1257 (1978). The state is defined to include the departments, boards, offices, commissions, agencies, institutions, and other instrumentalities of the state. Ohio Rev.Code § 2743.01(A); Drain, 374 N.E.2d at 1257. As noted above, the OTC is subject to all provisions of law which do not conflict with its enabling act, and is defined as a commission and as an instrumentality of the state. Ohio Rev.Code § 5537.02(A). Therefore, punitive damages are not available against the OTC, and Wildner's claim for punitive damages is dismissed.[8]
*1045 V.
For the foregoing reasons, this Court concludes that count II of Wildner's amended complaint fails to state a claim for misrepresentation or recision and that the OTC is not subject to punitive damages. However, this Court also concludes that counts I, III, IV, and V do state claims upon which relief can be granted and that this Court has jurisdiction over these claims. Therefore, the OTC's motion to dismiss is granted as to count II and as to Wildner's claim for punitive damages under count V, but denied as to counts I, III, IV, and the remainder of count V.
IT IS SO ORDERED.
NOTES
[1] It is true that neither states nor their alter egos are citizens of any state for diversity purposes. Moor v. County of Alameda, 411 U.S. 693, 717-18, 93 S.Ct. 1785, 1799-1800, 36 L.Ed.2d 596 (1973); Ohio Bldg. Authority v. Xerox Corp., 819 F.Supp. 696, 697 (S.D.Ohio 1993). However, where an entity is not financially dependent on the state and has an independent existence, it is not an alter ego of the state. Hess v. Port Authority Trans-Hudson Corp., ___ U.S. ___, ___, 115 S.Ct. 394, 404, 130 L.Ed.2d 245 (1994); Hutsell v. Sayre, 5 F.3d 996, 999 (6th Cir.1993), cert. denied, ___ U.S. ___, 114 S.Ct. 1071, 127 L.Ed.2d 389 (1994). The Sixth Circuit long ago concluded that the OTC was not an alter ego of the state, and so is amenable to this Court's jurisdiction. See Harrison Construction Co. v. Ohio Turnpike Commission, 272 F.2d 337, 339-41 (6th Cir.1959). Similarly, the eleventh amendment does not bar suits against the OTC. Id.
[2] The parties agree that Ohio law governs this diversity action.
[3] This line of reasoning is often described by the phrase "expressio unius est exclusio alterius," or "the expression of one thing implies the exclusion of those not mentioned."
[4] The contract was incorporated by reference into the complaint, so that the contract is not extrinsic material for the purposes of this motion to dismiss.
[5] The fact that Wildner alleges that it did justifiably rely is irrelevant; this Court need not accept as true legal conclusions couched as factual allegations. Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 2944, 92 L.Ed.2d 209 (1986). Wildner's allegation that it justifiably relied is a legal conclusion, not a fact.
[6] The Court notes that there is an apparent incongruity between the dismissal of count II and the decision not to dismiss count III, since both are premised on the flow of information from the OTC to Wildner. The obvious answer is that the incongruity is in the law of Ohio, which this Court is bound to follow. For whatever reason, Ohio has chosen to require a finding of justifiable reliance for a claim of negligent misrepresentation, but not for a claim that a government agency failed to provide accurate information regarding a contract. In addition, the bases for the claims differ somewhat. Negligent misrepresentation is a tort claim based on false information provided by one who may or may not have a duty to provide that information, while superior knowledge is a breach of contract claim based on a duty to provide information. It is not unreasonable to have a higher standard of reliance when the defendant has no duty to provide the information.
[7] Fraud must be pled with particularity, Fed. R.Civ.P. 9(b), and Wildner does not claim that it pled fraud.
[8] This result may seem incongruous in light of this Court's earlier conclusion that the OTC is not the state of Ohio and is subject to suit in this Court. However, whether the OTC is subject to suit in this Court is a question of federal law, while whether the OTC is liable for punitive damages is governed by state law. Thus, the differing results are not logically inconsistent.
| {
"pile_set_name": "FreeLaw"
} |
99 F.3d 1153
Wilsonv.Parkway Dodge, Inc.*
NO. 95-6663
United States Court of Appeals,Eleventh Circuit.
Aug 08, 1996
1
Appeal From: N.D.Ala., No. 94-02185-CV-H-S
2
AFFIRMED.
*
Fed.R.App.P. 34(a); 11th Cir.R. 34-3
| {
"pile_set_name": "FreeLaw"
} |
811 N.E.2d 1225 (2004)
351 Ill.App.3d 223
285 Ill.Dec. 346
Annette COMPTON, Plaintiff-Appellant,
v.
