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4,639,296 | 2020-12-03 20:00:29.576364+00 | null | http://www.ca4.uscourts.gov/Opinions/196642.U.pdf | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 19-6642
WALTER DELANEY BOOKER, JR.,
Plaintiff - Appellant,
v.
M. E. ENGELKE, Director of Food Services; N. GREGG, State Dietitian; H.
PONTON, Regional Administrator, Western; L. FLEMING, Warden; M.
BROYLES, FOMB; Q. REYNOLDS, Unit Manager; J. COMBS, Assistant Warden;
BRYANT, Sergeant; CHOW HALL OFFICERS, C and D side; WITT, Correctional
Officer; MARCUS ELAM, Regional Administrator, Western; SGT. KIMBERLIN;
E. PEARSON, Warden-Greensville; A. ANDERSON, GCC Food Operations
Director; CREQUE, GCC Food Services Manager; S. TAPP, GCC Ombudsman; K.
PHILLIPS, GCC Ombudsman,
Defendants - Appellees.
Appeal from the United States District Court for the Western District of Virginia, at
Roanoke. Jackson L. Kiser, Senior District Judge. (7:16-cv-00084-JLK-RSB)
Submitted: September 29, 2020 Decided: December 3, 2020
Before NIEMEYER, DIAZ, and FLOYD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Walter Delaney Booker, Jr. Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Walter Delaney Booker, Jr., appeals the district court’s orders granting Defendants’
motions for summary judgment in Booker’s action filed pursuant to 42 U.S.C. § 1983 and
the Religious Land Use and Institutionalized Persons Act, 42 U.S.C. § 2000cc to 2000cc-
5. After reviewing the record, we are satisified that, even assuming the Defendants’
policies substantially burdened Booker’s free exercise rights under the Religious Land Use
and Institutionalized Persons Act and the First Amendment, the policies were reasonably
related to the prison’s legitimate penological interests in balancing inmates’ religious
dietary restrictions with the agency’s operational, budgetary, and administrative concerns,
and so affirm on that basis. On all other claims, we affirm for the reasons stated by the
district court. Booker v. Engelke, No. 7:16-cv-00084-JLK-RSB (W.D. Va., Mar. 22, 2018
& Mar. 26, 2019). We further deny Booker’s motion for injunctive relief pending appeal.
We dispense with oral argument because the facts and legal contentions are adequately
presented in the materials before this court and argument would not aid the decisional
process.
AFFIRMED
2 |
4,639,298 | 2020-12-03 20:00:31.007965+00 | null | http://www.ca4.uscourts.gov/Opinions/194596.P.pdf | PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 19-4596
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RONALD COLLINS,
Defendant - Appellant.
Appeal from the United States District Court for the Southern District of West Virginia, at
Beckley. Irene C. Berger, District Judge. (5:18-cr-00068-1)
Argued: October 30, 2020 Decided: December 3, 2020
Before WILKINSON, MOTZ, and KING, Circuit Judges.
Affirmed by published opinion. Judge Motz wrote the opinion, in which Judge Wilkinson
and Judge King joined.
ARGUED: Shawn Angus Morgan, STEPTOE & JOHNSON, PLLC, Bridgeport, West
Virginia, for Appellant. Louie Alexander Hamner, OFFICE OF THE UNITED STATES
ATTORNEY, Charleston, West Virginia, for Appellee. ON BRIEF: Michael B. Stuart,
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charleston,
West Virginia, for Appellee.
DIANA GRIBBON MOTZ, Circuit Judge:
A jury convicted Ronald Collins of making false statements on an ATF form and
possessing a firearm after being “adjudicated as a mental defective.” He challenges only
his firearm conviction. Collins claims that Rehaif v. United States,
139 S. Ct. 2191
(2019),
renders the indictment and jury instructions deficient, that the conviction runs afoul of the
Second Amendment, and that the district court imposed an unreasonable sentence. Each
contention fails. Accordingly, we affirm the judgment of the district court.
I.
A.
In 2013, officers in Raleigh County, West Virginia, arrested Collins for making
terroristic threats to a police officer. While in custody, Collins threatened to kill a state
court judge and the prosecuting attorney. At a state court hearing, the judge instructed
Collins to submit to a competency evaluation. The doctor found that Collins had bipolar
disorder. Following this evaluation, the court concluded that the State had proven by a
preponderance of the evidence that Collins was “psychotic with paranoia in the context of
irrational grandiosity” and so incompetent to stand trial. The court also found a substantial
likelihood that Collins could be restored to competency following inpatient commitment.
The court ordered that Collins be transported to Sharpe Hospital, where he would stay until
his competency was restored. See W. Va. Code § 27-6A-3(f).
Collins remained at Sharpe Hospital for six months. In November 2014, the state
court found he had become competent to stand trial and ordered him released from Sharpe
2
Hospital. On September 11, 2015, prosecutors agreed to dismiss the charges against
Collins.
B.
On January 6, 2018, Collins completed an ATF Form 4473 in order to purchase a
9-milimeter handgun. On the ATF form, in response to a question asking whether he had
“ever been adjudicated as a mental defective” or “ever been committed to a mental
institution,” Collins checked the box under “No.” After a three-day waiting period, he
obtained the handgun.
A month later, the West Virginia State Police received a 911 call about a man
carrying a rifle in public. Trooper John Gilkeson found Collins walking on the side of a
road with what appeared to be a rifle (but turned out to be a BB gun). Trooper Gilkeson
ordered Collins to put the weapon down, handcuffed him, and asked if he had any other
weapons on him. Collins responded that he did, and Trooper Gilkeson found the loaded
handgun in his pocket. Trooper Gilkeson performed a criminal history check, which did
not turn up any convictions, and permitted Collins to leave with the handgun.
Later that day, Trooper Gilkeson learned that an ATF agent had been looking for
Collins because Collins was, in fact, prohibited from possessing a gun. Trooper Gilkeson
then obtained a search warrant for Collins’s residence and recovered the handgun. Police
subsequently arrested Collins.
A grand jury indicted Collins on one count of making “a false and fictitious written
statement on ATF Form 4473” in violation of 18 U.S.C. §§ 922(a)(6) and 924(a)(2) (Count
One), and one count of possessing a firearm by a person who has been adjudicated as a
3
mental defective or committed to a mental institution, in violation of 18 U.S.C.
§§ 922(g)(4) and 924(a)(2) (Count Two). Collins moved to dismiss the indictment and to
strike that he had been “adjudicated as a mental defective” from Count Two. The district
court granted the motion to strike the words “adjudicated as a mental defective” from the
indictment but denied the motion to dismiss. A one-day trial was held on March 11, 2019;
the jury returned a verdict of guilty as to both counts. The district court sentenced Collins
to 60 months imprisonment and three years of supervised release. Collins now appeals.
II.
Collins primarily makes two challenges to his firearms conviction (Count Two)
based on the Supreme Court’s recent decision in Rehaif v. United States. In Rehaif, the
Court expanded the knowledge requirement in § 922(g), holding that the Government must
prove that the defendant not only knew that he possessed a firearm, but also that he knew
he belonged to a class of persons barred from possessing that
firearm. 139 S. Ct. at 2200
.
The Supreme Court issued Rehaif on June 21, 2019 — after the jury had convicted Collins
on March 12, 2019, but before the court sentenced him on August 14, 2019. Collins
challenges both the indictment and the jury instructions on the ground that they omitted the
knowledge-of-status element recognized in Rehaif. We consider each of these arguments
in turn.
A.
We review the sufficiency of the indictment for plain error because Collins did not
challenge it before the district court. See United States v. Cotton,
535 U.S. 625
, 631 (2002).
4
Plain-error review requires that a defendant establish (1) an error; (2) that is plain; and
(3) that affects his substantial rights. United States v. Olano,
507 U.S. 725
, 732 (1993).
To affect substantial rights, the error must “have been prejudicial” and have “affected the
outcome of the district court proceedings.”
Id. at 734.
Only if a defendant establishes these
three elements can we grant discretionary relief. We may do so when the defendant is
“actually innocent” or the error “seriously affect[s] the fairness, integrity or public
reputation of judicial proceedings.”
Id. at 736
(citations omitted).
Here, Collins has established the first two plain-error requirements. The indictment
erroneously did not instruct on the knowledge-of-status element in Count Two, as Rehaif
requires. This error is “plain” because it is “clear or obvious at the time of appellate
consideration.” United States v. Ramirez-Castillo,
748 F.3d 205
, 215 (4th Cir. 2014)
(internal quotation marks and citations omitted).
But Collins’s argument fails at Olano’s third prong because he cannot show that the
error was prejudicial. The Government charged Collins with two crimes: the false
statements crime in Count One and the firearms crime in Count Two. Count One alleged
that Collins knowingly made a false statement that he had never been committed to a
mental institution. To establish this, the Government presented ample evidence at trial that
Collins knew that he had been committed to a mental institution.
Indeed, Collins himself testified that he was the subject of an order involuntarily
committing him to a mental institution, Sharpe Hospital. He discussed going to Sharpe
Hospital after the court hearing and acknowledged that he did not go on his “own free will.”
The court order committing him to Sharpe Hospital was admitted into evidence. The
5
Government also offered a complaint Collins previously filed against the West Virginia
prosecutor in his terroristic threats case that clearly evinced Collins’s knowledge that he
had been committed to Sharpe Hospital. Collins’s lawsuit centered on the events leading
to his commitment and stated that they “resulted in me being held at William H. Sharpe[]
Hospital.”
Because the jury found that Collins knowingly lied about whether he had been
committed to a mental institution as alleged in Count One, the Government’s failure to
separately allege Collins’s knowledge of his commitment in Count Two could not have
altered the jury’s verdict as to Count Two. Thus, Collins has not shown “a reasonable
probability that, but for the error, the outcome of the proceeding would have been
different.” Molina-Martinez v. United States,
136 S. Ct. 1338
, 1343 (2016) (internal
quotations marks and citation omitted). 1 Accordingly, he has failed to demonstrate that
the erroneous omission of the knowledge-of-status element in Count Two caused any
prejudice, as required by Olano.
Our recent holding in United States v. Medley,
972 F.3d 399
(4th Cir. 2020), reh’g
en banc granted, No. 19-4789 (4th Cir. Nov. 12, 2020), does not alter this conclusion. In
Medley, we held that the Government’s failure to include Rehaif’s knowledge-of-status
element in an 18 U.S.C. § 922(g)(1) charge amounted to plain error.
Id. at 410–11.
Because the indictment entirely omitted this element, we reasoned, Medley “did not receive
1
Collins also appears to challenge the sufficiency of the evidence, arguing that the
evidence does not prove that he knew he had been involuntarily committed, as required
after Rehaif. But as explained above, the Government presented ample evidence that
Collins knew of his status.
6
(even constructive) notice; nor did he receive a sufficient description of the accusations
against him,” which we held necessary to satisfy “Olano’s third prong.”
Id. In contrast, Collins
had notice of the accusations against him and a description of
these accusations. In Count One, the indictment alleged that Collins “did in connection
with the acquisition of a firearm knowingly make a false and fictitious written statement
on ATF Form 4473,” referring to his false statement that he had not been committed. The
allegation (and evidence) that Collins knowingly made this false statement mandates the
conclusion that Collins was provided with notice of the accusations against him and a
description of those allegations.
Moreover, the omission of the knowledge-of-status element in Count Two did not
“seriously affect[] the fairness, integrity or public reputation of judicial proceedings.”
Olano, 507 U.S. at 736
(internal quotation marks omitted). In the context of the false
statements charge, Collins had the opportunity to — and did in fact — fully litigate whether
he knew he had been involuntarily committed. At trial, Collins’s testimony centered on
whether he knowingly lied on the ATF form. He repeatedly claimed that he did not believe
that he had made a false representation on the form, a claim that the jury rejected. 2 But
Collins never contended that he had not been committed.
2
Collins does seem to suggest that, because he assertedly did not know his
temporary commitment order would prohibit him from possessing a firearm, he did not
know of his status under § 922(g)(4). He bases this suggestion not on a contention that he
did not know of his status as a person who had been involuntarily committed, but rather
that he did not know that his commitment prohibited him from possessing a firearm. This
is a mistake of law argument, which is not a valid defense. See Lambert v. People of the
State of California,
355 U.S. 225
, 228 (1957).
7
Because Collins had notice of the allegations against him and has not demonstrated
that the outcome of the proceedings would have been different without the indictment error,
his challenge to the indictment cannot survive plain-error review.
B.
Collins also argues that the district court committed reversible error in failing to
instruct the jury on Rehaif’s knowledge-of-status element. When, as here, a district court
erroneously omits an element of an offense from jury instructions, we reverse only if an
error results in harm to the defendant. Neder v. United States,
527 U.S. 1
, 4 (1999). An
error is harmless when it appears “beyond a reasonable doubt that the error complained of
did not contribute to the verdict obtained.” Chapman v. California,
386 U.S. 18
, 24 (1967).
In United States v. Brown, we explained that we can conclude an error caused no harm
when a “jury necessarily made th[e] findings notwithstanding the omission.”
202 F.3d 691
, 700 (4th Cir. 2000) (emphasis omitted); see also
Medley, 972 F.3d at 413
.
Such is the case here. With respect to Count One, the district court instructed the
jury that it must find both (1) “that the written statement indicating that the defendant has
never . . . been committed to a mental institution, was false” and (2) “that the defendant
knew such statement was false at the time it was given.” The jury found, beyond a
reasonable doubt, Collins guilty under Count One. In doing so it necessarily found that
Collins knew he had been committed to a mental institution, satisfying the
knowledge-of-status element in Count Two.
8
III.
Collins next contends that § 922(g)(4) as applied to him violates the Second
Amendment. We review such constitutional claims de novo. See United States v. Pruess,
703 F.3d 242
, 245 (4th Cir. 2012).
In District of Columbia v. Heller, the Supreme Court held that the Second
Amendment protects the right to bear arms for conduct falling within its scope.
554 U.S. 570
, 626–27 (2008); see also United States v. Chester,
628 F.3d 673
, 680 (4th Cir. 2010)
(noting that the threshold question under Heller is whether the statute regulates conduct
that comes within the scope of the Second Amendment). Heller emphasized that
regulations prohibiting the mentally ill from possessing firearms are “presumptively
lawful.” 554 U.S. at 626
–27 & n.26. When a party makes an as-applied claim to a
presumptively lawful firearms regulation, he “must show that his factual circumstances
remove his challenge from the realm of ordinary challenges.” Hamilton v. Pallozzi,
848 F.3d 614
, 624 (4th Cir. 2017) (quoting United States v. Moore,
666 F.3d 313
, 320 (4th Cir.
2012)).
Collins contends that his commitment under W. Va. Code § 27-6A-3(f) does not fall
within the realm of ordinary § 922(g)(4) challenges because a different West Virginia
statute, W. Va. Code §§ 27-5-1 to -11, governs “final commitment proceedings.” In United
States v. Midgett,
198 F.3d 143
(4th Cir. 1999), we expressly rejected a similar argument.
The defendant in Midgett claimed that § 922(g)(4) only encompassed confinement
resulting from Virginia’s formal civil commitment process, and not commitment to a
mental institution for restoration of competency resulting from a court order.
Id. at 145. 9
We held that commitment to restore a person to competency fell “squarely within any
reasonable definition of ‘committed’ as used in § 922(g)(4).”
Id. at 146.
Collins’s
commitment to restore him to competency under W. Va. Code § 27-6A-3(f) similarly falls
squarely within the definition of committed as used in § 922(g)(4). Cf.
Moore, 666 F.3d at 316
(noting the “unanimous result reached by every court of appeals that § 922(g)(1) is
constitutional, both on its face and as applied”). Accordingly, Collins’s Second
Amendment claim fails.
IV.
Finally, Collins maintains his sentence was procedurally and substantively
unreasonable. We review a defendant’s sentence “under a deferential abuse-of-discretion
standard.” United States v. Brewer,
520 F.3d 367
, 372 (4th Cir. 2008). First, we review
for procedural error, including “failing to consider the 18 U.S.C. § 3553(a) factors or failing
to adequately explain the chosen sentence.”
Id. (quoting Gall v.
United States,
552 U.S. 38
, 51 (2007)). If the sentence is procedurally sound, we then look to the substantive
reasonableness of the sentence.
Id. “Substantive reasonableness examines
the totality of
the circumstances to see whether the sentencing court abused its discretion in concluding
that the sentence it chose satisfied the standards set forth in § 3553(a).” United States v.
Mendoza-Mendoza,
597 F.3d 212
, 216 (4th Cir. 2010).
Collins argues that his sentence was procedurally unreasonable because the district
court failed to consider the reasons he proffered as to why he should receive a shorter
sentence, like his repeated claims that he did not believe he was violating federal law by
10
possessing a firearm. To be sure, “a district court should address the party’s arguments
and explain why [it] has rejected those arguments.” United States v. Arbaugh,
951 F.3d 167
, 174 (4th Cir. 2020) (quoting United States v. Carter,
564 F.3d 325
, 328 (4th Cir.