Rodrigo UBILLUZ, Fred Nour, Central Du Page Hospital, and Central Du Page Health, Defendants (Neuro-Diagnostic Testing Centers, P.C., n/k/a Neuro-Spinal Center, Ltd., Defendant-Appellee).
No. 2-03-0383.
Appellate Court of Illinois, Second District.
June 23, 2004.
*1227 Edward J. Walsh Jr., Thomas L. Knight, Bradley N. Pollock, Walsh, Knippen, Knight & Diamond, Chtd., Wheaton, for Annette Compton.
David J. Cahill, Amy R. Miller, Swanson, Martin & Bell, Lisle, for Rodrigo Ubilluz.
Robert H. Smith, Scott R. Wolfe, Lowis & Gellen, Chicago, for Fred Nour.
Kevin J. Vedrine, Barbara M. Prohaska, Cunningham, Meyer & Vedrine, Wheaton, for Central DuPage Health and Central DuPage Hospital.
Brian J. Hickey, Jennifer A. Bollow, Douglas S. Strohm, Naperville, Richard A. Barrett Jr., Chicago, Cassiday, Schade & Gloor, for Neuro-Diagnostic Testing Centers, P.C.
Presiding Justice O'MALLEY delivered the opinion of the court:
Plaintiff, Annette Compton, appeals the order of the circuit court of Du Page County granting the motion of defendant, Neuro-Diagnostic Testing Centers, P.C. (n/k/a Neuro-Spinal Center, Ltd.), to dismiss plaintiff's claims against it pursuant to section 2-619(a)(5) of the Code of Civil Procedure (Code) (735 ILCS 5/2-619(a)(5) (West 2002)). Specifically, the trial court held that plaintiff's allegations against defendant in her second amended complaint did not relate back to her original complaint, pursuant to the current version of section 2-616(d) of the Code (735 ILCS 5/2-616(d) (West 2002)). Plaintiff appeals, contending that the previous version of section 2-616(d) applies to her second amended complaint and requires the reversal of the trial court's order. We reverse and remand.
The following facts are drawn from plaintiff's second amended complaint and related motions. In 1997, plaintiff came under the care of Dr. Rodrigo Ubilluz for her complaints of numbness and tingling in her hands and feet. Between August 27, 1997, and September 2, 1997, because of the progression of her symptoms, plaintiff was hospitalized at Central Du Page Hospital. While she was hospitalized at Central Du Page, Dr. Ubilluz ordered several blood tests, including a B-12/Folate test. A vitamin B-12 deficiency can cause the neurological symptoms that plaintiff was experiencing. On September 3, 1997, Central Du Page's lab reported the results of the B-12/Folate test to Dr. Ubilluz. The results of the B-12/Folate test revealed that plaintiff's serum B-12 levels were critically low. Dr. Ubilluz denied that he received the B-12/Folate test results from Central Du Page. Dr. Ubilluz did not properly diagnose plaintiff's condition or otherwise order or administer the proper treatment for it. Plaintiff visited Dr. Ubilluz eight times after her discharge from the hospital. At none of these visits did Dr. Ubilluz mention the B-12/Folate test results. Plaintiff last visited Dr. Ubilluz on January 13, 1998.
Plaintiff's condition continued to deteriorate to the point where she was unable to walk. On June 9, 1998, plaintiff consulted with Dr. Steven Lewis. Dr. Lewis diagnosed plaintiff's condition as a vitamin B-12 deficiency. Before July 14, 1998, plaintiff did not know how long she had experienced *1228 the vitamin B-12 deficiency, that Dr. Ubilluz had tested her for the deficiency, or that the result of the B-12/ Folate test had been abnormal.
On June 6, 2000, plaintiff filed her original complaint naming Dr. Ubilluz and others as defendants. Plaintiff alleged that Dr. Ubilluz failed to obtain the results of the B-12/Folate test and, thereafter, failed to properly treat plaintiff's condition. On June 14, 2000, Doreen Roman accepted a service of plaintiff's complaint on behalf of Dr. Ubilluz. The deposition testimony of Barbara Reggilio indicated that Roman was an employee of defendant and Ubilluz at the time she accepted service of plaintiff's complaint.
Plaintiff first became aware that Dr. Ubilluz was an agent or an apparent agent of defendant when Reggilio was deposed. Plaintiff's previous investigation had shown that Dr. Ubilluz was acting as an independent neurologist while he was treating plaintiff. Plaintiff's medical records, obtained from Dr. Ubilluz, did not reference defendant. Dr. Ubilluz also testified in his discovery deposition that he was an independent physician, as well as answered written interrogatories that he was an independent contractor. On May 14, 2002, after learning about the relationship between defendant and Dr. Ubilluz, plaintiff filed her second amended complaint, which for the first time included allegations against defendant.[1]
Defendant filed a motion to dismiss plaintiff's second amended complaint, arguing, pursuant to sections 13-212 and 2-619(a)(5) of the Code, that plaintiff had not filed it within the time provided by law. 735 ILCS 5/13-212, 2-619(a)(5) (West 2002). Defendant contended that the four-year statute of repose had expired before plaintiff filed her second amended complaint, and that this barred plaintiff from adding defendant as a party to this cause. Plaintiff raised the relation-back doctrine embodied in section 2-616(d) of the Code (735 ILCS 5/2-616(d) (West 2000)), as it existed before its January 1, 2002, amendment. Defendant argued that the amended version of the relation-back statute applied, not the version in force at the time plaintiff filed her original complaint. Defendant analyzed plaintiff's claim under the terms of the amended relation-back statute (735 ILCS 5/2-616(d) (West 2002)), and concluded that plaintiff did not satisfy the requirements enumerated therein. On October 31, 2001, the trial court held that the amended version of the relation-back statute applied to plaintiff's second amended complaint and dismissed with prejudice plaintiff's claim against defendant.
Plaintiff filed a motion to reconsider, contending that, under the terms of section 2-616(f) of the Code (735 ILCS 5/2-616(f) *1229 (West 2002)), the previous version of the relation-back statute (735 ILCS 5/2-616 (d) (West 2000)) applied to her claim. The trial court accepted plaintiff's reading of section 2-616(f), yet it nevertheless held that the amended version of the relation-back statute applied to plaintiff's claim. On February 26, 2003, the trial court denied plaintiff's motion to reconsider.
Plaintiff filed a second, emergency motion to reconsider, and on March 21, 2003, the trial court denied it. Plaintiff filed her timely notice of appeal on March 27, 2003.
On appeal, plaintiff contends that the trial court erred in dismissing her claim against defendant pursuant to section 2-619(a)(5) of the Code. Section 2-619(a)(5) of the Code allows for a cause of action to be dismissed if the action was not commenced within the time limited by law. Peetoom v. Swanson, 334 Ill.App.3d 523, 526, 268 Ill.Dec. 305, 778 N.E.2d 291 (2002). A section 2-619 motion to dismiss admits all well-pleaded facts and the reasonable inferences to be drawn from those facts; additionally, it admits the legal sufficiency of the complaint but asserts the existence of an affirmative matter to avoid or defeat the claim. Peetoom, 334 Ill.App.3d at 526, 268 Ill.Dec. 305, 778 N.E.2d 291. We review de novo the trial court's decision on a section 2-619 motion to dismiss. Peetoom, 334 Ill.App.3d at 526, 268 Ill.Dec. 305, 778 N.E.2d 291.
The first issue we must address is which version of the relation-back statute to apply. The amended version of section 2-616(d) (currently in force and applied by the trial court) provides:
"A cause of action against a person not originally named a defendant is not barred by lapse of time under any statute or contract prescribing or limiting the time within which an action may be brought or right asserted, if all the following terms and conditions are met: (1) the time prescribed or limited had not expired when the original action was commenced; (2) the person, within the time that the action might have been brought or the right asserted against him or her plus the time for service permitted under Supreme Court Rule 103(b) [(177 Ill.2d R. 103(b))], received such notice of the commencement of the action that the person will not be prejudiced in maintaining a defense on the merits and knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against him or her; and (3) it appears from the original and amended pleadings that the cause of action asserted in the amended pleading grew out of the same transaction or occurrence set up in the original pleading, even though the original pleading was defective in that it failed to allege the performance of some act or the existence of some fact or some other matter which is a necessary condition precedent to the right of recovery when the condition precedent has in fact been performed, and even though the person was not named originally as a defendant. For the purpose of preserving the cause of action under those conditions, an amendment adding the person as a defendant relates back to the date of the filing of the original pleading so amended." 735 ILCS 5/2-616(d) (West 2002).