2009)). But here, the district court plainly did so. It thoroughly considered Collins’s
argument and rejected it, explaining that Collins continuously maintained that he had “the
right to have a gun” and that he “did nothing wrong by lying on the firearms form in order
to get that gun.” The court concluded that Collins’s “disagreement with the law does not
excuse [him] from the obligation to follow it.”
Collins argues that his sentence is substantively unreasonable because the district
court deviated from the Sentencing Guidelines range and relied too much on certain factors
while failing to consider others. The court imposed a 60-month sentence, significantly
higher than his Guidelines range of 27 to 33 months. When a district court decides the
appropriate sentence falls outside of the Guidelines’ advisory range, it “must consider the
extent of the deviation and ensure that the justification is sufficiently compelling to support
the degree of the variance.” United States v. Zuk,
874 F.3d 398
, 409 (4th Cir. 2017)
(quoting United States v. Morace,
594 F.3d 340
, 346 (4th Cir. 2010)).
The court did so here. It carefully explained its reasoning, referring to the § 3553(a)
factors. The court noted that Collins continued to act as though he “did nothing wrong.”
The court reasoned that Collins’s criminal record and mental health history reflected
“violent ideation, threatening behavior, and a lack of respect for the law.” The court also
found that Collins posed a danger to the public, since he had “talked about murdering police
officers, judges, and prosecutors” and had a “continuing interest in possessing weapons.”
11
The court relied on Collins’s past actions, like his assault of his former attorney, to
conclude that the sentence imposed was necessary “to deter” Collins “to the extent that
deterrence is possible and to protect the public.” This extensive explanation demonstrated
an appropriate exercise of discretion in weighing the relevant factors, rendering the
sentence substantively reasonable.
V.
For the foregoing reasons, the judgment of the district court is
AFFIRMED.
12 |
4,639,299 | 2020-12-03 20:00:31.678452+00 | null | http://www.ca4.uscourts.gov/Opinions/204263.U.pdf | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 20-4263
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
NATHAN WALLACE BARE,
Defendant - Appellant.
Appeal from the United States District Court for the Middle District of North Carolina, at
Greensboro. William L. Osteen, Jr., District Judge. (1:19-cr-00447-WO-1)
Submitted: November 12, 2020 Decided: December 3, 2020
Before KEENAN, FLOYD, and QUATTLEBAUM, Circuit Judges.
Affirmed by unpublished per curiam opinion.
John D. Bryson, WYATT EARLY HARRIS WHEELER, LLP, High Point, North
Carolina, for Appellant. Matthew G.T. Martin, United States Attorney, Terry M.
Meinecke, Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Nathan Wallace Bare entered a conditional guilty plea to possession of a firearm by
a convicted felon, in violation of 18 U.S.C. §§ 922(g), 924(a)(1), reserving the right to
appeal the district court’s denial of his motion to suppress evidence seized during a traffic
stop. The district court denied the motion to suppress, finding probable cause existed to
initiate the stop. We affirm.
In considering an appeal of the denial of a motion to suppress, we review the district
court’s legal conclusions de novo and its factual findings for clear error. United States v.
Khweis,
971 F.3d 453
, 459 (4th Cir. 2020). In addition, “[w]hen a suppression motion has
been denied, [we] review[] the evidence in the light most favorable to the [G]overnment.”
United States v. Abdallah,
911 F.3d 201
, 209 (4th Cir. 2018) (internal quotation marks
omitted).
A traffic stop of a vehicle constitutes a seizure within the meaning of the Fourth
Amendment and is permissible if the officer has probable cause to believe a traffic violation
has occurred. Whren v. United States,
517 U.S. 806
, 809-10 (1996). Accordingly, when
an officer observes even a minor traffic offense, a stop of the vehicle is permitted. United
States v. Williams,
740 F.3d 308
, 311-12 (4th Cir. 2014).
It is undisputed that Bare’s vehicle crossed into the oncoming lane of traffic while
Bare was making a left turn and that the vehicle crossed the center line a second time while
traveling on National Boulevard. North Carolina law requires that a vehicle maintain its
lane of travel except when an obstruction necessitates driving left of center. N.C. Gen.
Stat. § 20-146 (2019). Bare asserts that he did not violate N.C. Gen. Stat. § 20-146 because
2
a significant snowfall made road conditions such that he could not drive without crossing
the center line. Although it had snowed approximately 8 to 10 inches the day before, the
officer testified that the road conditions on National Boulevard were not hazardous and did
not require a vehicle to cross the center line. Further, the district court found the officer to
be a credible witness. See United States v. Patiuka,
804 F.3d 684
, 689 (4th Cir. 2015)
(stating that credibility determination made at pretrial suppression hearing entitled to
“particular deference” (alterations and internal quotation marks omitted)). Bare did not
provide any evidence that discredited the officer’s testimony, nor did he provide any
evidence of the road conditions on National Boulevard at the time of the traffic violation
that contradicted the officer’s testimony. Therefore, the district court did not err in denying
Bare’s motion to suppress.
Accordingly, we affirm the district court’s judgment. We dispense with oral
argument because the facts and legal contentions are adequately presented in the materials
before this court and argument would not aid the decisional process.
AFFIRMED
3 |
4,490,014 | 2020-01-17 22:02:09.061522+00 | Murdock | null | OPINION.
MuRdock :
As the result of a motion filed on July 8, 1929, by the petitioner in the above entitled case, a hearing was held on July 24, 1929, on the question of whether or not the Board has jurisdiction in this case. Certain documents were offered in evidence as joint exhibits of both parties in this proceeding and thereafter briefs were filed.
On November 9,1926, the Commissioner mailed a deficiency notice to “ Gideon-Anderson Lumber and Mercantile Company, Gideon, Mo.,” notifying it of deficiencies in its income and profits taxes for the calendar years 1917 and 1918 and of an overassessment for the year 1919. Thereafter, a petition was filed under the heading “The Gideon-Anderson Company, Successor to the Gideon-Anderson Lumber and Mercantile Company, Petitioner.” This petition is verified by W. P. Anderson, who states that he is the president of the Gideon-Anderson Co. and that the Gideon-Anderson Lumber & Mercantile Co. was merged into the Gideon-Anderson Co. on January 1, 1922.
On December 31,1921, the Gideon-Andérson Lumber & Mercantile Co., then a corporation of the State of Missouri, and three other corporations of the State of Missouri in a similar line of business, after proper action by their respective stockholders and boards of directors, entered into an agreement of “Amalgamation and Incorporation ” for the consolidation of all four under the laws of Missouri, into a consolidated corporation to be called “ The Gideon-Anderson Company.”
On January 24,1922, the Secretary of State of the State of Missouri issued a certificate of consolidation stating that, whereas these four corporations had complied with the law governing the consolidation of manufacturing and business companies, the said corporations were duly consolidated under the name of Gideon-Anderson Co., located at Gideon, Mo., and entitled to all the rights and privileges granted to manufacturing and business corporations under the laws of the State for a term of 50 years from the date of the certificate.
*330Our question is to determine whether under the provisions of section 283 (a) and section 274' (a) of the Revenue Act of 1926, we have any jurisdiction to entertain the proceeding which the petitioner has sought to institute by the filing of its petition. In any case before this Board it is incumbent upon the petitioner to allege sufficient facts to show that we have jurisdiction and, of course, if at any stage of the proceedings it appears that we do not have jurisdiction, an order of dismissal should be entered. The respondent can take such action to protect his interests as he may deem necessary. Pie has several courses open to him. For instance, in the present case, even if he did not know the details of the succession, he could have moved for dismissal or for more adequate pleading of jurisdictional facts. The petitioner has not alleged sufficient facts to show that we have jurisdiction and on this ground alone dismissal would be proper.
But we will consider such facts as are now before us. If we have jurisdiction, it is because the petitioner comes within the meaning of the word “ taxpayer ” as used in section 274 (a) which is in part as follows:
If in the case of any taxpayer the Commissioner determines that there is a deficiency in respect of the tax imposed by this title, the Commissioner is authorized to send notice of such deficiency to the taxpayer by registered mail. Within 60 days after such notice is mailed * * * the taxpayer may file a petition with the Board of Tax Appeals for a redetermination of the deficiency. * * *
We must look to the laws of Missouri for the effect of the consolidation.
But corporations exist for specific purposes, and only by legislative act, so that if the life of the corporation is to continue even only for litigating purposes, it is necessary that there should be some statutory authority for the prolongation. The matter is really not procedural or controlled by the rules of the court in which the litigation pends. It concerns the fundamental law of the corporation enacted by the State which brought the corporation into being, [Oklahoma Gas Co. v. Oklahoma, 273 U. S. 257.]
Section 10165 of the Revised Statutes of Missouri, 1919, under which the four corporations were consolidated, provides as follows:
Any two corporations now existing under general or special laws * * * whose objects and business are in general of the same nature, may amalgamate, unite and consolidate said corporations and form one consolidated corporation, hold and enjoy all the rights, privileges, powers, franchises and property belonging to each, and under such corporate name as they may adopt or agree upon; * * *. Provided that no such consolidation shall in any manner affect or impair the rights of any creditors of either of said corporations * * *.
Our attention has not been called to any case decided in the court of last resort of the State of Missouri, which is directly in point on *331the question of whether or not the consolidating companies, under this act, are dissolved and a new consolidated company incorporated.’ We have been able to find no such case. Two lower court cases are cited, which are not very helpful, although the one, Springfield Lighting Co. v. Hobart, 98 Mo. App. 227; 68 S. W. 942, contains the statement that where two or more business companies are consolidated under section 1334, the constituent corporations become dissolved or extinguished, and that the amalgamated corporation is a new corporation, but that touching the business of the old corporations, and as to their respective debtors and creditors, the consolidated company is to be regarded as a continuation of the old companies under a new name. In the other case, Wells v. Electric Co., 108 Mo. App. 607; 84 S. W. 204, the court held that a proceeding instituted against one of the consolidating corporations before the consolidation, could be prosecuted without bringing in the new consolidated corporation.
It is not clear in the statute itself whether the legislature intended that a new corporation was to come into being and the old corporations were to be dissolved. The Supreme Court of the United States has said that if a statute contains no words of grant of corporate powers to the consolidated corporations, then the old corporations must be continued in existence. See A. J. Siegel et al., 4 B. T. A. 186, and cases there cited. This Missouri statute, however, contains words of grant of power. It provides that the one consolidated corporation shall “hold and enjoy all the rights, privileges, powers, franchises and property belonging to each ” of the old corporations. These words, although they do not set out in detail the powers of the consolidated corporation, constitute nevertheless, a very clear grant of corporate powers. If these words had been omitted from the act, then no one could have said what powers the consolidated corporation was to have and the rule laid down by the Supreme Court would apply.
In our opinion, the consolidating corporations under this Missouri law are dissolved and a new corporation comes into being, which new corporation is not the same corporation as any one of the consolidating corporations. This is the general rule in case of a consolidation where the statute does not specifically provide what is to happen in this regard. Fletcher Cyclopedia Corporations, vol. 7, § 4700 et seq.; Cook on Corporations, 8th ed., vol. 5, § 897; Thompson on Corporations, 3rd ed., § 6012 et seq; Corpus Juris, vol. 14(a) p. 1067. Also cf. State ex rel. Houck v. Lesueur, 145 Mo. 322; 46 S. W. 1075; Burford v. Keokuk Northern, 3 Mo. App. 159; affd. 69 Mo. 611; Keokuk & Western Railroad Co. v. Missouri, 152 U. S. 301.
*332We have heretofore fully considered the effect of the dissolution ‘of a corporation in Missouri upon the right to institute proceedings before this Board. See S. Hirsch Distilling Co., 14 B. T. A. 1073. The petitioner in this case is not the taxpayer, and, this being so, we have no jurisdiction to entertain the proceeding (cf. Bond, Inc., 12 B. T. A. 339; Weis & Lesh Mfg. Co., 13 B. T. A. 144; Engineers Oil Co., 14 B. T. A. 1148; Bisso Ferry Co., 8 B. T. A. 1104; American Arch Co., 13 B. T. A. 552; Sanborn Bros., 14 B. T. A. 1059; S. Hirsch Distilling Co., 14 B. T. A. 1073; Consolidated Textile Corporation, 16 B. T. A. 178).
Reviewed by the Board.
Order of dismissal will be entered accordingly. |
4,490,015 | 2020-01-17 22:02:09.09338+00 | Lansdon | null | *37OPINION.
Lansdon :
The petitioner contends that during the years 1922 and 1923 it was affiliated with the Harbour-Longmire Co. of Enid. The same contention was presented with respect to the year 1921 in *38Harbour-Longmire Co., 7 B. T. A. 314, where we held that the two corporations were affiliated. The facts presented in the instant proceeding are substantially the same as those in the prior proceeding. If there is any difference, the facts here are generally more favorable to the petitioner’s contention. We think the requirements of section 240(c) of the Revenue Act of 1921 have been met and that the corporations were affiliated during the taxable years.
This brings us to the question whether the petitioner and the Enid company may file an amended consolidated return for 1922 and an original consolidated return for 1923. Section 240 (a) of the Revenue Act of 1921 provides:
That corporations which are affiliated within' the meaning of this section may, for any taxable year beginning on or after January 1, 1922, make separate returns or, under regulations prescribed by the Commissioner with the approval of the Secretary, make a consolidated return of net income for the purpose of this title, in which case the taxes thereunder shall be computed and determined upon the basis of such return. If return is made on either of such bases, all returns thereafter made shall be upon the same basis unless permission to change the basis is granted by the Commissioner.
We have repeatedly held that affiliated corporations filing separate returns for 1922 may not subsequently file a consolidated return for that year. Belvidere Lumber Co., 6 B. T. A. 84; Geneva Theaters, Inc., 15 B. T. A. 1073; Radiant Glass Co., 16 B. T. A. 610; see, also, R. Downes, Jr., 5 B. T. A. 1029; Wm. A. Buttolph, 7 B. T. A. 310; affd., C. C. A., 7th Cir., 29 Fed. (2d) 115; and Alameda Inv. Co. v. McLaughlin, 28 Fed. (2d) 81.
The petitioner contends, however, that under the provisions of section 240(a), above, affiliated corporations are entitled to an election between the consolidated basis and the separate basis for returning income and that lack of knowledge of the provisions of section 240(a) precludes an election, even though separate returns are filed, for a person can not elect if he has no knowledge of his rights. We are not impressed with petitioner’s contention or the citations in support thereof. An “ election ” as defined in petitioner’s brief is not provided for in section 240 (a). That section provides: “ That corporations which are affiliated * * * may * * * make separate returns or * * * make a consolidated return * * *. If return is made on either of such bases, all returns thereafter made shall be upon the same basis * * * .” The petitioner and the Enid company filed separate returns for 1922. They may not later file an amended consolidated return.
The remaining question — whether petitioner and its affiliated company may file a consolidated return for 1923 — is answered by the *39last sentence of section 240(a), viz, “If return is made on either of such bases, all returns thereafter made shall be upon the same basis unless permission to change the basis is granted by the Commissioner.” It is not alleged that permission to change the basis has ever been sought by these corporations. It follows that income for 1923 should be computed on the basis of separate returns.
Reviewed by the Board.
Decision will be entered for the respondent. |
4,490,016 | 2020-01-17 22:02:09.126781+00 | Marquette | null | *334OPINION.
Marquette :
It is the contention of the petitioners that in 1921 the partnership of Labrot & Co. sold to Labrot & Co., Inc., a corporation, for $130,000, two farms which had a cost to the partnership, or a fair market value on March 1, 1913, of $258,561.11, and that the partnership thereby sustained a loss of $128,561.11, which should be deducted in computing its net income for 1921.
The respondent denies that the partnership sustained a deductible loss and urges (1) that the transaction was not bona fide, and (2) that if it was bona fide it was not a sale for cash but was an exchange of property for the capital stock of the corporation and did not give rise to gain or loss. The respondent also takes the position that under no circumstances can the partnership deduct any loss on account of the sale of the residence on Holly Beach Farm.
We do not deem it necessary in disposing of this case to discuss and decide all of the contentions made by the parties. We rest our decision on the single ground that under the Revenue Act of 1921 the transaction between the partnership and the corporation was one that could not result in either a taxable gain or a deductible loss. Section 202 (c) (3) of that Act, provides:
*335(c) For the purposes of this title, on an exchange of property, real, personal, or mixed, for any other such property, no gain or loss shall be recognized unless the property received in exchange has a readily realizable market value; but even if the property received in exchange has a readily realizable market value, no gain or loss shall be recognized—
* * * * * *
(3) When (A) a person transfers any property, real, personal, or mixed, to a corporation, and immediately after the transfer is in control of such corporation, or (B) two or more persons transfer any such property to a corporation, and immediately after the transfer are in control of such corporation, and the amounts of stock, securities, or both, received by such persons are in substantially the same proportion as their interests in the property before such transfer. For the purposes of this paragraph, a person is, or two or more persons are, “ in control ” of a corporation when owning at least 80 per centum of the voting stock and at least 80 per centum of the total number of shares of all other classes of stock of the corporation.
The form of the transaction under consideration is that the partnership, desiring to have its real estate held and operated under corporate form, organized a corporation, subscribed for the capital stock to the extent of $250,000, and paid therefor cash to the extent of $86,640.53. The corporation on the same day purchased from the partnership two farms for $130,000 and paid to the partnership to the extent of $80,000, the same money that the partnership had paid to the corporation for stock. The balance of the $130,000 which the corporation agreed to pay the partnership for the farms was represented by a credit to the partnership on its outstanding indebtedness to the corporation on account of the capital stock for which it had subscribed. The substance of the transaction is that the partnership exchanged the farms for stock of the corporation, and that after the exchange the partnership was in control of the corporation, as the word control is used in the section of the statute just quoted. We are of opinion that the transaction is essentially one of the kind in which Congress did not intend for the purposes of taxation to recognize either gain or loss, and that we should be governed by its substance and not by its form. The individuals composing the partnership were, after the conveyance, in reality in no different position than they were before. The money that they had expended for the capital stock of the corporation was returned to them and the farms were still within their control, and they could reacquire them at any time by the simple method of dissolving the corporation and taking over its assets. We are constrained to hold that the partnership did not suffer any deductible loss.
Judgment will be entered for the respondent. |
4,490,017 | 2020-01-17 22:02:09.160965+00 | Fossan | null | opinion.
Van Fossan:
Respondent determined a deficiency in estate taxes amounting to $3,638.40. Petitioner alleges as error (1) the inclusion of all of the community property of decedent and his wife in the taxable-estate; (2) the determination of a deficiency based on an erroneous refund; (3) the determination o,f a defiiciency after a final and binding adjustment and settlement was made; (4) the bar of the statute of limitations.
It is pleaded and admitted that the decedent died a resident of California and that all of the property in the estate of decedent was community property of the marital community.
The first ground of error is not well founded. Griffith Henshaw, Executor, 12 B. T. A. 1441; affirmed by the Circuit Court of Appeals, 31 Fed. (2d) 946; certiorari denied, 280 U. S. 43 A.
A similar ruling applies to the second ground alleged. Oilbelt Motor Co., 16 B. T. A. 831.
To establish the third ground of error it was incumbent on petitioner to present evidence of a final or closing agreement. No such evidence was presented. The making of a refund does not, of itself, constitute such a settlement. The third ground of error is therefore not established.
The last error urged by petitioner is the bar of the statute of limitations against collection. That she is not seriously relying on this position may be inferred from the fact that counsel makes no reference to the question in his brief. From the argument made by the same counsel in another case, involving similar issues, we understand his position to be that the filing of a petition before the Board does not suspend the running of the statute of limitations as to deficiencies in estate taxes.
Section 318 of the Revenue Act of 1926 provides that, where after the enactment thereof, the respondent determines that assessment *337should be made with respect to the tax imposed by the Revenue Acts of 1917,1918, and 1921, he is authorized to send a notice thereof, and that such notice shall be considered a notice under section 308(a) of the same Act. Section 308(a) prohibits the Commissioner from making an assessment of a deficiency until after the mailing of such notice, and the lapse of 60 days thereafter, and if a petition is filed with the Board, until after the decision of the Board becomes final. Subdivision (b) of section 308 of the same Act provides that the deficiency redetermined by the Board shall be assessed and paid upon notice and demand. Section 310(b) of the Revenue Act of 1926 provides that the running of the statute of limitations on the making of assessments and the beginning of distraint or a proceeding in court for collection in respect of any deficiency shall be suspended for the period during which the Commissioner is prohibited from making the assessment, and for 60 days thereafter.
On examination it is readily seen that these sections of the revenue acts integrate perfectly and that the filing of a petition before the Board operates to suspend the running of the statute of limitations as to estate taxes until the Board’s decision has become final and for 60 days thereafter.
The statute of limitations does not bar the assessment and collection of the deficiency herein.
Decision will he entered, for the respondent. |
4,490,018 | 2020-01-17 22:02:09.192996+00 | Fossan | null | *339OPINION.
Van Fossan:
Three issues are presented by petitioners in this case. The first is the propriety, for estate-tax purposes, of including in the gross estate of decedent the wife’s share of the community property owned by the marital community at the death of decedent. This question is ruled adversely to petitioner on the authority of Griffith Henshaw, Executor, 12 B. T. A. 1441; affirmed by the Circuit Court of Appeals, 31 Fed. (2d) 946; certiorari denied, 280 U. S. 43 A.
*340The second question presented by these petitioners is whether or not a deficiency may be based in part on an erroneous refund previously made, it appearing that of the total deficiency of $86,707.05 determined by respondent the sum of $65,853.55 represents an amount previously refunded. This precise question was involved in the case of Etta Oraig, Executrix, 18 B. T. A. 86, wherein we held a deficiency so grounded to be validly determined. In Oilbelt Motor Co., 16 B. T. A. 831, we observed, “ the Commissioner has power at any time within the period of limitations to revise or change his findings unless a settlement has been made pursuant to section 3229 of the Kevised Statutes, and * * * in so doing he may determine a deficiency based on an erroneous refund.” There is no evidence of such a statutory settlement. These decisions, to which we adhere, dispose of this issue. See, also, The Austin Co., 8 B. T. A. 628; affd., 35 Fed. (2d) 910.
The third issue, the determination of the fair market value of certain properties, is settled by the stipulation of the parties.
There remains an issue raised by the respondent, when at the hearing he duly moved to increase the deficiency above that found by the Commissioner by the amount of interest paid to petitioners at the time of the erroneous refund. That in a proper case the Board may increase the deficiency in estate taxes found by the Commissioner is not open to question. Section 308 (e) of the Bev-enue Act of 1926 provides:
The Board shall have jurisdiction to redetermine the correct amount of the deficiency even if the amount so redetermined is greater than the amount of the deficiency, notice of which has been mailed to the executor, and to determine whether any additional amount or addition to the tax should be assessed, if claim therefor is asserted by the Commissioner at or before the hearing or rehearing.
Section 307 of the same Act defines a deficiency in estate taxes as:
(1) The amount by which the tax imposed by this title exceeds the amount shown as the tax by the executor upon his return; but the amount so shown on the return shall first be increased by the amounts previously assessed (or collected without assessment) as a deficiency, and decreased by the amounts previously abated, refunded, or otherwise repaid in respect of such tax; * * *
The Commissioner contends that the amount of interest falls within the above definition as an amount “ otherwise repaid in respect of such tax.” With this we do not agree. The word “ repaid ” presupposes a payment. The payment of the interest by the Commissioner was an original payment and not a repayment. Petitioner had never theretofore paid to Commissioner this amount of $9,288.06 as interest or in any other manner. It could not therefore be “ repaid.” Similar reasoning is pertinent as to the word “ refunded.” Clearly, this item is not one that falls within the definition of a statutory deficiency.
*341There remains for consideration section 308(e), which authorizes the Board to increase a deficiency found by the respondent, “ and to determine whether any additional amount or addition to the tax should be assessed,” with the consequent question whether this grant of authority is broad enough to admit the addition to the deficiency of the item of interest erroneously paid petitioners in connection with the refund. It is the duty of any tribunal engaged in construing an Act of Congress to endeavor to give meaning to every part of the statute before it. There is also the duty of construing the entire Act in the light of its evident purpose. It seems clear that we may redetermine the deficiency in a greater amount than that found by the Commissioner and may also “ determine whether any additional amount or addition to the tax should be assessed.”
The word “ assessed ” is here used as it is used elsewhere in the Revenue Act — as relating to taxes. There are many money obligations due to the Government that may not be assessed. Obviously the “ additional amount ” or “ addition to the tax ” must bear such a relation to taxes as properly to be assessable. But the sum of interest paid by the Government was not taxes. It was paid by the Government as compensation for the supposed wrongful detention and use of $65,853.55 of petitioners’ money for a given period. In petitioners’ hands it was the same as any other interest or rent collected by them. It is not an item properly to be catalogued under section 308 (e) as an “ additional amount or addition to the tax (which) should be assessed.”
Reviewed by the Board.
Decision will be entered under Bule 50.
TeamMell and Phillips concur in the result only. |
4,639,316 | 2020-12-03 20:02:32.010868+00 | null | https://www.courts.ca.gov/opinions/nonpub/E073530.PDF | Filed 12/3/20 Ahn v. Hestrin CA4/2
See Dissenting Opinion
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
FOURTH APPELLATE DISTRICT
DIVISION TWO
SANG-HOON AHN et al.,
Plaintiffs and Respondents, E073530
v. (Super.Ct.No. RIC1607135)
MICHAEL HESTRIN, etc., et al., OPINION
Defendants,
MATTHEW FAIRCHILD et al.,
Intervenors,
CATHERINE S. FOREST,
Movant and Appellant.
APPEAL from the Superior Court of Riverside County. Irma Poole Asberry,
Judge. Affirmed.
1
Law Office of Jon B. Eisenberg and Jon B. Eisenberg; O’Melveny & Myers, John
C. Kappos, Bo K. Moon, and Jason A. Orr; Compassion & Choices and Kevin Díaz for
Movant and Appellant.
Daniel Mansueto; Catherine W. Short, Allison K. Aranda, and Alexandra M.
Snyder; and Karen M. Kitterman for Plaintiffs and Respondents.
No appearance for Defendants.
No appearance for Intervenors.
The End of Life Option Act (Health & Saf. Code, §§ 443-443.2) (Act) permits a
doctor, under narrow circumstances, to prescribe “aid-in-dying” to a terminally ill patient.
“Aid-in-dying” is defined, essentially, as a drug that will “bring about . . . death . . . .”
(Health & Saf. Code, § 443.1, subd. (b).)
The plaintiffs in this action seek to have the Act declared unconstitutional. The
defendants, who include the Attorney General and “[t]he State of California by and
through the California Department of Public Health” (collectively the Attorney General),
seek to uphold the Act as constitutional.
Dr. Catherine S. Forest moved to intervene. She is a doctor who wants to be able
to prescribe aid-in-dying pursuant to the Act; thus, like the Attorney General, she seeks to
uphold the Act. The trial court denied her motion, finding that she was adequately
represented by the Attorney General.
Dr. Forest appeals. In her opening brief, she argues that the Attorney General
cannot adequately represent her, primarily because, if the Act is eventually struck down,
2
the Attorney General will be responsible for prosecuting any doctors who nevertheless
continue to provide aid-in-dying.
We will hold that the Attorney General is currently capable of providing adequate
representation, and that this hypothetical future possibility is insufficient to show
inadequate representation. We also reject certain arguments that Dr. Forest raised for the
first time in her reply brief. Hence, we will affirm.
I
FACTUAL AND PROCEDURAL BACKGROUND
The Act was enacted in 2015; it went into effect on June 9, 2016. (People ex rel.
Becerra v. Superior Court (2018)
29 Cal. App. 5th 486
, 490.)
One day before that, this action was filed by five individual physicians,1 along
with a professional organization that promotes ethical standards in the medical
profession2 (collectively the Ahn parties). They seek a declaration that the Act is
unconstitutional.
Originally, the only named defendant was Michael Hestrin, in his capacity as
District Attorney of Riverside County. However, the Attorney General was granted leave
to intervene.
1
Dr. Sang-Hoon Ahn, Dr. Laurence Boggeln, Dr. George Delgado,
Dr. Philip Dreisbach, Dr. Vincent Fortanasce, and Dr. Vincent Nguyen.
2
The American Academy of Medical Ethics.
3
Matthew Fairchild and Dr. Forest, both represented by the same counsel, filed a
motion for leave to intervene.3 Fairchild had been diagnosed as having terminal cancer.
Dr. Forest was a doctor who treated terminally ill patients and wanted to be able to offer
them aid-in-dying. They both argued that they were entitled to intervene because “[their]
rights to provide or receive medical aid-in-dying will be determined in this lawsuit . . . .”
They also argued that they were not adequately represented by the current defendants
because they had an immediate interest in aid-in-dying being available to prevent pain
and suffering, whereas the defendants had a less urgent and more abstract interest in
upholding the law.
The Attorney General took no position on the motion. The Ahn parties, however,
filed an opposition. They argued that “the intervention seeks to have private parties
fulfill the public function of law enforcement.”
The trial court granted the motion as to Fairchild. However, it denied the motion
as to Dr. Forest. It explained: “[Fairchild’s] interest [is] not adequately represented by
the Attorney General. [His] arguments, positions and interest are unique from that of the
Attorney General and [his] interest will be impaired if intervention is denied.” On the
other hand, “[Dr. Forest’s] interest [is] not unique . . . . The State Defendants who are
defending the Act are situated to represent her interest adequately.”
3
The motion was also brought by Andrea Saltzman. However, Saltzman has
since died.
4
It rejected the Ahn parties’ argument, stating: “[Fairchild is] not attempting to
fulfill the public function of law enforcement. Instead, [he] seek[s] to intervene to assert
[his] own personal interest in the Act’s validity. Fairchild [is] directly benefitted by the
Act and [is] better[ ]situated to present the position of an individual who would seek the
opportunities afforded by the Act.”
II
THE TRIAL COURT CORRECTLY DENIED INTERVENTION
There are two types of intervention, mandatory and permissive. (Code Civ. Proc.,
§ 387, subd. (d).)
One of the grounds for mandatory intervention is that a nonparty “claims an
interest relating to the property or transaction that is the subject of the action and that
person is so situated that the disposition of the action may impair or impede that person’s
ability to protect that interest, unless that person’s interest is adequately represented by
one or more of the existing parties.” (Code Civ. Proc., § 387, subd. (d)(1)(B).)
“California cases are not settled on whether we review the denial of a request for
mandatory intervention . . . de novo or for abuse of discretion. [Citation.]” (Edwards v.
Heartland Payment Systems, Inc. (2018)
29 Cal. App. 5th 725
, 732.)
One of the grounds for permissive intervention is that a nonparty “has an interest
in the matter in litigation . . . .” (Code Civ. Proc., § 387, subd. (d)(2).) Permissive
intervention may be denied when it would “‘ . . . “enlarge the scope of the action” or
“broaden the issues” so as to litigate matters not raised by the original parties.
5
[Citation.]’” (Royal Indemnity Co. v. United Enterprises, Inc. (2008)
162 Cal. App. 4th 194
, 204.) It also may be denied when “the interests of the original litigants outweigh the
intervenors’ concerns . . . . [Citations.]” (People v. Superior Court (Good) (1976)
17 Cal. 3d 732
, 737.) “We review the denial of permissive intervention for abuse of
discretion. [Citations.]” (Edwards v. Heartland Payment Systems,
Inc., supra
, 29
Cal.App.5th at p. 736.)
No one disputes that Dr. Forest has an interest in the subject matter of the action.
She is a doctor, and the action will determine whether she can provide a medical service
to her patients — a service that she wants to be able to provide.4
The trial court denied Dr. Forest’s motion to intervene because it found that the
Attorney General could adequately represent her interest. At the same time, it granted
Fairchild’s motion to intervene because it found that the Attorney General could not
adequately represent his interest. Dr. Forest does not argue that this was inconsistent or
irrational.5 It was not. Viewing the trial court’s ruling in light of the parties’ arguments,
it evidently felt that Fairchild — because he was facing death — had an interest in
expedition that the Attorney General and Dr. Forest did not share.
4
Dr. Forest argues that she also vicariously shares her patients’ interest in
access to assisted suicide. Our Supreme Court has held that “‘[a] physician has standing
to assert his patient’s rights where they may not otherwise be established.’ [Citation.]”
(Lewis v. Superior Court (2017)
3 Cal. 5th 561
, 571, italics added.) Here, the trial court
allowed Fairchild — a patient — to intervene. At that point, there was no need to let
Dr. Forest participate as a representative of her patients.
5
In her reply brief, she does raise the different argument that it was
inconsistent and irrational to deny her permissive intervention. (See post.)
6
Rather, Dr. Forest argues that the finding was erroneous because, if the Act is
struck down, the Attorney General could potentially have to prosecute her and other
similarly situated doctors if they continue to provide assisted suicide. As long as this
action is pending, however, the Attorney General has no interest in prosecuting her. To
the contrary, he has an interest in upholding the Act, which prohibits prosecuting her. If
and when the Act is struck down, this action will be over; the Attorney General will then
be free to prosecute Dr. Forest (if necessary and if he so desires).