The previous version of section 2-616(d) (before the January 1, 2002, amendment, and which plaintiff contends should have been applied) provided:
"A cause of action against a person not originally named a defendant is not barred by lapse of time under any statute or contract prescribing or limiting the time within which an action may be brought or right asserted, if all the following terms and conditions are met: (1) *1230 the time prescribed or limited had not expired when the original action was commenced; (2) failure to join the person as a defendant was inadvertent; (3) service of summons was in fact had upon the person, his or her agent or partner, as the nature of the defendant made appropriate, even though he or she was served in the wrong capacity or as agent of another, or upon a trustee who has title to but no power of management or control over real property constituting a trust of which the person is a beneficiary; (4) the person, within the time that the action might have been brought or the right asserted against him or her, knew that the original action was pending and that it grew out of a transaction or occurrence involving or concerning him or her; and (5) it appears from the original and amended pleadings that the cause of action asserted in the amended pleading grew out of the same transaction or occurrence set up in the original pleading, even though the original pleading was defective in that it failed to allege the performance of some act or the existence of some fact or some other matter which is a necessary condition precedent to the right of recovery when the condition precedent has in fact been performed, and even though the person was not named originally as a defendant. For the purpose of preserving the cause of action under those conditions, an amendment adding the person as a defendant relates back to the date of the filing of the original pleading so amended." 735 ILCS 5/2-616(d) (West 2000).
In order to determine which version of the relation-back statute applies in this case, we must first discern the legislative intent in amending the relation-back statute effective January 1, 2002. The legislature included a provision regarding the intended effect and scope of the amendment. Section 2-616(f) of the Code provides:
"The changes made by this amendatory Act of the 92nd General Assembly apply to all complaints filed on or after the effective date of this amendatory Act, and to complaints filed before the effective date of this amendatory Act if the limitation period has not ended before the effective date." 735 ILCS 5/2-616(f) (West 2002).
Before proceeding further in our analysis, we review the rules of statutory interpretation. The cardinal rule of statutory construction, to which all other rules are subordinate, is that a court should ascertain and give effect to the intent of the legislature. Bonaguro v. County Officers Electoral Board, 158 Ill.2d 391, 397, 199 Ill.Dec. 659, 634 N.E.2d 712 (1994). Legislative intent should be determined from the plain language of the statute, considering it as a whole and evaluating each provision in connection with every other section. Bonaguro, 158 Ill.2d at 397, 199 Ill.Dec. 659, 634 N.E.2d 712. In addition, in construing a statutory provision, no phrase or word is to be rendered meaningless or superfluous. People v. Peco, 345 Ill.App. 3d 724, 731, 281 Ill.Dec. 157, 803 N.E.2d 561 (2004). If the legislative intent can be discerned from the statute's plain language, then that intent is to be given effect without resorting to other interpretive aids. Balmoral Racing Club, Inc. v. Topinka, 334 Ill.App.3d 454, 459, 268 Ill.Dec. 253, 778 N.E.2d 239 (2002). If, however, the statute is ambiguous, meaning that it is capable of being understood by reasonably well-informed persons in two or more different senses, then the court must use other interpretive aids to resolve the ambiguity. Balmoral Racing Club, 334 Ill.App.3d at 459, 268 Ill.Dec. 253, 778 N.E.2d 239.
*1231 Turning to section 2-616(f), we first note that it contains two clauses. The first clause states that the amendment applies "to all complaints filed on or after the effective date" of the amendment, January 1, 2002. 735 ILCS 5/2-616(f) (West 2002). The second clause states that the amendment applies to complaints filed before January 1, 2002, "if the limitation period has not ended before the effective date." 735 ILCS 5/2-616 (f) (West 2002). In order to discern the intent of the legislature, we must consider both clauses of section 2-616(f) together. Defendant argues that the phrase "all complaints" means all complaints of any type, whether original or amended. We will first examine this intuitive construction.
We begin by noting that the only way in which the relation-back doctrine will come into play is if a plaintiff files an amended complaint outside of the time allowed by law. If the plaintiff does this, then the court must check to see if the elements of the applicable relation-back statute are satisfied. See Morton v. Madison County Nursing Home Auxiliary, 317 Ill.App.3d 561, 565, 251 Ill.Dec. 771, 741 N.E.2d 658 (2000). If "all complaints" includes amended complaints, then any amended complaint filed after the effective date of the amendment to section 2-616 of the Code will be analyzed according to the amended version. 735 ILCS 5/2-616(f) (West 2002) (first clause). If an amended complaint is filed before the effective date, then the amendment will apply to it only "if the limitation period has not ended before the effective date." 735 ILCS 5/2-616(f) (West 2002) (second clause). Under this literal reading, if the limitation period has not expired before the effective date, then the amended version of the statute would take effect before the effective date. This construction is absurd, because a statute cannot take effect before its effective date. Moreover, if an amended complaint is filed while time remains in the limitation period, it is, by definition, timely, and the relation-back statute need not be invoked. If an amended complaint is filed after the limitation period has expired, then it is untimely, unless the conditions of the relation-back statute are satisfied. If the amended complaint is filed outside the limitation period and before the effective date, then the unamended version of the statute will apply because it is before the effective date of the amendment. If the amended complaint is filed outside the limitation period and after the effective date, then the first clause applies, and the second clause need not be considered, because it was filed after the effective date. This analysis demonstrates that, if we read the phrase "all complaints" to include both original and amended complaints, then only the first clause of section 2-616(f) of the Code has effect, and the second clause of section 2-616(f) is surplusage because it can never be given effect the date of filing of the amended complaint alone determines which version of section 2-616 of the Code will apply. Because we cannot construe a statute so as to render any part of it meaningless or superfluous (Peco, 345 Ill.App.3d at 731, 281 Ill.Dec. 157, 803 N.E.2d 561), we must reject this construction.