We recognize the hypothetical possibility that: (1) the trial court might strike
down the Act, (2) the Attorney General might appeal, (3) the judgment might not be
stayed (automatically or otherwise), (4) thereafter, Dr. Forest or some other doctor might
nevertheless provide aid-in-dying to a terminally ill patient, (5) a district attorney might
prosecute the doctor, (5) the district attorney might obtain a conviction, and (6) the doctor
might appeal the conviction while the Attorney General’s appeal is still pending. In that
situation, the Attorney General could have simultaneous duties to represent Dr. Forest’s
interest in the civil appeal and to oppose her interest in the criminal appeal. However,
this scenario is too speculative and conjectural to demand intervention now. We also
note that, under those circumstances, Fairchild could still be a party to the appeal and
could represent Dr. Forest’s interest.
Dr. Forest responds that, once the Attorney General is allowed to represent her
interest, he will take on a duty of loyalty to her, which would conflict with his potential
future duty to prosecute her. An “attorney has a duty of loyalty to his or her clients.
7
[Citations.]” (Zador Corp. v. Kwan (1995)
31 Cal. App. 4th 1285
, 1293.) Hence, “[a]
lawyer who has formerly represented a client in a matter shall not thereafter represent
another person in the same or a substantially related matter in which that person’s
interests are materially adverse to the interests of the former client unless the former
client gives informed written consent.” (Rules Prof. Conduct, rule 1.9(a).)
However, one of the very cases that Dr. Forest cites in support of this contention,
People v. Superior Court (Humberto S.) (2008)
43 Cal. 4th 737
, indicates that a
prosecutor takes on a duty of loyalty to an individual only if the prosecutor “formal[ly]
represent[s]” that individual (id. at p. 754) — e.g., when the prosecutor “represent[s] the
widow of a crime victim in writ proceedings challenging defense access to the crime
victim’s dwelling.” (Id. at p. 753.) Here, the Attorney General can represent Dr. Forest’s
interest without making her his client and thus without taking on any duty of loyalty to
her. In any event, even assuming we are wrong about this, that would just mean that, in
any such future prosecution, Dr. Forest could move to recuse the Attorney General.
In her reply brief, Dr. Forest argues for the first time that the Attorney General
cannot adequately represent her interest because his goal is to uphold the Act, whereas
her goal is to personally provide aid-in-dying. She forfeited this argument by failing to
raise it in her opening brief. “We generally do not consider arguments raised for the first
time in a reply brief. [Citation.]” (Raceway Ford Cases (2016)
2 Cal. 5th 161
, 178.)
“Obvious reasons of fairness militate against consideration of an issue raised initially in
8
the reply brief of an appellant. [Citations.]” (Varjabedian v. City of Madera (1977)
20 Cal. 3d 285
, 295, fn. 11.)
That is not to say that, if not forfeited, it would have merit.
Dr. Forest posits a distinction between an “outcome” and an “ultimate objective.”
In her view, even if a party and a nonparty seek the same outcome, the party cannot
adequately represent the nonparty if they have different ultimate objectives. As applied
here, she and the Attorney General seek the same outcome (i.e., upholding the Act), but
she contends that they have different ultimate objectives (i.e., she wants to personally
provide aid-in-dying).
Federal cases6 hold that “‘[i]f an applicant for intervention and an existing party
share the same ultimate objective, a presumption of adequacy of representation arises.
[Citation.]” (Wolfsen Land & Cattle Co. v. Pacific Coast Federation of Fishermen’s
Associations (Fed. Cir. 2012)
695 F.3d 1310
, 1316; accord, Freedom from Religion
Foundation, Inc. v. Geithner (9th Cir. 2011)
644 F.3d 836
, 841.) However, it does not
appear that these cases use “ultimate objective” to mean anything different from
“outcome.” (See, e.g., Freedom from Religion Foundation, Inc. v.
Geithner, supra, at 6
“Although not identical in all respects, section 387 is modeled in part after
rule 24 of the Federal Rules of Civil Procedure. . . . It follows that the Legislature must
have intended that the two mandatory intervention statutes should have the same
meaning, and we may look to authorities construing the parallel federal rule for guidance.
[Citations.]” (Carlsbad Police Officers Association v. City of Carlsbad (2020)
49 Cal. App. 5th 135
, 151; but see City and County of San Francisco v. State of California
(2005)
128 Cal. App. 4th 1030
, 1043 [federal intervention standard is “more lenient” than
state intervention standard.)
9
p. 841 [government defendants and nonparty had the same “ultimate objective,” namely
“to uphold the challenged statutes”].) Most important, if the party and nonparty have
different ultimate objectives, that simply means the presumption does not apply; it does
not conclusively disprove adequate representation.
Actually, the adequate representation inquiry is less conceptual and more
pragmatic than Dr. Forest would have it. It is simply this: Given that both the Attorney
General and Dr. Forest want to uphold the Act, but Dr. Forest also wants to provide aid-
in-dying to her terminally ill patients, does it follow that he will not adequately represent
her? It does not. There is no reason why he would not present the same arguments.
As Dr. Forest acknowledges, federal cases also recognize a second, separate
presumption: “There is a general presumption that a government entity is an adequate
representative. [Citation.]” (Benjamin ex rel. Yock v. Department of Public Welfare of
Pennsylvania (3d Cir. 2012)
701 F.3d 938
, 958.) “Such presumption can be rebutted
only by ‘a compelling showing to the contrary.’ [Citation.]” (Freedom from Religion
Foundation, Inc. v.
Geithner, supra
, 644 F.3d at p. 841.) “‘A difference of opinion
concerning litigation strategy . . . does not overcome the presumption of adequate
representation.’ [Citation.]” (F.T.C. v. Johnson (8th Cir. 2015)
800 F.3d 448
, 452;
accord, League of United Latin American Citizens v. Wilson (9th Cir. 1997)
131 F.3d 1297
, 1306.) Here, the Attorney General is entitled to this presumption, and Dr. Forest
has not rebutted it.
10
In her opening brief, Dr. Forest does not argue that, even if she was not entitled to
mandatory intervention, the trial court abused its discretion by denying her permissive
intervention.7
Belatedly, however, in her reply brief, she argues that the trial court granted
Fairchild mandatory intervention, and thus it must have found that he had an interest in
the action; she claims she has the same interest as Fairchild (see fn. 4, ante), and
therefore she was necessarily entitled to permissive intervention. Once again, she has
forfeited this argument. (Raceway Ford
Cases, supra
, 2 Cal.5th at p. 178.)
Separately and alternatively, however, we reject it because Dr. Forest does not
discuss how the requirements for permissive intervention apply here. As mentioned,
even a person who has an interest in an action can be denied permissive intervention for
several reasons, including that the interests of the original litigants outweigh the concerns
of the intervenor. By denying intervention, the trial court made an implied finding that
one (or more) of these reasons applied. This implied finding is presumed correct. (See
Foreman & Clark Corp. v. Fallon (1971)
3 Cal. 3d 875
, 881.) Dr. Forest does not so
much as try to dispute it. Hence, we do not consider permissive intervention further.
7
In a single sentence, she states that, because she has an interest in the
subject matter of the action, “it was error for the trial court to deny intervention by Forest,
whether mandatory or permissive.” (Italics added.) However, she offers no argument to
support this assertion specifically with regard to permissive intervention. Moreover, the
captions of her brief do not disclose any contention with regard to permissive
intervention. (See Cal. Rules of Court, rule 8.204(a)(1)(B).)
11
Finally, the Ahn parties argue that “[t]he trial court’s ruling should be affirmed . . .
but not for the reasons given by the trial court.” They ask us to hold that “the defense of
the constitutionality of a statute is a public function reserved to the Attorney General.”
Dr. Forest retorts that the Ahn parties lack standing to raise this argument because it is
based on the Attorney General’s rights. Because we are affirming for the reason the trial
court did give, we do not reach these arguments.
In sum, then, we conclude that the trial court did not err in finding that the
Attorney General could adequately represent Dr. Forest’s interest. It therefore did not err
by denying her mandatory intervention. We so conclude regardless of whether the
standard of review is de novo or abuse of discretion.
III
DISPOSITION
The order appealed from is affirmed. In the interests of justice, each side shall
bear its own costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J.
I concur:
MILLER
J.
12
[Ahn v. Hestrin, E073530]
Slough, J., Dissenting.
I think the majority take a far too narrow view of the interests at stake in this
important case. I would recognize that Dr. Forest’s particular interests give her an
important perspective, which the majority’s ruling will sideline. I would therefore reverse
the trial court and direct it to allow Dr. Forest to intervene in the litigation.
A trial court must permit a person to intervene in an action if “[t]he person seeking
intervention claims an interest relating to the property or transaction that is the subject of
the action and that person is so situated that the disposition of the action may impair or
impede that person’s ability to protect that interest, unless that person’s interest is
adequately represented by one or more of the existing parties.” (Code Civ. Proc., § 387,
subd. (d)(1)(B), unlabeled statutory citations refer to this code; see also Siena Court
Homeowners Assn. v. Green Valley Corp. (2008)
164 Cal. App. 4th 1416
, 1423-1424.) The
purpose of allowing intervention is to promote fairness by involving all parties potentially
affected by a judgment, and for that reason the provision should be liberally construed in
favor of intervention. (Lindelli v. Town of San Anselmo (2006)
139 Cal. App. 4th 1499
,
1504-1505.)
Since section 387, subdivision (d)(1)(B) is “in substance an exact counterpart to
rule 24(a) of the Federal Rules of Civil Procedure,” we generally give it the same
meaning, force and effect as federal courts give the federal provision. (Hodge v.
Kirkpatrick Development, Inc. (2005)
130 Cal. App. 4th 540
, 556.) In my view, that would
1
extend to reviewing de novo the denial of a motion for mandatory intervention. (See
Smith v. Marsh (9th Cir. 1999)
194 F.3d 1045
, 1049.)
In this case, there is no dispute Dr. Forest, who treats terminally ill patients, has an
interest in the construction and constitutionality of the End of Life Option Act (EOLOA).
(Health & Saf. Code, §§ 443-443.22.) Nor is there any dispute that the disposition of the
lawsuit in the courts may impair or impede her ability to protect her interests. It is evident
Dr. Forest has an important stake in the litigation. If the courts declare EOLOA
unconstitutional, she will no longer be permitted to provide medical aid in dying. If she
does so anyway, prosecutors could charge her with a criminal offense, potentially a
felony.
More, as I described the last time this case came before us, EOLOA “heavily
regulates the conditions under which an attending physician may prescribe an aid-in-
dying drug. Before doing so, the physician must determine whether the patient is a
qualified individual, has a terminal disease, has the capacity to make medical decisions,
and has made a voluntary request using a form with required content. ([Health & Saf.
Code,] § 443.5, subd. (a).) . . . If the physician determines the patient shows indications
of a mental disorder, they must refer the patient for a mental health specialist assessment.
([Health & Saf. Code,] § 443.5, subd. (a)(1)(A)(i).) The physician must confirm the
patient is making an informed decision by discussing the diagnosis and prognosis,
potential risks and the probable result of ingesting the drug, the possibility they may
obtain the drug but not take it, and other treatment options like comfort care, hospice
2
care, palliative care, and pain control. ([Health & Saf. Code,] § 443.5, subd. (a)(2)(A)-
(E).) They must also discuss with the patient whether they’re feeling coerced or unduly
influenced to confirm the decision was not the result of coercion. ([Health & Saf. Code,]
§ 443.5, subd. (a)(4).)” (People ex rel. Becerra v. Superior Court (2018)
29 Cal. App. 5th 486
, 511-512, conc. & dis. opn. of Slough, J.) If the statute survives the plaintiffs’
constitutional challenges, the courts may be required to construe those and other
regulatory provisions in a manner that would affect Dr. Forest’s ability to perform her
job.
For all these reasons, Dr. Forest has a direct and obvious interest in ensuring
EOLOA is upheld against plaintiffs’ constitutional challenge and also in influencing how
the courts interpret the provisions that govern her profession. The question we face is
whether the district attorney or the Attorney General is an inadequate representative of
her interests. (§ 387 (d)(1)(B).)
It’s not difficult for a would-be intervener to meet that standard. Federal cases
interpreting the nearly identical standard under rule 24 of the Federal Rules of Civil
Procedure require only a minimal showing of differentiated interests. As the United
States Supreme Court has explained, the inadequate representation requirement is
“satisfied if the applicant shows that representation of his interest ‘may be’ inadequate;
and the burden of making that showing should be treated as minimal.” (Trbovich v.
United Mine Workers (1972)
404 U.S. 528
, 538, fn.10.)
3
Federal courts “consider[] three factors in determining the adequacy of
representation: (1) whether the interest of a present party is such that it will undoubtedly
make all of a proposed intervenor’s arguments; (2) whether the present party is capable
and willing to make such arguments; and (3) whether a proposed intervenor would offer
any necessary elements to the proceeding that other parties would neglect.” (Arakaki v.
Cayetano (9th Cir. 2003)
324 F.3d 1078
, 1086.) It’s not necessary for an intervenor to
establish an actual difference in litigation strategy, “[i]t is sufficient for Applicants to
show that, because of the difference in interests, it is likely that Defendants will not
advance the same arguments as Applicants.” (Southwest Ctr. for Biological Diversity v.
Berg (9th Cir. 2001)
268 F.3d 810
, 824 (Southwest Ctr.).)
Here, the district attorney, the Attorney General, and Dr. Forest share the same
objective of protecting EOLOA from a court ruling that completely invalidates the law.
But that isn’t the end of the story. The district attorney and the Attorney General seek to
demonstrate the legitimacy of the statute. However, the timing and legal theory on which
they prevail is of little moment to them. By contrast, Dr. Forest seeks to preserve her own
ability to conduct her practice as she sees fit, within the constraints of her professional
responsibilities, and to provide her terminal patients with end of life treatment that
reduces their pain and suffering. That means she has an interest in obtaining a quick
resolution on the merits so she may assist her current patients secure in the knowledge
that doing so is legal. As someone who is exposed to prosecution absent the protections
of the law, it is important to Dr. Forest that the law prevails because it is judged to be
4
constitutional on the merits. Her role as a physician who is subject to the statute’s
regulatory provisions also means she has a specific interest in how the courts interpret
those restrictions. In all these ways, Dr. Forest’s interests diverge significantly from the
interests of the district attorney and the Attorney General as well as from the individual
patient who succeeded in intervening. (See Californians For Safe & Competitive Dump
Truck Transp. v. Mendonca (9th Cir. 1998)
152 F.3d 1184
, 1190 [“because the
employment interests of IBT’s members were potentially more narrow and parochial than
the interests of the public at large, IBT demonstrated that the representation of its
interests by the named defendants-appellees may have been inadequate”].)
The divergence isn’t just hypothetical. When the plaintiffs petitioned the
California Supreme Court for review of our earlier decision that plaintiffs lacked
standing, the intervenors, including Dr. Forest, asked the Court to reach the merits on the
constitutionality of EOLOA. (Intervenors’ Answer to Petition for Review.) They did so
because a merits ruling in favor of the law would have resulted in a faster resolution of
this case, and immediate certainty about the availability of aid in dying services in the
future. By contrast, the Attorney General opposed having the Supreme Court review the
merits, but instead sought to protect the narrow and possibly temporary victory on
standing. (Attorney General’s Answer to Petition for Review.) This divergence in actual
litigation strategy is just one example, but it shows Dr. Forest clearly has gone well
beyond satisfying the requirement that she show her interests diverge so much that “it is
likely that Defendants will not advance the same arguments as Applicants.” (Southwest
5
Ctr., supra
, 268 F.3d at p. 824, italics added.) It’s not only likely that the district attorney
and Attorney General will not advance the same arguments as Dr. Forest, or that they
won’t litigate with the same urgency, it’s already happened. From this, I conclude the
current parties do not adequately represent Dr. Forest and she’s entitled to intervene as of
right.
The majority rely on the “general presumption that a government entity is an
adequate representative.” (Maj. Opn. ante, at p. 10, citing F.T.C. v. Johnson (8th Cir.
2015)
800 F.3d 448
, 452.) There are two problems with their reliance on this principle
here. First, the presumption applies to a government entity that is “charged with the
responsibility of representing the intervenor’s interests.” (F.T.C. v. Johnson, at p. 452.) In
F.T.C. v. Johnson, a group of consumers were trying to intervene in a lawsuit brought by
the Federal Trade Commission to protect consumers against unfair or deceptive trade
practices. But the Federal Trade Commission is charged specifically with bringing
enforcement actions to protect the interests of consumers. This entitled the agency to a
presumption that they adequately represent the public. The Attorney General is an
organization tasked with the general obligation to protect and enforce the laws of the
State of California. It isn’t their job to protect the legal interests of physicians or any
other group of Californians interested in end of life care.
Second, as the cases applying the presumption acknowledge, even if it did apply
here, “when an agency’s views are necessarily colored by its view of the public welfare
rather than the more parochial views of a proposed intervenor whose interest is personal
6
to it, the burden is comparatively light.” (Kleissler v. United States Forest Serv. (3d Cir.
1998)
157 F.3d 964
, 972.) I would conclude the presumption doesn’t apply in this case,
but if it did, Dr. Forest more than overcame it by establishing a significant and actual
divergence in interests.1
I also believe the majority is wrong to follow the F.T.C. v. Johnson decision by
holding a difference of litigation strategy does not overcome the presumption of adequate
representation. (Maj. opn. ante, at p. 10.) If a difference in litigation strategy arises from
a would-be intervenor’s divergent interests, the law says intervention is mandatory.
(Southwest
Ctr., supra
, 268 F.3d at p. 824; United States v. Oregon (9th Cir. 1988)
839 F.2d 635
, 638 [“We have held that in determining whether rights are being adequately
represented, it is appropriate to examine whether existing parties’ interests are such that
they will make all of the arguments the applicants would make”].)
For all of these reasons, I would reverse the order denying intervention and direct
the court to enter an order allowing Dr. Forest to intervene in this lawsuit.
SLOUGH
J.
1
The majority relies heavily on forfeiture to rule against Dr. Forest, repeatedly
refusing to address arguments she raised in her reply brief in this court. I believe this to
be inappropriate in a case of such public significance. Dr. Forest made these arguments in
the trial court and the other parties are well aware of them. Forfeiture is discretionary and
we can address any perceived unfairness by allowing supplemental briefing. By leaning
on forfeiture so hard, the majority makes its own conclusions look brittle.
7 |
4,639,317 | 2020-12-03 20:08:40.158099+00 | null | http://www.courts.state.ny.us/reporter/3dseries/2020/2020_07306.htm | Stigall v State of New York (2020 NY Slip Op 07306)
Stigall v State of New York
2020 NY Slip Op 07306
Decided on December 03, 2020
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided and Entered: December 03, 2020
Before: Renwick, J.P., Manzanet-Daniels, Mazzarelli, Singh, Scarpulla, JJ.
Claim No. 128335 Appeal No. 12531 Case No. 2020-05474
[*1]Kenneth Stigall et al., Claimants-Appellants,
v
The State of New York, Defendant-Respondent.
Sacks and Sacks, LLP, New York (Scott N. Singer of counsel), for appellants.
Mauro Lilling Naparty, LLP, Woodbury (Seth M. Weinberg of counsel), for respondent.
Order of the Court of Claims of the State of New York (Judith A. Hard, J.), entered November 12, 2019, which denied claimants' motion for partial summary judgment on the issue of liability on their Labor Law §§ 240(1) and 241(6) claims, unanimously reversed, on the law, without costs, and the motion granted.
Claimant Kenneth Stigall was walking on an I-beam during renovation work on a portion of the Major Deegan Expressway, when he tripped on a surveyor's retractable lanyard and fell off the beam. He states that his right shoulder struck the beam on the way down. He also states that his left foot struck a steel deck that was erected about 8 to 10 feet below the beam, before [*2]his body was somehow pulled back up by his lanyard, which was attached to a safety cable above, resulting in his dangling about two feet above the deck. The safety cable to which claimant anchored his lanyard was set up about three feet above the surface of the beam. Claimant alleges that his injuries were caused by the safety cable being positioned too low, preventing the lanyard from properly deploying, and his foot to strike the deck. Defendant State of New York owned the Expressway, and had retained claimant's employer, nonparty Tully Construction, to rehabilitate the structural iron.
Claimant was entitled to summary judgment on the Labor Law § 240(1) claim. The record establishes that the safety devices "proved inadequate to shield the injured worker from harm directly flowing from the application of the force of gravity" (Ross v Curtis—Palmer Hydro—Elec. Co., 81 NY2d 494, 501 [1993]). Specifically, the record shows that the safety cable was set up too low, resulting in claimant's striking the deck before the lanyard could deploy (see Fernandez v BBD Developers, LLC, 103 AD3d 554, 555 [1st Dept 2013]). Indeed, Tully's site safety manager acknowledged that claimant was not provided adequate protection, testifying that, "in theory," if an ironworker was tied off to the safety cable, his body should not strike the deck below. He also stated that if he knew a worker was wearing the same type of lanyard that claimant was wearing, and could potentially strike the deck, he would "take the worker off the location and redesign or get a different piece of equipment." Further, the fact that claimant sustained injuries to his neck and back due to whiplash when his body was caused to be pulled back up abruptly also demonstrates lack of adequate protection (see Lopez v Boston Props. Inc., 41 AD3d 259, 260 [1st Dept 2007]; Kyle v City of New York, 268 AD2d 192, 197—198 [1st Dept 2000], lv denied 97 NY2d 608 [2002]). Defendant's contention that a triable issue of fact exists as to whether the injuries were proximately caused by claimant striking the beam on his way down, or the safety cable's improper height, is unavailing. Although claimant testified that his shoulder struck the beam as he fell, he also testified that the low anchor point resulted in his left foot striking the deck, and his body to sustain injuries due to whiplash.
Although academic, based on our finding on Labor Law § 240(1) (see Bonaerge v Leighton House Condominium, 134 AD3d 648, 650 [1st Dept 2015]), claimant would also be entitled to summary judgment on the Labor Law § 241(6) claim insofar predicated on Industrial Code (12 NYCRR) § 23-1.16(b), which requires the safety devices at issue to "be so arranged that if the user should fall such fall shall not exceed five feet." It is undisputed that claimant fell more than five feet before he struck the deck below. In light of the above, we need not reach the applicability of Industrial Code § 23-1.7(e)(1).
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: December 3, 2020 |
4,639,318 | 2020-12-03 20:08:40.383056+00 | null | http://www.courts.state.ny.us/reporter/3dseries/2020/2020_07305.htm | Savitt v Cantor (2020 NY Slip Op 07305)
Savitt v Cantor
2020 NY Slip Op 07305
Decided on December 03, 2020
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided and Entered: December 03, 2020
Before: Renwick, J.P., Manzanet-Daniels, Mazzarelli, Singh, Scarpulla, JJ.
Index No. 653476/18 Appeal No. 12520 Case No. 2020-02024
[*1]Ephraim Savitt, etc., Plaintiff, Leah Savitt, Plaintiff-Appellant,
v
Mark Cantor et al., Defendants-Respondents. 165 West End Avenue Owners Corporation Nominal Defendant.
Law Office of Ephraim Savitt, New York (Ephraim Savitt of counsel), for appellant.
Braverman Greenspun P.C., New York (Tracy Peterson of counsel), for respondents.
Order, Supreme Court, New York County (Andrew Borrok, J.), entered November 13, 2019, which, to the extent appealed from as limited by the briefs, granted defendants' motion to dismiss the defamation claims, unanimously affirmed, without costs.
The complaint fails to state a cause of action for slander or libel per se, as none of the allegedly defamatory statements made by defendants accuse plaintiff Leah Savitt of ineptitude in her profession, and the complaint does not allege how, if at all, her professional reputation was damaged by the offending statements (see Ferguson v Sherman Sq. Realty Corp., 30 AD3d 288, [*2]289 [1st Dept 2006]). Contrary to plaintiff's contention that the motion court improperly determined on a motion to dismiss that the remarks were not defamatory (except for one, for which no special damages were pleaded), "[w]hether particular words are defamatory presents a legal question to be resolved by the court in the first instance" (Aronson v Wiersma, 65 NY2d 592, 593 [1985]).
We have considered plaintiff's remaining contentions and find them unavailing.THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: December 3, 2020 |
4,622,867 | 2020-11-21 02:51:41.914297+00 | null | null | Marc H. Tanenbaum and Helga Tanenbaum, Petitioners v. Commissioner of Internal Revenue, Respondent
Tanenbaum v. Commissioner
Docket No. 4666-68
United States Tax Court
April 4, 1972, Filed
*152 Decision will be entered under Rule 50.
Held, during the calendar years 1962, 1963, and 1964, petitioner Marc H. Tanenbaum was not employed as a "minister of the gospel" within the meaning of sec. 107, I.R.C. 1954. Held, further, for each of the several disputed deductions claimed by the petitioners for the calendar years 1962, 1963, and 1964, the petitioners have failed to prove that they are entitled to deduct more than allowed by the respondent in his notice of deficiency.
Ira M. Langer and Philip Zimet, for the petitioners.
Kimball K. Ross, for the respondent.
Quealy, Judge.
QUEALY
*1 The respondent has determined deficiencies in the Federal income tax of the petitioners as follows:
YearDeficiency
1962$ 1,658.31
19631,813.82
19641,287.29
Concessions and agreements having been made by the parties, the questions for decision are:
(1) During the years at issue, whether petitioner Marc H. Tanenbaum received a parsonage allowance as a "minister of the gospel" so as to be entitled to the exclusion from gross income provided for in section 107. 1
(2) During the calendar years 1962*154 and 1963, whether the petitioners are entitled to a deduction in excess of the amounts claimed and deducted on their Federal income tax returns for such years as a result of expenditures incurred in purchasing professional publications.
(3) During the calendar year 1963, whether the petitioners are entitled to a deduction within the provisions of section 162 in the total amount of $ 446.17 due to expenditures incurred on certain trips made by petitioner Marc H. Tanenbaum.
*2 If we find for the petitioners on the first issue, then in each of the years in issue we must also determine the total amount of the expenditures excludable from gross income within the meaning of section 107 as expenses incurred in order to "rent or provide a home."
On the other hand, if we find for the respondent on the first issue, then in each of the years in issue we must also determine whether the amount deducted by the petitioners for expenses incurred in operating an office within the petitioners' apartment was proper. This determination, in turn, involves a determination as to the correct portion of the petitioners' apartment devoted to business office use.
In addition, if we decide for the respondent*155 on the first issue, then we must also determine whether the amount deducted by the petitioner for telephone calls made by him in the ordinary course of his business was proper.
For each of the years at issue, the medical deduction allowable to the petitioners will be controlled by their adjusted gross income for those years, as determined by the decisions reached in this case.
FINDINGS OF FACT
Some of the facts have been stipulated. The stipulation of facts and exhibits attached thereto are incorporated herein by this reference.
Marc H. Tanenbaum and Helga Tanenbaum are husband and wife who filed joint income tax returns for the taxable years 1962, 1963, and 1964 with the district director of internal revenue, New York, N.Y. At the time of the filing of the petition herein, they resided in Jackson Heights, N.Y. Helga Tanenbaum is a party to this action solely by virtue of having filed a joint return; consequently, Marc H. Tanenbaum will hereinafter be referred to as the petitioner.
The petitioner is an ordained rabbi of the Jewish faith. After receiving his ordination in 1950, the petitioner was employed as the executive vice president of the Synagogue Council of America, which*156 is a coordinating body of the major branches of Judaism. He continued at that position until 1960.
From 1960 to the present time, including all the years at issue, the petitioner has been employed by the American Jewish Committee as its national director of Interreligious Affairs. Also during the years in issue, the petitioner was a member of a large number of religious and rabbinical organizations. Included among these organizations were the Rabbinical Assembly of America, the New York Board of Rabbis, the Synagogue Council of America, the American Academy of Religion, the Society for the Scientific Study of Religion, the American Academy of Religion and Mental Health, and the American Association of Church Historians.
*3 The American Jewish Committee, incorporated in 1911, is an organization formed with the following objectives, as provided in its charter:
to prevent the infraction of the civil and religious rights of Jews, in any part of the world; to render all lawful assistance and to take appropriate remedial action in the event of threatened or actual invasion or restriction of such rights, or of unfavorable discrimination with respect thereto; to secure for Jews *157 equality of economic, social and educational opportunity; to alleviate the consequences of persecution and to afford relief from calamities affecting Jews, wherever they may occur; and to compass these ends to administer any relief fund which shall come into its possession or which may be received by it, in trust or otherwise, for any of the aforesaid objects or for purposes comprehended therein.
Any citizen of the United States who declares himself to be a Jew may become a member of the American Jewish Committee, upon payment of the required membership dues. Such citizen need not be an active participant in Jewish religious worship. Indeed, he could even be an active member of another religious faith. 2
The membership of the American Jewish Committee selects both its officers and board of delegates. In turn, the officers and board of delegates*158 constitute the membership of the executive council of the American Jewish Committee. The business affairs of the American Jewish Committee are conducted by said executive council, which meets twice a year, and by a board of governors, appointed by said executive council, which meets on a much more frequent basis.
No synagogue or group of rabbis controls the operation of the American Jewish Committee; rather, the ultimate authority in this regard resides with its membership.
At the time of trial, the total membership of the American Jewish Committee was approximately 40,000 individuals. Traditionally, these members have been civic leaders in many of this country's communities.
In 1956, the attorney general of the State of New York ruled that under the social welfare laws of that State the American Jewish Committee came within the definitional language of "other religious agencies or organizations." In this opinion, the attorney general listed the activities of the American Jewish Committee to be as follows:
(1) continual investigation and exposure of organized anti-semites and other subversives; (2) countering anti-democratic propaganda with accurate information to the American people*159 through radio, press, motion pictures, books and pamphlets, speakers and discussion groups; (3) enlisting in the fight against prejudice the cooperation of editors, publishers, labor and industrial leaders, *4 veterans and youth leaders, ministers and educators; (4) initiating and supporting legal measures against discrimination or segregation in employment, education, housing, and the use of public accommodations; (5) determining, through scientific research and study, the origin and causation of prejudice, how it operates, and what can be done to eradicate it; (6) assisting local community relations organizations to counteract prejudice and discrimination in their communities; (7) organizing and strengthening AJC chapters in strategic cities throughout the country for the purpose of enlisting Jewish leadership and support for this program.
The organization also attempts to convey to the American public their interpretation of international problems involving Jews. In the past few years, its attentions in this regard have been focused primarily upon the alleged persecution of Soviet Jews and upon Israeli problems in the Middle East.
The American Jewish Committee also annually*160 publishes a year-book, which records the events and trends in Jewish life throughout the world, and organizes various colloquiums to discuss new methods of pursuing Jewish education in the United States.
During the years at issue, the American Jewish Committee was departmentalized as follows:
(1) Library of Jewish Information
(2) Public Information and Education Division
(3) Community Activities Department
(4) Foreign Affairs Department
(5) Commentary Department
(6) Department of Inter Group Regulations and Social Action
(7) Jewish Community Services Department
(8) Interreligious Affairs Department
As the national director of Interreligious Affairs for the American Jewish Committee, the petitioner's principal function is to interpret the basic tenets of Judaism to the Christian leadership and the Christian community, as well as interpreting the relationship of Christianity to Judaism within the Jewish community. This work involves him in study, research, lectures, seminars, and conferences with representatives of churches and synagogues, and requires close contact and work with Jewish and Christian clergymen and theologians.
In addition to his interreligious work, described *161 above, petitioner sometimes performs religious functions for the individual employees and members of the American Jewish Committee. These functions have included officiating at various weddings, funerals, and religious ceremonies, counseling individuals with particular religious problems, and the performance of such other duties as the conducting of prayer services, deliverance of invocations and benedictions at appropriate occasions. These acts are not and have never been required of him in the performance of his duties as the national director of Interreligious Affairs.
*5 In 1929, the American Jewish Committee requested and received from the Commissioner of Internal Revenue an exemption from Federal income taxes as an educational and charitable organization under the then applicable section of the Internal Revenue Code.
In 1951, after a review of the exempt status, the Commissioner of Internal Revenue determined that the American Jewish Committee was exempt from Federal income taxes under section 101(6) of the Internal Revenue Code of 19393 as an organization organized and operated exclusively for education purposes. This was the status of the organization during the years*162 at issue.
The Jewish religion is essentially lay oriented. It does not have an ecclesiastical structure comparable in role and function to that which exists in the Catholic community and also in many Protestant communities.
The traditional framework of the Jewish community is the local "kehillah," which, in Hebrew, is approximately definitive of the phrase "Jewish community." The kehillah binds together all Jews in the community. The actual association is implemented on the basis of ancient Talmudic law, which in turn derives its validity from the attachment of the members of the Jewish community to a common Jewish tradition.
The leadership of the Jewish community is essentially a lay leadership in partnership with the religious leadership. Each local kehillah hires a rabbi to be the spiritual teacher and leader of its congregation. The rabbi bears authority on the basis of his mastery of Jewish tradition and religious law -- mastery which, in the *163 present day, is derived from years of study in various religious seminaries. By virtue of his authority, the rabbi represents the kehillah in its relation with outside bodies and other religious sects.
During 1962, the petitioner and his family lived for a portion of the year in a five-room apartment, which consisted of a living room, dining room, kitchen, bedroom, and office. The office was used by the petitioner to do work, some of which was either directly or indirectly connected with his position on the American Jewish Committee.