We are left, then, with a counterintuitive construction of the phrase "all complaints" to mean original complaints and not amended complaints. This construction, however, gives effect to both clauses of section 2-616(f). Any original complaint filed after the effective date of the amended statute will come within the ambit of the amended section 2-616 should the relation-back doctrine subsequently be invoked. If an original complaint is filed before the effective date of the amendment to section 2-616, and if an amendment to that complaint is filed before the effective *1232 date of the amendment to section 2-616, then the unamended version of the statute will apply. If the amended complaint is filed after the effective date of the amendment to the statute, then the limitation period must be checked. If the limitation period of the original complaint has lapsed, then the unamended version of section 2-616 will apply; if there is still time remaining in the limitation period, then the amended version of section 2-616 will apply. We have demonstrated that construing "all complaints" to mean "original complaints" is the only construction that gives meaning and effect to both clauses in section 2-616(f). We hold, therefore, that the phrase "all complaints" refers only to original complaints in section 2-616(f) of the Code (735 ILCS 5/2-616(f) (West 2002)).
This determination does not end our inquiry. While the trial court appeared to accept this construction of section 2-616(f), it nevertheless held that the amended version of section 2-616 applied to plaintiff's second amended complaint, finding that the limitation period expired after the effective date, and equating the limitation period with the statute of repose. We must determine, therefore, whether the "limitation period" had ended before or after the effective date.
Section 2-616(f) of the Code does not define "limitation period." In addition, "limitation period" is not elsewhere defined in the Code. There are several plausible meanings that could attach to "limitation period." First, it could refer strictly to the statute of limitations. There is some support for this construction in section 2-616 itself. Subsections (b) and (d) state that an amended pleading will not be "barred by lapse of time under any statute or contract prescribing or limiting the time within which an action may be brought or right asserted." 735 ILCS 5/2-616 (b), (d) (West 2002); 735 ILCS 5/2-616 (b), (d) (West 2000). The phrase "prescribing or limiting" differentiates between a repose period ("prescribing") and a limitations period ("limiting"). Additionally, this court has differentiated between the "limitations period" and the "repose period" when analyzing whether an amended complaint related back to the original complaint in a medical malpractice action. Avakian v. Chulengarian, 328 Ill.App.3d 147, 152-53, 262 Ill.Dec. 663, 766 N.E.2d 283 (2002). Where terms used in a statute have acquired a settled meaning in judicial construction, the legislature will be presumed to know and adopt that construction unless it clearly indicates otherwise. Brugger v. Joseph Academy, Inc., 326 Ill.App.3d 328, 331-32, 260 Ill.Dec. 56, 760 N.E.2d 135 (2001). Thus, "limitation period" could plausibly be held to refer only to the statute of limitations for the action at hand.
Alternatively, "limitation period" reasonably could be held to encompass both the period of repose and the period of limitations. Section 2-616(f) does not make a specific reference to a statute of limitations for an action, but only to some generic "limitation period." 735 ILCS 5/2-616(f) (West 2002). This would seem to suggest that the court should determine whether there is time remaining in either the limitation period or the repose period. This, in fact, is what the trial court held below, and what defendant urges on appeal. In applying this construction, the trial court determined that there was time remaining in the repose period, and the trial court concluded that the limitation period had not expired before the effective date of the amendment to section 2-616.
Last, "limitation period" might have no fixed meaning, but indicate only that the trial court is required to see if, under the factual circumstances of each case, there is some time remaining in which an original complaint could be filed as of the effective *1233 date of the amendment to section 2-616. If there is time remaining, then the amended version of section 2-616 would apply to any amended complaint seeking to invoke the relation-back doctrine; if there is no time remaining in the limitation period as of the effective date of the amendment to section 2-616, then the previous version of section 2-616 would apply to a complaint seeking to invoke the relation-back doctrine.
Any of these three constructions is a plausible reading of the term "limitation period." Where a phrase in a statute is susceptible to two or more reasonable interpretations, the statute is ambiguous. Williams v. Staples, 208 Ill.2d 480, 489, 281 Ill.Dec. 524, 804 N.E.2d 489 (2004). Where a statute is ambiguous, the court may consider sources outside of the plain language of the statute to determine the legislative intent. Williams, 208 Ill.2d at 490, 281 Ill.Dec. 524, 804 N.E.2d 489. During debate over the amendment to section 2-616 of the Code, the following exchange occurred:
"[Representative] Hoffman: So, what you're saying [is] this [amendment] wouldn't impair anybody's rights and it wouldn't be a windfall in the court and it's not really a mandate on the court. What we're saying is, or I understand it's a bar association initiative to ensure that people can get the right individuals into the suit. Is that right?
[Representative] Mathias: That's absolutely correct." 92nd Ill. Gen. Assem., House Proceedings, May 1, 2001, at 7 (Statements of Representatives Hoffman and Mathias).
Representative Mathias also stated that the amendment was
"an initiative of the Illinois State Bar Association to make the Illinois Civil Procedure track federal civil procedure regarding misidentification of defendants in a civil case. The Bill basically allows, as I said before, it allows you to follow the same [procedures] as the federal rules in the event that someone was misidentified when he was originally served so long as he has knowledge of the action." 92nd Ill. Gen. Assem., House Proceedings, May 1, 2001, at 5 (Statements of Representative Mathias).
From this history, we can see that the legislative intent was simply to bring the Code into line with the Federal Rules of Civil Procedure. Further, the legislature did not intend the implementation of the amendment to impair or disrupt any parties' rights in cases pending at the time the amendment took effect. Though illuminating, this debate does not resolve what the legislature intended "limitation period" to mean.
We note that, historically, courts have liberally construed section 2-616 of the Code so that cases are decided on their merits rather than on a procedural technicality. Siebert v. Bleichman, 306 Ill.App.3d 841, 846, 239 Ill.Dec. 859, 715 N.E.2d 304 (1999). This policy, in conjunction with the legislative intent not to impair or disturb pending actions by the amendment to section 2-616, suggests that we should select a construction of "limitation period" that would lead to a resolution on the merits.
In our view, therefore, the last alternative, by which the limitation period is examined with regard to the factual circumstances of the case, fulfills the legislative intent. This construction allows as many cases as possible to be resolved on their merits. In addition, it balances the liberal construction of section 2-616 with the competing legislative intent of subjecting amended complaints to the more stringent relation-back requirements of the Federal Rules of Civil Procedure now embodied in the amended version of section 2-616. *1234 Therefore, we reject defendant's construction and hold that the trial court erred by considering "limitation period" to mean either the period defined in the statute of limitations or the period defined by an applicable statute of repose.
Applying the proper construction of "limitation period" to the facts of this case results in the application of the unamended version of section 2-616 to plaintiff's second amended complaint. Plaintiff filed a medical malpractice action against Dr. Ubilluz and others. The limitation period for filing such an action is defined by section 13-212(a) of the Code, which provides:
"Except as provided in Section 13-215 of [the Code (735 ILCS 5/13-215 (West 2000) (dealing with fraudulent concealment))], no action for damages for injury or death against any physician, dentist, registered nurse or hospital duly licensed under the laws of this State, whether based upon tort, or breach of contract, or otherwise, arising out of patient care shall be brought more than 2 years after the date on which the claimant knew, or through the use of reasonable diligence should have known, or received notice in writing of the existence of the injury or death for which damages are sought in the action, whichever of such date occurs first, but in no event shall such action be brought more than 4 years after the date on which occurred the act or omission or occurrence alleged in such action to have been the cause of such injury or death." 735 ILCS 5/13-212(a) (West 2000).
The key dates for purposes of the limitation period are January 13, 1998, the date plaintiff last visited Dr. Ubilluz, and June 9, 1998, or July 14, 1998, the date she discovered the alleged malpractice. Because plaintiff reasonably discovered or should have discovered the malpractice on June 9, 1998, or July 14, 1998, she had two years from one of those dates in which to file her cause of action. This period expired on June 9, 2000, or July 14, 2000. As a result, the limitation period also expired on one of those dates. Both dates are well before the effective date of the amendment to section 2-616, January 1, 2002. Therefore, pursuant to section 2-616(f) (735 ILCS 5/2-616(f) (West 2002)), we hold that the previous version of section 2-616 applied to plaintiff's second amended complaint filed in May 2002.