During the latter part of 1962, the petitioner and his family moved into a seven-room apartment. He continued to reside in this apartment for the remainder of the years in issue. Beginning in 1962 and continuing through 1964, he had his apartment renovated, turning two of the rooms of the apartment into an office and library, respectively. Some of the work and research done by the petitioner there was either directly or indirectly related to his position on the American Jewish Committee.
During the calendar years 1963 and 1964, the petitioner rented two *6 cabins for the summer. One of these cabins was used by him and his family as a summer *164 residence; the other cabin was used by the petitioner as a retreat to write a book.
During the calendar years 1962 and 1963, the petitioner purchased various professional periodicals and books for use in his professional activities. On his Federal income tax returns for those years, he claimed deductions for such expenses in the amount of $ 245 and $ 207.95, respectively. The respondent did not and does not presently dispute this claim.
During the calendar year 1963, the petitioner incurred expenses in the total amount of $ 446.17 with respect to trips that he considered to be indirectly related to his employment with the American Jewish Committee. These expenses were not reimbursed to him by the American Jewish Committee.
During each of the years in issue, $ 5,000 of the amount paid to the petitioner by the American Jewish Committee for his services was specified and identified by the employer to be a "parish allowance." The petitioner treated the amount of $ 5,000 as a parsonage allowance within the meaning of section 107 and excluded that amount from his Federal income tax returns in each of those years.
In addition to claiming an exclusion of $ 5,000 under section 107, for each*165 of the years in issue, the petitioner deducted on his Federal income tax returns certain expenditures which, if the exclusion is allowable, would be a part of the amount excluded. The amounts claimed by the petitioner on his returns are as follows:
Expenses196219631964
Rent$ 547.07$ 1,052.15$ 916.38
Telephone234.27283.31505.92
Alterations1,731.481,364.69678.55
Electrical36.0036.7553.73
Insurance108.55
Totals2,548.822,736.902,263.13
In his notice of deficiency, the respondent disallowed the exclusion of $ 5,000 claimed by the petitioner. In addition, the respondent made the following adjustments to the taxable income reported by the petitioner during the years at issue:
(1) Respondent disallowed portions of the deductions claimed by the petitioner during each of the years at issue for rental expense, determining that such disallowed deductions had not been substantiated.
(2) For the calendar year 1963, respondent disallowed the deduction claimed by the petitioner as professional travel expenses, determining that such disallowed item had not been substantiated.
*7 (3) For the calendar year 1964, respondent disallowed*166 50 percent of the deduction claimed by the petitioner as telephone expenses.
OPINION
The principal issue in this case is whether the petitioner during the years at issue was entitled to an exclusion from gross income of $ 5,000 as a parsonage allowance under section 107.
During the years at issue, the petitioner was employed by the American Jewish Committee as its national director of Interreligious Affairs. In its contract of employment with the petitioner, the American Jewish Committee provided for an annual "parish allowance" in the amount of $ 5,000. Petitioner contends that in each of the years in issue he is entitled to exclude from gross income this $ 5,000 as provided for under section 107.
On the other hand, the respondent contends that the petitioner is not entitled to exclude under section 107 any part of his compensation from the American Jewish Committee because he was not employed by a religious organization to perform ministerial functions. Respondent concedes that the petitioner was, and is, an "ordained minister." Cf. Abraham A. Salkov, 46 T.C. 190 (1966); David Silverman, 57 T.C. 727">57 T.C. 727 (1972). However, *167 respondent contends that (1) the American Jewish Committee is a secular organization and (2) the services rendered by the petitioner to the American Jewish Committee are not ordinarily the duties of a minister of the gospel "in the exercise of his ministry" as defined in sections 1.107-1(a) and 1.1402(c)-5, Income Tax Regs. Therefore, he concludes that the petitioner is not entitled to exclude the "parish allowance" from his gross income. We agree with the respondent.
Section 107 provides:
SEC. 107. RENTAL VALUE OF PARSONAGES.
In the case of a minister of the gospel, gross income does not include --
(1) the rental value of a home furnished to him as part of his compensation; or
(2) the rental allowance paid to him as part of his compensation, to the extent used by him to rent or provide a home.
Section 1.107-1(a), Income Tax Regs., provides in pertinent part as follows:
In order to qualify for the exclusion, the home or rental allowance must be provided as remuneration for services which are ordinarily the duties of a minister of the gospel. In general, the rules provided in § 1.1402(c)-5 will be applicable to such determination. * * *
In turn, section 1.1402(c)-5(b)(2), *168 Income Tax Regs., sets forth three basic tests to be used in determining the duties of a "minister of the *8 gospel" that will so qualify. They are as follows: (1) "the ministration of sacerdotal functions and the conduct of religious worship"; (2) "the control, conduct, and maintenance of religious organizations (including the religious boards, societies, and other integral agencies of such organizations), under the authority of a religious body constituting a church or church denomination"; and (3) service performed "for an organization which is neither a religious organization nor operated as an integral agency of a religious organization," but which is "pursuant to an assignment or designation by a religious body constituting his church." The petitioner does not qualify for the exclusion under any of these tests.
The petitioner was not hired to perform "sacerdotal functions" or to conduct "religious worship"; rather, his job is to encourage and promote understanding of the history, ideals, and problems of Jews by other religious groups. Any other functions he may perform are by virtue of his own personal desires but are not cause for remuneration by the American Jewish *169 Committee.
Further, the American Jewish Committee is clearly not a "religious organization." Its charter and its activities reveal conclusively that its aims are educational. The organization has never claimed otherwise, having asked for and having received tax-exempt status as an "educational organization" for many years under the provisions of section 501(c)(3). We are not impressed by the petitioner's assertion that membership in the organization is limited to Jews. We do not believe that this is, in itself, determinative of the character of the organization. In any case, the American Jewish Committee is limited to Jews only in the broadest sense. Anyone who declares himself to be a Jew and pays the membership dues can be a member of the organization.
In addition, the petitioner was not assigned to the American Jewish Committee by any religious body constituting his "church." In accepting his position with the American Jewish Committee, he functioned as an independent contractor, separate and apart from any association with a religious group.
The petitioner argues that the third test cannot be met by him because the Jewish faith does not have a hierarchal order, and consequently, *170 does not assign rabbis to occupy positions such as his. He contends that this test focuses primarily upon the type of activity involved and that his work with the American Jewish Committee is of a type covered by the regulation. We cannot agree. The third test unequivocally requires that the petitioner be working "pursuant to an assignment or designation by a religious body constituting his church," sec. 1.1402(c)-5(b)(2)(v), Income Tax Regs., and in the instant case the petitioner clearly was not.
*9 Moreover, and without regard to the regulations, we are convinced that the type of activity conducted by the petitioner in his position with the American Jewish Committee was not a ministerial function within the intendment of the statute. The petitioner's primary function for the American Jewish Committee was in the nature of public relations. He was hired to improve the image of Jews in the eyes of non-Jews throughout the country. The American Jewish Committee did not need to hire a rabbi to perform this task. Indeed, it appears that a theologian learned in Judaism could have performed the same function equally as well. Although the fact that the petitioner is an ordained*171 rabbi may have been of some aid to him in his work, in our minds this is not enough to cause him to be considered a "minister of the gospel" for the purposes of section 107 during the years at issue.
In the alternative, petitioner contends that the Commissioner's regulations are discriminatory in denying to him the exclusion solely because his religious faith has no established hierarchy. Consequently, he contends that such regulations are unconstitutional as a violation of the "equal protection" clause of the United States Constitution. 4 We need not decide this question. We would deny the petitioner the exclusion in this case irrespective of the regulations.
*172 Having thus determined that during the years at issue the petitioner was not entitled to an exclusion from gross income as provided by section 107, we must also consider issues involving claimed deductions by the petitioner during those years. These issues involve amounts allowable as deductions by the petitioner for an office within his apartment, for telephone calls made in the ordinary course of his business, for the purchase of professional publications, and for certain trips made by the petitioner, and alleged by him to have been made in the ordinary course of his business. The Commissioner has completely denied the claimed deductions for the trips. For each of the other items, the dispute between the parties involves the correct amounts allowable as deductions during the years at issue. 5 Concerning the phone and business publications expenses, the petitioner alleges deductions *10 in excess of those originally claimed on his Federal income tax returns.
*173
The determination of the respondent, of course, has the presumption of correctness. Rule 32, Tax Court Rules of Practice; Helvering v. Taylor, 293 U.S. 507">293 U.S. 507 (1935). For each of the disputed items, we have concluded that the petitioner has not met his burden of rebutting this presumption. His evidence is vague and uncertain, consisting almost entirely of his own oral testimony unsubstantiated by documentary evidence. He did not even present arguments concerning these issues in brief. The petitioner has therefore not substantiated his claims, and we find and hold that the Commissioner's original determinations, as shown in his notice of deficiency, are correct.
Decision will be entered under Rule 50.
Footnotes |
4,639,302 | 2020-12-03 20:00:33.649653+00 | null | http://www.ca4.uscourts.gov/Opinions/204029.U.pdf | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 20-4029
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
GARRY HINES,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern District of North Carolina, at
Wilmington. James C. Dever III, District Judge. (7:18-cr-00132-D-2)
Submitted: November 20, 2020 Decided: December 3, 2020
Before AGEE, WYNN, and RICHARDSON, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Robert L. Cooper, COOPER, DAVIS & COOPER, Fayetteville, North Carolina, for
Appellant. Robert J. Higdon, Jr., United States Attorney, Jennifer P. May-Parker, Assistant
United States Attorney, Kristine L. Fritz, Assistant United States Attorney, OFFICE OF
THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Garry Hines pled guilty to two counts of distribution of a quantity of heroin and one
count of possession of heroin with intent to distribute, all in violation of 21 U.S.C.
§ 841(a)(1), (b)(1)(C). The district court sentenced Hines to 276 months’ imprisonment.
On appeal, Hines argues that the district court erred when it refused to reduce his offense
level for acceptance of responsibility and that the court sentenced him in excess of the
statutory maximum. We affirm.
First, under U.S. Sentencing Guidelines Manual § 3E1.1 (2018), a district court is
instructed to decrease a criminal defendant’s offense level by 2 levels if the defendant
“clearly demonstrates acceptance of responsibility for his offense,” and to decrease it by
an additional level if the government files a motion and the offense level prior to the 2-level
reduction was 16 or higher. To earn the reduction, “[t]he defendant bears the burden of
showing he has clearly recognized and affirmatively accepted personal responsibility for
his criminal conduct.” United States v. Carver,
916 F.3d 398
, 404 (4th Cir.), cert. denied,
140 S. Ct. 197
(2019) (internal quotation marks omitted).
The commentary to the Guidelines provides a non-exclusive list of “appropriate
considerations” to determine whether a defendant is entitled to an acceptance of
responsibility reduction. USSG § 3E1.1 cmt. n.1. Most relevant to this appeal, a reduction
should be given if the defendant “truthfully admit[s] the conduct comprising the offense(s)
of conviction, and truthfully admit[s] or [does] not falsely deny[] any additional relevant
conduct for which the defendant is accountable.” USSG § 3E1.1 cmt. n.1(A). On the other
hand, “a defendant who falsely denies, or frivolously contests, relevant conduct that the
2
court determines to be true has acted in a manner inconsistent with acceptance of
responsibility.” USSG § 3E1.1 cmt. n.1(A); see
Carver, 916 F.3d at 404
(noting that
“[p]leading guilty is not enough, by itself,” to support reduction). We have reviewed the
record and discern no error, clear or otherwise, in the district court’s determination that
Hines’ offense level should not be reduced for acceptance of responsibility because he
falsely denied relevant conduct. See United States v. Hargrove,
478 F.3d 195
, 198 (4th
Cir. 2007) (recognizing that district court’s acceptance of responsibility determination is
reviewed for clear error as “district courts are uniquely qualified to evaluate whether to
grant or deny a sentence reduction for acceptance of responsibility”).
Hines also asserts that he received a sentence in excess of the statutory maximum.
Because Hines failed to present this claim to the district court, it is reviewed only for plain
error. United States v. Harris,
890 F.3d 480
, 490 (4th Cir. 2018). Under this standard, this
court “will correct an unpreserved error if (1) an error was made; (2) the error is plain;
(3) the error affects substantial rights; and (4) the error seriously affects the fairness,
integrity, or public reputation of judicial proceedings.”
Id. at 491
(internal quotation marks
omitted). In the sentencing context, an error affects substantial rights if the defendant can
“show that he would have received a lower sentence had the error not occurred.” United
States v. Knight,
606 F.3d 171
, 178 (4th Cir. 2010).
Hines correctly notes that the statutory maximum penalty for each count of
conviction was 240 months’ imprisonment. 18 U.S.C. § 841(b)(1)(C). Thus, the district
court plainly erred in sentencing Hines to 276 months’ imprisonment on each of those
counts. However, Hines has failed to demonstrate that this error affected his substantial
3
rights. Where, as here, a defendant is convicted on multiple counts and the Guidelines
range “exceeds the statutory maximum of the most serious offense of conviction,” the
district court may, under USSG § 5G1.2(d), “impose consecutive terms of imprisonment
to the extent necessary to achieve the total punishment.” United States v. Angle,
254 F.3d 514
, 518 (4th Cir. 2001) (discussing mandatory Guidelines and finding no plain error); see
also United States v. Allen,
491 F.3d 178
, 194-95 (4th Cir. 2007); United States v. Chase,
296 F.3d 247
, 250 (4th Cir. 2002). Therefore, had the court recognized the 20-year
statutory maximum for each count of conviction, the court could have achieved a
Guidelines sentence by imposing a term of imprisonment of 240 months on one count and
ordering the terms on the remaining counts to be served consecutively to achieve the total
Guidelines punishment. Because the aggregate statutory maximum on all counts of
conviction was 720 months’ imprisonment, see § 841(b)(1)(C), and the district court could
have lawfully imposed the sentence Hines ultimately received by imposing consecutive
terms of imprisonment totaling 276 months, the error does not affect Hines’ substantial
rights. See
Angle, 254 F.3d at 518-19
; see also
Knight, 606 F.3d at 178
. Thus, Hines’
claim fails to meet the standards of plain error review.
Accordingly, we affirm the district court’s judgment. We dispense with oral
argument because the facts and legal contentions are adequately presented in the materials
before this court and argument would not aid the decisional process.
AFFIRMED
4 |
4,639,303 | 2020-12-03 20:00:34.38752+00 | null | http://www.ca4.uscourts.gov/Opinions/187239.P.pdf | PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 18-7239
PHILLIP VANCE SMITH, II,
Petitioner - Appellant,
v.
JOSH STEIN; ERIK A. HOOKS,
Respondents - Appellees.
Appeal from the United States District Court for the Eastern District of North Carolina, at
Raleigh. Terrence W. Boyle, Chief District Judge. (5:17-hc-02103-BO)
Submitted: November 2, 2020 Decided: December 3, 2020
Before NIEMEYER, MOTZ, and RICHARDSON, Circuit Judges.
Affirmed by published opinion. Judge Motz wrote the opinion, in which Judge Niemeyer
and Judge Richardson joined.
Ashley P. Peterson, Brian D. Schmalzbach, MCGUIREWOODS LLP, Richmond,
Virginia, for Appellant. Joshua H. Stein, Attorney General, Sandra Wallace-Smith, Special
Deputy Attorney General, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh,
North Carolina, for Appellees.
DIANA GRIBBON MOTZ, Circuit Judge:
Phillip Vance Smith, II, appeals the dismissal of his 28 U.S.C. § 2254 petition as
untimely. Smith contends that McCoy v. Louisiana,
138 S. Ct. 1500
(2018), extended his
limitations period by recognizing a new constitutional right retroactively applicable to
cases on collateral review. See 28 U.S.C. § 2244(d)(1)(c). For the reasons that follow, we
reject this argument and affirm the judgment of the district court.
I.
In 2001, Smith killed a man during the commission of a drug deal, and the State of
North Carolina charged him with first-degree murder. At trial, Smith testified that he acted
in self-defense. Prior to closing arguments, Smith’s counsel told Smith that, given this trial
testimony, counsel felt he “had no choice” but to tell the jury that Smith was guilty of
felony murder. Smith contends, and Respondents do not contest, that Smith informed his
lawyer that he “flat out” “did not agree with him telling the jury [Smith] was guilty of
anything.”
Defense counsel nevertheless told the trial court that he had “talked about it with
Mr. Smith” and that Smith “ha[d] no objection to me arguing that he is in fact guilty as
charged with respect to the felony murder aspect.” When the trial court sought
confirmation from Smith, he said, “if he has got to do it, he has got to do it. If he doesn’t,
I don’t think he should.” A bench conference followed, and the case proceeded to closing
arguments, during which Smith’s counsel did inform the jury that Smith was guilty of first-
degree felony murder. The jury found Smith guilty of murder “[o]n the basis of malice,
2
premeditation, and deliberation,” as well as felony murder. The court sentenced Smith to
life imprisonment without the possibility of parole.