The trial court expressly determined that, under the previous version of section 2-616(d) (735 ILCS 5/2-616(d) (West 2000)), plaintiff's second amended complaint related back to her original complaint. Defendant argues that plaintiff's second amended complaint does not relate back to her original complaint under either version of section 2-616(d). Defendant reasons that, because the amended complaint does not relate back, we may still affirm the trial court's judgment. Because we can affirm the trial court's judgment on any basis appearing in the record (Inland Land Appreciation Fund, L.P. v. County of Kane, 344 Ill.App.3d 720, 726, 279 Ill.Dec. 649, 800 N.E.2d 1232 (2003)), we must determine whether, under the previous version of section 2-616(d), plaintiff's second amended complaint relates back to her original complaint.
Under the previous version of section 2-616(d), an amended complaint related back to the original complaint if five conditions were met:
"(1) the time prescribed or limited had not expired when the original action was commenced; (2) failure to join the person as a defendant was inadvertent; (3) service of summons was in fact had upon the person, his or her agent or partner, as the nature of the defendant made appropriate, even though he or *1235 she was served in the wrong capacity or as agent of another, or upon a trustee who has title to but no power of management or control over real property constituting a trust of which the person is a beneficiary; (4) the person, within the time that the action might have been brought or the right asserted against him or her, knew that the original action was pending and that it grew out of a transaction or occurrence involving or concerning him or her; and (5) it appears from the original and amended pleadings that the cause of action asserted in the amended pleading grew out of the same transaction or occurrence set up in the original pleading, even though the original pleading was defective in that it failed to allege the performance of some act or the existence of some fact or some other matter which is a necessary condition precedent to the right of recovery when the condition precedent has in fact been performed, and even though the person was not named originally as a defendant." 735 ILCS 5/2-616(d) (West 2000).
As this matter came before the trial court on a motion to dismiss pursuant to section 2-619 of the Code, we will review it in that posture. We must remember that a section 2-619 motion to dismiss should not be granted if there is an issue of material fact evident in the record before the court. Kedzie & 103rd Currency Exchange, Inc. v. Hodge, 156 Ill.2d 112, 116-17, 189 Ill.Dec. 31, 619 N.E.2d 732 (1993).
Analyzing the evidence in the record pursuant to the five conditions of the previous relation-back doctrine (735 ILCS 5/2-616(d) (West 2000)), we conclude that plaintiff has established at least the existence of factual issues with respect to the five conditions. Consequently, defendant's motion to dismiss cannot be granted at this time. Turning first to whether plaintiff's original complaint was timely filed, we conclude that it was. As noted above, the significant dates are January 13, 1998, the date of plaintiff's last visit to Dr. Ubilluz, and June 9 or July 14, 1998, the dates of discovery of her injury. Under the applicable statute of limitations, plaintiff had four years from January 13, 1998, to file her complaint, or two years from the discovery of her injury. 735 ILCS 5/13-212 (West 2000). Plaintiff filed her original complaint on June 6, 2000, within two years of the discovery of her injury. Plaintiff's original complaint, therefore, was filed within the applicable limitations period.
Second, we consider whether the failure to join defendant was inadvertent. Plaintiff named Dr. Ubilluz as a defendant. Until the deposition of defendant's employee, Barbara Reggilio, plaintiff believed that Dr. Ubilluz was an independent contractor. Reggilio's deposition occurred on September 21, 2001. On May 14, 2002, plaintiff filed her second amended complaint, which for the first time included a cause of action against defendant. Defendant argues that the eight-month gap between Reggilio's deposition and plaintiff's second amended complaint renders plaintiff incapable of fulfilling the inadvertence requirement. We disagree. We note that Reggilio's deposition did not occur until after the limitations period had expired. Plaintiff's counsel explained that an associate attended Reggilio's deposition and that the attorney responsible did not learn of Dr. Ubilluz's employment relationship until a later date. While "inadvertence" does not encompass a party's excusable failure to act, but only its excusable ignorance, a party who otherwise satisfies the inadvertence requirement will be allowed a reasonable period of time within which to add a party defendant after receiving knowledge of its existence. Greig v. Griffel, 49 *1236 Ill.App.3d 829, 833, 7 Ill.Dec. 499, 364 N.E.2d 660 (1977). Because plaintiff did not discover the existence of defendant until after the expiration of the limitation period, we find that plaintiff has, at least, raised a factual issue sufficient to preclude granting defendant's motion to dismiss. Defendant's citations to Tatara v. Peterson Diving Service, 283 Ill.App.3d 1031, 1040, 219 Ill.Dec. 111, 670 N.E.2d 789 (1996), and Plooy v. Paryani, 275 Ill.App.3d 1074, 1084, 212 Ill.Dec. 317, 657 N.E.2d 12 (1995), are unavailing, because in each of those cases, the plaintiff learned of the existence of the defendant sought to be added before the expiration of the limitations period. Here, by contrast, the limitation period had expired before plaintiff learned of the existence of defendant as a party to this action.