Smith filed a direct appeal, which the Supreme Court of North Carolina denied on
December 4, 2003. On November 10, 2004, Smith filed a timely state postconviction
motion for appropriate relief, which the North Carolina Superior Court denied. Smith did
not appeal, and the Superior Court’s decision became final on March 4, 2005.
In 2016, Smith filed a second motion for appropriate relief, raising four grounds,
including the claim that his trial counsel provided ineffective assistance by admitting to the
jury, without Smith’s consent, that Smith was guilty of felony murder. The state trial court
denied the motion, and the state appellate courts affirmed.
In 2017, Smith filed a federal habeas petition, again raising this claim. The district
court denied the petition as untimely, and Smith noted this appeal. 1
II.
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) imposes a
one-year statute of limitations on all federal habeas petitions filed by persons in custody
pursuant to the judgment of a state court. See 28 U.S.C. § 2244(d). Smith’s statutory
period under AEDPA began to run when Smith’s conviction became final on March 3,
2004, 90 days after the Supreme Court of North Carolina denied his petition for
discretionary review. See 28 U.S.C. § 2244(d)(1)(A). This one-year statute of limitations
was briefly tolled when Smith sought further review in state court between November 2004
1
We express our thanks to Smith’s court-appointed appellate counsel, Ashley P.
Peterson and Brian D. Schmalzbach, for their excellent briefs.
3
and March 2005, but the AEDPA statute of limitations ultimately expired on June 25, 2005.
Because Smith did not file the instant petition until 2017, absent any extension in this
limitations period, Smith’s petition was untimely.
Smith argues that the Supreme Court’s issuance of McCoy v. Louisiana,
138 S. Ct. 1500
(2018), provides the basis for such an extension of the limitations period. In McCoy,
the Court held that the Sixth Amendment guarantees a defendant the right to choose the
objective of his defense and to insist that his counsel refrain from admitting guilt. The
McCoy Court explained that this right exists even when a defendant’s counsel concludes
that confessing guilt offers the defendant the best chance to avoid the death penalty.
McCoy had “vociferously insisted that he did not engage in the charged acts and
adamantly objected to any admission of guilt.”
Id. at 1505.
But at the guilt phase, and
again at the penalty phase, of McCoy’s capital trial, the trial court permitted defense
counsel to concede McCoy’s guilt.
Id. at 1506–07.
The trial court reasoned that it was the
attorney’s task to determine how to best present his client’s case.
Id. The Supreme Court
rejected this rationale and reversed, holding that the right to
counsel under the Sixth Amendment includes a right to “[a]utonomy to decide that the
objective of the defense is to assert innocence.”
Id. at 1508.
Although “[t]rial management
is the lawyer’s province,” counsel is “still an assistant” to the defendant and “may not
override [her client’s objections] by conceding guilt.”
Id. 1508–09
(citation and internal
quotation marks omitted). Therefore, once a defendant “communicate[s] [his objection] to
court and counsel, . . . a concession of guilt should [be] off the table.”
Id. at 1512.
The
4
Court further concluded that a violation of this right constitutes structural error and requires
“a new trial without any need first to show prejudice.”
Id. at 1511.
Smith contends that McCoy recognized a new rule of constitutional law retroactively
applicable to his case that effectively extended the AEDPA limitations period for one year.
Federal law provides that the limitations period for a habeas petition runs from “the date
on which the constitutional right asserted was initially recognized by the Supreme Court,”
but only “if the right has been newly recognized by the Supreme Court and made
retroactively applicable to cases on collateral review.” 28 U.S.C. § 2244(d)(1)(C). Thus,
to obtain the benefit of this limitations period, a habeas petitioner must demonstrate (1) that
the Supreme Court recognized a new right; and (2) that the right has been made
retroactively applicable to cases on collateral review. We turn to the question of whether
Smith has made that showing.
III.
The principles articulated in Teague v. Lane,
489 U.S. 288
(1989), and its progeny
guide our analysis of this question. In Teague, the Supreme Court set forth the framework
for determining whether a rule it has announced should be applied retroactively to final
judgments in criminal cases.
Id. at 310.
Under Teague, “an old rule applies both on direct
and collateral review, but a new rule is generally applicable only to cases that are still on
direct review.” Whorton v. Bockting,
549 U.S. 406
, 416 (2007) (citing Griffith v. Kentucky,
479 U.S. 314
(1987)). However, a “new rule” applies retroactively in a collateral
proceeding if the rule is substantive, rather than procedural, or if it is a “‘watershed rul[e]
of criminal procedure’ implicating the fundamental fairness and accuracy of the criminal
5
proceeding.”
Id. (alteration in original)
(quoting Saffle v. Parks,
494 U.S. 484
, 495 (1990));
see also
Teague, 489 U.S. at 307
. The parties recognize that the McCoy rule is not
substantive. Accordingly, to be retroactively applicable it must be both a “new rule” and
a “watershed rule.”
A.
As to the first of these requirements, “a case announces a new rule if the result was
not dictated by precedent,”
Teague, 489 U.S. at 301
— that is, the rule would not have
been “apparent to all reasonable jurists,” Lambrix v. Singletary,
520 U.S. 518
, 528 (1997).
“In general, . . . a case announces a new rule when it breaks new ground or imposes a new
obligation on the States or the Federal Government.”
Teague, 489 U.S. at 301
.
Prior to McCoy, the Supreme Court had viewed a lawyer’s concession of guilt as a
tactical choice that counsel could make — in the absence of her client’s consent — without
exceeding constitutional limitations. In Florida v. Nixon, the Court had determined that
the Constitution does not bar counsel from conceding a capital defendant’s guilt at trial
“when [the] defendant, informed by counsel, neither consents nor objects.”
543 U.S. 175
,
178 (2004). 2 Rejecting “a blanket rule demanding defendant’s explicit consent,” Nixon
unanimously determined that such an admission was not automatically prejudicial
ineffective assistance of counsel.
Id. at 192. 2
The Supreme Court’s decision in Nixon was issued in November 2004, a few
months after Smith’s conviction became final in March 2004. However, Smith maintains,
and Respondents do not contest, that Nixon reflects the “legal landscape” that existed at
the time of Smith’s conviction. See Beard v. Banks,
542 U.S. 406
, 411 (2004).
6
The McCoy Court specifically stated that Nixon’s holding was “not . . . contrary” to
its holding because “Nixon never asserted” that he opposed counsel’s proposed
approach. 138 S. Ct. at 1509
. This might suggest that the Court did not regard McCoy as recognizing
a new rule. But the Supreme Court has explained that the fact that it has said a “decision
is within the ‘logical compass’ of an earlier decision, or indeed that it is ‘controlled’ by a
prior decision, is not conclusive” as to whether the decision recognizes a new rule. Butler
v. McKellar,
494 U.S. 407
, 415 (1990). The McCoy majority did not cite any controlling
precedent as dictating its holding. Moreover, unlike Nixon, which had followed the logic
of Strickland v. Washington,
466 U.S. 668
(1984), McCoy rejected arguments that the
ineffective-assistance-of-counsel line of cases governs when a client voices his objection.
Instead, “[b]ecause a client’s autonomy, not counsel’s competence, is in issue,” McCoy
placed conceding guilt as among the types of decisions reserved for clients under the Sixth
Amendment. 138 S. Ct. at 1511
; see also
id. at 1508–09
(“Some decisions [] are reserved
for the client — notably, whether to plead guilty, waive the right to a jury trial, testify in
one’s own behalf, and forgo an appeal. Autonomy to decide that the objective of the
defense is to assert innocence belongs in this . . . category.”) (citation omitted).
McCoy might also be considered a new rule because it appears to have been
“susceptible to debate among reasonable minds.”
Butler, 494 U.S. at 415
. The Louisiana
Supreme Court determined in McCoy itself that counsel had taken “a reasonable course of
action,” that “constitute[d] reasonable trial strategy.” State v. McCoy,
218 So. 3d 535
, 566,
572 (La. 2016). And Justice Alito noted in dissent, the McCoy rule appears to be a “newly
7
discovered constitutional right” that “made its first appearance,” in that decision. 138 S.
Ct. at 1514, 1518 (Alito, J., dissenting).
However, we need not here resolve this issue, see, e.g., United States v. Mathur,
685 F.3d 396
, 398–99 (4th Cir. 2012), because in all events McCoy did not establish a
watershed rule.
B.
A watershed rule of criminal procedure is one that “requires the observance
of ‘those procedures that . . . are implicit in the concept of ordered liberty.’”
Teague, 489 U.S. at 307
(alteration in original) (quoting Mackey v. United States,
401 U.S. 667
, 693
(1971) (Harlan, J., concurring)). For a new procedural rule to be “watershed,” it (1) “must
be necessary to prevent an impermissibly large risk of an inaccurate conviction” and
(2) “alter our understanding of the bedrock procedural elements essential to the fairness of
a proceeding.”
Whorton, 549 U.S. at 418
(internal quotation marks omitted).
The McCoy rule may well be necessary to prevent an impermissibly large risk of an
inaccurate conviction. McCoy itself recognized that “a jury would almost certainly be
swayed by a lawyer’s concession of his client’s guilt,” and that “the effects of the admission
would be immeasurable.”
McCoy, 138 S. Ct. at 1511
. Indeed, the Supreme Court held the
McCoy error structural, requiring a new trial in all cases on direct appeal. Id.; see also
Mickens v. Taylor,
535 U.S. 162
, 166 (2002) (“[W]here assistance of counsel has been
denied entirely or during a critical stage of the proceeding . . . the likelihood that the verdict
is unreliable is so high that a case-by-case inquiry is unnecessary.”). Unlike cases in which
procedural rights do not directly pertain to “accuracy in the fact-finding process,” see, e.g.,
8
Mathur, 685 F.3d at 400
, the denial of representation creates a risk of an unreliable verdict
which “is intolerably high.”
Whorton, 549 U.S. at 419
.
But the watershed-rule requirement instituted in Teague also demands that a new
rule must alter our understanding of “essential” and “bedrock procedural
element[s].” 489 U.S. at 315
. It is “not enough” “[t]hat a new procedural rule is ‘fundamental’ in some
abstract sense.” Schriro v. Summerlin,
542 U.S. 348
, 352 (2004). Nor is it sufficient that
a new rule “is based on a ‘bedrock’ right.” Whorton, 549 U.S at 420–21. The requirement
is “extremely narrow,”
Schriro, 542 U.S. at 352
, and the Supreme Court has never found a
new procedural rule to be “watershed” even though it has considered the question more
than a dozen times. See, e.g.,
Whorton, 549 U.S. at 418
(collecting cases).
The one decision that the Court has suggested “might fall within this exception” is
Gideon v. Wainwright,
372 U.S. 335
(1963), which incorporated the Sixth Amendment
right to counsel against the states and held that an indigent defendant in a criminal case has
the right to have counsel appointed for him.
Beard, 542 U.S. at 417
. Before the institution
of the “watershed” requirement in Teague, the Supreme Court repeatedly addressed rules
derived from Gideon — like the right to counsel at plea hearings, the right to counsel at
probation revocation hearings, the right to counsel on appeal, and the right to counsel at
any prosecution leading to actual imprisonment — and held them retroactively applicable.
Arsenault v. Massachusetts,
393 U.S. 5
, 6 (1968); McConnell v. Rhay,
393 U.S. 2
, 3–4
(1968); Berry v. City of Cincinnati,
414 U.S. 29
, 29–30 (1973). But under the analysis
required by Teague, Gideon itself seems to be the only example of a rule with sufficient
“‘primacy’ and ‘centrality’” to have possibly “effected a profound and ‘sweeping’ change”
9
justifying retroactive application.
Whorton, 549 U.S. at 420
(quoting
Saffle, 494 U.S. at 495
;
Beard, 542 U.S. at 418
). As the Supreme Court has repeatedly stated, it is “unlikely”
that any watershed rules “have yet to emerge.”
Teague, 489 U.S. at 313
; accord
Schriro, 542 U.S. at 352
; Tyler v. Cain,
533 U.S. 656
, 667, n.7 (2001); Sawyer v. Smith,
497 U.S. 227
, 243 (1990).
To be sure, the McCoy rule shifts the balance of power between counsel and client
and preserves an essential right for a defendant: the “right to make the fundamental choices
about his own
defense.” 138 S. Ct. at 1511
. And McCoy, of course, derives from Gideon.
But, at bottom, McCoy presupposes what Gideon commanded — that a criminal defendant
has a right to counsel in the first place. McCoy refines the Gideon rule, but it is an extension
of a watershed rule rather than a watershed rule itself.
IV.
For the foregoing reasons, we hold that the rule announced in McCoy v. Louisiana,
138 S. Ct. 1500
, is not retroactively applicable on collateral review. 3 Accordingly, Smith’s
petition is untimely and the judgment of the district court is
AFFIRMED.
3
Respondents argue that the rule announced in McCoy also does not assist Smith
because (1) Smith testified that he shot the victim and (2) the McCoy rule arose in a death
penalty case and Smith did not face capital punishment. Given our resolution of this
appeal, we do not reach these issues.
10 |
4,639,304 | 2020-12-03 20:00:35.021126+00 | null | http://www.ca4.uscourts.gov/Opinions/201536.U.pdf | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 20-1536
JOHN ERIK STONE; MILYNDA DESIRAE STONE,
Plaintiffs - Appellants,
v.
UNITED STATES OF AMERICA, through its agency; HUNTINGTON
VETERANS AFFAIRS MEDICAL CENTER, of the Department of Veterans
Affairs,
Defendants - Appellees.
Appeal from the United States District Court for the Southern District of West Virginia, at
Huntington. Robert C. Chambers, District Judge. (3:19-cv-00538)
Submitted: November 30, 2020 Decided: December 3, 2020
Before GREGORY, Chief Judge, and AGEE and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
James D. McQueen, Jr., MCQUEEN DAVIS, Huntington, West Virginia, for Appellant.
Michael B. Stuart, United States Attorney, Gregory P. Neil, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, West Virginia,
for the Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
John Erick Stone and Milynda Desirae Stone appeal the district court’s order
dismissing their claims pursuant to the discretionary function exception to the Federal Torts
Claims Act, 28 U.S.C. §§ 1346(b), 2671-80. On appeal, they contend that the officers
overrepresented the value of a meat slicer to secure a felony arrest warrant, misrepresented
the statements that John Stone gave to law enforcement, and procured his statements in
contravention of the Fifth Amendment. However, they concede that they did not raise
these arguments in the district court.
“When a party in a civil case fails to raise an argument in the lower court and instead
raises it for the first time before us, we may reverse only if the newly raised argument
establishes fundamental error or a denial of fundamental justice.” In re Under Seal,
749 F.3d 276
, 285 (4th Cir. 2014) (internal quotation marks omitted). The Stones have not
argued that they have met this standard. See
id. at 292
(holding that failure to argue on
appeal for fundamental or plain error “marks the end of the road for [an] argument for
reversal not first presented to the district court” (internal quotation marks omitted)). And,
while the Stones argue waiver does not apply in a jurisdictional case, we have applied this
rule when an appellant raised a new argument seeking reversal of a district court’s order
dismissing his complaint for lack of subject matter jurisdiction. See Pornomo v. United
States,
814 F.3d 681
, 686 (4th Cir. 2016).
2
Accordingly, we affirm the district court’s order. 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
3 |
4,513,496 | 2020-03-06 15:11:14.732924+00 | null | http://www.search.txcourts.gov/RetrieveDocument.aspx?DocId=96700&Index=%5c%5coca%2dpsql12%2ecourts%2estate%2etx%2eus%5cTamesIndexes%5ccoa03%5cOpinion | TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-19-00014-CV
Vincent Thomas Jackson, Appellant
v.
Lynda Jane Jackson, Appellee
FROM THE 201ST DISTRICT COURT OF TRAVIS COUNTY
NO. D-1-FM-18-000422, THE HONORABLE JAN SOIFER, JUDGE PRESIDING
CONCURRING AND DISSENTING OPINION
While I agree with the majority’s conclusion that legally sufficient evidence supports the
divorce decree’s injunction prohibiting Vincent from exposing Daughter to Sherise Beeson, I
disagree with its conclusion that the record offers no support for the injunction limiting exposure
to Beeson’s child.
“The final test for legal sufficiency must always be whether the evidence at trial would
enable reasonable and fair-minded people to reach the verdict under review.” City of Keller v.
Wilson,
168 S.W.3d 802
, 827 (Tex. 2005). When asked why she sought these restrictions,
Lynda testified:
After reading some of the content through those text messages that were
produced, it seems very clear to me that there is a lot of—there’s a lot of
conversation that makes it seem very possessive of my [D]aughter, that they’re
looking to kind of create their own little family with her. And—and I don’t
necessarily trust that my—my role as a mother will be respected.