Third, we consider whether service was had upon defendant. There is no dispute that service was effected upon Doreen Roman and that she was an employee of defendant. We find that plaintiff has satisfied this condition of the relation-back doctrine.
Fourth, we consider whether defendant knew of the original action within the limitation period. Defendant argues that plaintiff's second amended complaint alleged that she discovered her injury on June 9, 1998, and that the service upon Doreen Roman on June 14, 2000, was outside of the limitation period. Defendant argues that the allegation in the complaint constitutes a judicial admission and that plaintiff's attempt to vary the discovery date of her injury by affidavit is ineffective as a matter of law. Plaintiff argues that the complaint, which was not verified, merely stated that she discovered her injury "on or about June 9, 1998." Because the allegation was couched in an approximate term, plaintiff argues that her affidavit stating that she discovered her injury on July 14, 1998, does not conflict with the allegation in her second amended complaint. We find that plaintiff has raised an issue of fact with regard to the date of discovery.
Plaintiff's second amended complaint was unverified; the allegations contained in the second amended complaint are admissions against interest, not judicial admissions. Bartsch v. Gordon N. Plumb, Inc., 138 Ill.App.3d 188, 197, 92 Ill.Dec. 862, 485 N.E.2d 1105 (1985). Plaintiff is allowed to explain or contradict the allegations in an unverified pleading. Bartsch, 138 Ill.App.3d at 197, 92 Ill.Dec. 862, 485 N.E.2d 1105. As plaintiff was not precise in her identification of the discovery date of her injuries in her second amended complaint, her affidavit raises an issue of fact regarding the discovery date. Taking the July 14, 1998, date from her affidavit as the discovery date, plaintiff's original complaint was served upon defendant's employee, albeit in a different capacity, on June 14, 2000, which was within the limitation period. Plaintiff, therefore, has established an issue of fact regarding defendant's actual or imputed knowledge of the complaint within the limitation period sufficient to preclude granting its motion to dismiss.
Last, we consider whether the cause of action against defendant grew out of the same transaction or occurrence as alleged in the original pleading. Defendant does not dispute that the claim against it in the second amended complaint is the same as that of the original complaint directed against Dr. Ubilluz. Plaintiff has satisfied the fifth element of the relation-back doctrine as it existed before January 1, 2002.
Because plaintiff has at least raised factual issues with respect to the third and fourth elements of the relation-back doctrine, and established that she satisfied the remaining elements, we hold that the trial *1237 court erred in dismissing her second amended complaint pursuant to section 2-619 of the Code.
For the foregoing reasons, we reverse the order of the circuit court of Du Page County and remand the cause for further proceedings consistent with this opinion.
Reversed and remanded.
BOWMAN and GILLERAN JOHNSON, JJ., concur.
NOTES
[1] Defendant raises a pertinent point that it is impossible for plaintiff to say that she first became aware that Dr. Ubilluz was an apparent agent of defendant following Reggilio's deposition. Logically, defendant's contention makes sense if the only way that a party becomes aware of an agency relationship between an agent and principal is via a deposition taken well after the case was initiated, then it is nonsensical to allege apparent agency at an earlier time. However, defendant's point is neither so compelling nor so simple in this case. Plaintiff alleges that Dr. Ubilluz consistently maintained that he was an independent contractor. Thus, plaintiff could have initially conceived that Dr. Ubilluz was an agent or apparent agent of defendant, but upon some initial investigation, and based on Dr. Ubilluz's representations, become convinced that there was no agency relationship between defendant and Dr. Ubilluz. This could explain why plaintiff did not include defendant as a party at an earlier date. Because this cause is at an early stage, and because the issue is more complex than defendant suggests, we cannot dispose of plaintiff's contentions on this ground.
| {
"pile_set_name": "FreeLaw"
} |
Court of Appeals
of the State of Georgia
ATLANTA, April 06, 2017
The Court of Appeals hereby passes the following order
A17D0346. SENTASHA KEYAMA-JOY EL v. THE WILLIAM OLIVER
CONDOMINIUM ASSOCIATION, INC. .
Upon consideration of the Application for Discretionary Appeal, it is ordered that it be
hereby DENIED.
LC NUMBERS:
2015CV260776
Court of Appeals of the State of Georgia
Clerk's Office, Atlanta, April 06, 2017.
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.
| {
"pile_set_name": "FreeLaw"
} |