And indeed, a December 2017 email Beeson sent Vincent includes references to “a plan” she had
for their “future together.” Beeson mentions her own child by name as part of this “plan” and
confesses that she has begun shopping for “a much different house” in anticipation of a possible
life together.
More recent communication reveals Beeson’s growing affinity for Daughter and her
increasing hostility toward Lynda, with Beeson repeatedly using insulting nicknames to refer to
Lynda. Given that Beeson has primary custody of her child and that her ex-husband only has
visitation every other Saturday and Sunday, it is reasonable to assume that her child was exposed
to much of this rhetoric, which could impact how the child interacts with Daughter and how the
child talks about Daughter’s mother.
To determine whether a disputed aspect of a conservatorship order or divorce decree is in
a child’s best interest, we must consider a number of factors, including, inter alia, the effects on
the child, the developmental needs of the child, and the child’s need to develop a healthy
attachment to each parent. See Tex. Fam. Code § 153.254(a)(2), (4), (8). Viewing this record in
the light most favorable to the court’s decree, see
Keller, 168 S.W.3d at 810
, I would hold that a
reasonable factfinder could infer that restricted access to Beeson’s child is in Daughter’s best
interest. For that reason, I would affirm the final decree of divorce and must respectfully dissent
from the majority’s partial reversal of that decree.
__________________________________________
Edward Smith, Justice
Before Chief Justice Rose, Justices Triana and Smith
Filed: March 6, 2020
2 |
4,490,029 | 2020-01-17 22:02:09.504671+00 | Smith | null | *382OPINION.
Smith:
The only issue before us is whether the amounts of $3,299.21 and $2,515.81 constituted taxable income to the petitioner for the calendar years 1922 and 1923, respectively. In order to arrive at a decision it will be necessary to consider the nature of the premium payments from the standpoint of the petitioner, i. e., whether or not they constituted additional compensation.
Counsel for the petitioner contends that the success of The George Matthew Adams Service, Inc., was and is due to the continued maintenance of friendly relations with the authors and artists having contracts with it to syndicate their productions; that the death of any of its principal employees, and more especially the death of the petitioner, leaving dependents who would not be interested in *383the corporation, would tend to disrupt the continuance of such friendly relations; that it was felt that any dependent who might be left in straitened financial circumstances would be less likely to maintain an interest in the corporation than would otherwise be the case; and that it was further felt that in the event the dependents of George Matthew Adams were left with only his interest in the corporation to look to for support they would dispose of such interest in the corporation and thereby remove from the business all traces of the petitioner’s personality or influence.
It was also urged on behalf of the petitioner that the premiums in question did not constitute income to him, since they were not received by him and he did not have the free use and disposition thereof, but that, if it were considered that the petitioner had received additional compensation through the action of the corporation, the amount thereof would not be in excess of the cash surrender value of the policies. Our attention was further invited by counsel for the petitioner to a claimed analogy existing between the insurance scheme in question and the general scheme of group insurance.
Counsel for the respondent argues that ordinarily group insurance is taken out without the consent and without the knowledge, in most cases, of the employee, who is not consulted, who does not make the application for the insurance, and who is told about the matter after the thing has been accomplished; that here we have the actual participation by all the employees insured, who were also directors, as well as the beneficiaries; that the employees on whom the policies were taken out made out the applications, had knowledge of what was being done, and gave their consent to what was done; and that the amount of the insurance (the face value of the policy) obviously was set by the individuals, since they were directors of the corporation and the minutes show that the directors passed on such insurance.
It was also urged upon us on behalf of the respondent that group insurance could not be compared to the situation existing in the instant proceeding, since it Avould appear that the corporation was practically a personal service corporation where the activities of the stockholders, and especially the activities of the petitioner, produced the income and that such a situation is not at all analogous to one where insurance is taken out for thousands of employees who know nothing about it.
The minutes of the meeting of the board of directors of The George Matthew Adams Service, Inc., held January 2, 1922, state:
* * * It was the sense of the meeting that the Company should insure all its principal employees whether financially interested or not to stimulate their efficiency and leave their minds free from all financial cares. * * *
*384In the light of the foregoing extract from the minutes of the corporation, it seems to us that the evidence presented, as well as arguments of counsel for the petitioner, leads to the conclusion that the policy adopted by the corporation with respect to insuring the lives of its principal employees was adopted primarily for its own benefit.
That any progressive policy of compensation has for its foundation the financial needs of the employee as related to his skill and to the ability of the employer to pay can not be doubted. Increases in compensation are designed not only to reward for past services and compensate for increased efficiency, but also to stimulate future activity. Consequently, we find increases in compensation assuming various forms such as bonuses, pensions, etc., but in all such cases the primary factor considered by the employer is that of his own benefit, be it past, present, or future.
We agree with counsel for the respondent that the situation here is quite different from the one contemplated by that portion of article 33, Regulations 62, relative to premiums paid on group insurance policies, and in the last analysis the premium payments now under consideration constituted either a gift or additional compensation to the petitioner.
On the reasoning and authority of Noel v. Parrott, 15 Fed. (2d) 669 (certiorari denied, 273 U. S. 754), wherein the court, in considering whether a certain corporate act resulted in the making of a gift or the payment of additional compensation, said:
* * * Although it is held that the motive accompanying a gift is not material, gifts usually proceed from the .generosity of the giver; and, where there is any doubt as to the nature of the transaction, the absence of such motive is a pertinent circumstance for consideration. It is an essential characteristic of a gift, however, that it be a transfer without consideration. * * *
* * * It needs neither argument nor citation of authority to establish the proposition that the directors were without authority to give away the corporate assets, and that for them to make to several of their members and other persons a gift of a large sum of money from the corporate assets would be neither “ wise ” nor “ proper,” and would amount to an illegal misapplication of corporate funds. We must assume that the directors did not intend such a flagrant violation of their trust. * * *
we conclude that the premium payments herein did not constitute a gift to the petitioner. Cf. Cora B. Beatty, Executrix, 7 B. T. A. 726; Willis L. Garey, 16 B. T. A. 274; and Chauncey L. Landon, 16 B. T. A. 907.
As shown by the findings of fact, each person upon whose life an insurance policy was written made application for the policy himself and the policy was issued to the applicant. The applicant was permitted to designate the beneficiaries and in no case was the *385corporation designated as a beneficiary. Section 213 of the Revenue Act of 1921, under the provisions of which the petitioner’s tax returns for 1922 and 1923 were filed, defines gross income as including “gains, profits, and income derived from salaries, wages, or compensation for personal service * * * of whatever kind and in whatever form paid.” We think that the premiums paid upon the life insurance policies taken out on the life of the petitioner constituted additional compensation for him for the years 1922 and 1923, within the meaning of the taxing act. Consequently, we are of the opinion that the amounts of $3,299.21 and $2,515.81 constituted additional compensation of the petitioner for the calendar years 1922 and 1923, respectively, and that the respondent committed no error in including such amounts in his taxable income for the respective years.
Judgment will be entered for the respondent. |
4,490,032 | 2020-01-17 22:02:09.59164+00 | Trammell | null | *41OPINION.
TRAmmell:
In his petition the petitioner alleges that his gross bank deposits should be reduced by a further amount of $4,341.90, representing money withdrawn for cashing customers’ checks and redeposited. In his brief the petitioner contends that his gross bank deposits should be reduced by $16,854.50 instead of by $12,450, the amount by which the respondent reduced the deposits. The amount contended for in the petitioner’s brief is $62.60 in excess of that alleged in the petition.
In support of his contention for an amount in excess of that allowed by the respondent, the petitioner submitted his check or voucher register, for 1921 in addition to oral testimony, including that of himself. The petitioner’s oral testimony in connection with his register clearly shows that $7,800 of the deposits made by him in 1921 represent amounts previously withdrawn. With respect to an additional amount of $6,900 that was withdrawn, we are unable from the evidence to hold that it was subsequently redeposited. The petitioner contends that the remainder of the $16,-854.50 contended for, or $2,154.50, represents amounts withdrawn for accommodation loans and redeposited when repaid, amounts withdrawn by him personally or by getting others to cash his checks on his own account and which were redeposited, and a bad check. While the evidence shows that during the year the petitioner made some loans, and that others besides his bank cashed checks for him, we are unable to determine what part, if any, of the loans upon payment were redeposited or whether the proceeds from the checks were redeposited.
The respondent has allowed a deduction of $12,450 on account of amounts withdrawn and redeposited. The record is silent as to the various items composing this amount. Whether, it includes all or any portion of the $7,800 that the evidence shows represented *42amounts withdrawn and redeposited, we are not informed. Nor are we informed whether there was included all or any portion of the amounts of the $6,900 and $2,154.50 that we are unable to find represent money withdrawn and redeposited. In view of the record, the petitioner’s contention for a reduction of any amount in excess of that allowed by the respondent must be denied.
In his petition the petitioner alleges that he was allowed a deduction of $2,097.10 for business expenses, whereas he is entitled to a deduction of $3,282.06, or an increase of $1,184.96. The petitioner alleges that of the increase, $709.75 represents expenditures for labor and $476.21 represents additional miscellaneous expense.
In his brief the petitioner contends that the expenditures for labor, clerk hire, etc., amounted to $720.21 and that the miscellaneous expenses totaled $856.81. In our findings of fact we have set out the items that we have been able to determine from the evidence had any connection with the petitioner’s business. In our opinion, not all of the amounts shown for such items are allowable deductions in the taxable year, as, for example, the amounts expended for labor and lumber for putting in shelving at the new location or expenditures for fixtures and awnings. We do not deem it necessary, however, to enter into a detailed discussion of these or other items urged by the petitioner in support of his contention, for the reason hereinafter set out.
The respondent has allowed $2,097.10 as a deduction for business expenses. The record is silent as to the items and amounts entering into this deduction. Whether any or all of the items and amounts contended for by the petitioner are included, we do not know. Manifestly, if they have been included, they should not be deducted again. Unless we know what the respondent has allowed, we are not in a position to determine that the items and amounts contended for by the petitioner should be allowed in addition to what the respondent has already allowed. The petitioner’s contention is, therefore, denied.
Judgment will ~be entered for the respondent. |
4,654,844 | 2021-01-27 07:15:01.232177+00 | null | http://www.search.txcourts.gov/RetrieveDocument.aspx?DocId=17893&Index=%5c%5c10%2e20%2e4%2e7%5cTamesIndexes%5ccoa05%5cOpinion | AFFIRMED and Opinion Filed January 20, 2021
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-19-01282-CR
MARQUIS K JONES, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 283rd Judicial District Court
Dallas County, Texas
Trial Court Cause No. F-1554782-T
MEMORANDUM OPINION
Before Justices Pedersen, III, Reichek, and Garcia1
Opinion by Justice Garcia
This case involves ineffective assistance of counsel claims in the context of a
revocation hearing.
The trial court revoked appellant’s community supervision, adjudicated him
guilty of possession with intent to manufacture or deliver heroin in an amount of
more than four grams but less than 200 grams, and assessed punishment at twenty
years in prison. Appellant now argues that his revocation hearing counsel was
1
The Honorable Dennise Garcia succeeded the Honorable Bill Whitehill, a member of the original
panel. Justice Garcia has reviewed the briefs and the record before the Court.
ineffective because he did not call mitigation witnesses and because counsel assured
him his probation would not be revoked, rendering his plea involuntary. Finding no
reversible error, we affirm the trial court’s judgment.
I. BACKGROUND
Appellant was charged with possession with intent to manufacture or deliver
heroin in an amount of more than four grams but less than 200 grams and pleaded
guilty pursuant to a plea agreement. The trial court deferred adjudication and placed
appellant on ten years community supervision in accordance with the plea.
In April 2018, the State moved to revoke appellant’s community supervision.
Appellant pleaded true to the State’s allegations. The trial court modified the
conditions and continued appellant’s community supervision.
A year later, the State moved again to revoke appellant’s community
supervision. Appellant pleaded true to the State’s allegations and the trial court held
a revocation hearing. When the hearing concluded, the court revoked appellant’s
community supervision, adjudicated him guilty, and assessed punishment at twenty
years in prison.
Appellant filed a pro se notice of appeal. We abated the case for the trial court
to appoint appellate counsel.
After counsel was appointed and the case reinstated, appellant argued that he
was denied the right to counsel because he was not represented during the time for
filing a motion for new trial and his plea was not voluntary because counsel was
–2–
ineffective. He further argued that counsel was ineffective because he failed to call
mitigation witnesses during the revocation hearing.
We abated the appeal to allow an out of time motion for new trial. The motion
was filed, the trial court conducted a hearing, a supplemental record was filed, and
we reinstated the appeal. Having addressed appellant’s argument concerning
representation for the motion for new trial, we now consider appellant’s remaining
arguments.
II. ANALYSIS
Appellant argues that his trial counsel was ineffective because (i) counsel
failed to call mitigation witnesses, and (ii) his plea was involuntary in that counsel
advised his probation would be continued, and he would not have pleaded true to the
revocation allegations had he known he would be sentenced to twenty years in
prison. The record does not support these assertions.
A. Involuntary Plea
We begin with appellant’s contention that his plea was not voluntary because
revocation counsel was ineffective. The Sixth Amendment of the United States
Constitution guarantees an accused’s right to the effective assistance of counsel in
criminal prosecutions. U.S. CONST. amend. VI; Lopez v. State,
343 S.W.3d 137
, 142
(Tex. Crim. App. 2011). This right is applicable to guilty-plea proceedings. See Ex
parte Harrington,
310 S.W.3d 452
, 458 (Tex. Crim. App. 2010).
–3–
A guilty plea may be considered involuntary due to ineffective assistance of
counsel if the plea is not knowingly and voluntarily given due to the erroneous
advice of counsel. Ex parte Moussazadeh,
361 S.W.3d 684
, 688–89 (Tex. Crim.
App. 2012). To demonstrate that a plea was involuntary based on ineffective
assistance of counsel, the defendant must demonstrate by a preponderance of the
evidence (1) that counsel’s performance was deficient and (2) that the defendant was
prejudiced as a result of counsel’s errors. Miller v. State,
548 S.W.3d 497
, 499 (Tex.
Crim. App. 2018); Strickland v. Washington,
466 U.S. 668
, 687–88, 694 (1984). An
ineffective assistance claim must be “firmly founded in the record” and “the record
must affirmatively demonstrate” the meritorious nature of the claim. Thompson v.
State,
9 S.W.3d 808
, 813 (Tex. Crim. App. 1999).
Under the first prong, the defendant must demonstrate that his counsel’s
representation fell below an objective standard of reasonableness under prevailing
professional norms. Strickland,
466 U.S. at
687–88; see also Ex parte Morrow,
952 S.W.2d 530
, 536 (Tex. Crim. App. 1997). “This requires showing that counsel made
errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the
defendant by the Sixth Amendment.” Strickland,
466 U.S. at 687
. Strickland’s
second prong generally measures prejudice in terms of whether the deficient
performance affected the outcome of the proceeding. See Strickland,
466 U.S. at 694
. Thus, when the deficient performance might have affected a punishment
verdict, the prejudice inquiry focuses on whether there is a reasonable probability
–4–
that absent the errors, a more lenient punishment would have been assessed. See
Miller, 548 S.W.3d at 500.
In this instance, the State alleged that appellant violated numerous conditions
of his community supervision, including failing a urinalysis test as required for
successful completion of the Substance Abuse Felony Program (SAFP) that was also
a condition of his probation. Appellant pleaded true to all alleged violations.
Appellant testified at the revocation hearing and affirmed that he understood
the State’s allegations in the motion to revoke and wanted to enter a plea of true. He
further affirmed his understanding that by pleading true, the trial court could find
that he violated his community supervision, revoke it, adjudicate him guilty, and
sentence him to the maximum provided by law. Appellant said he had discussed the
matter at length with counsel, understood the terms of his plea, and had no questions
for the trial court. He also signed the plea form acknowledging, among other things,
that he could receive the maximum sentence allowed by law.
Likewise, at the hearing on the motion for new trial, appellant testified that he
knew he was on deferred probation and the entire range of punishment was open.
His attorney advised that he plead true to the probation violations and told appellant
the judge could give him any sentence she wanted. Although appellant said he would
not have pleaded true to the revocation allegations if he had known he would be
sentenced to twenty years in prison, he admitted that he knew what he was doing
when he entered his plea.
–5–
Appellant’s revocation counsel, Jason Foster, testified that the State
recommended a ten-year sentence, but there was no plea bargain. Foster informed
appellant that the court could “follow the recommendation or not.”
Appellant’s fiancée also testified that she and appellant both knew that the
revocation hearing could result in appellant being continued on probation or sent
back to prison. They both also knew that the range of possible punishment was from
five to ninety-nine years in prison.
On this record, there is nothing to suggest that appellant’s plea was not
voluntary or that counsel’s advice was unreasonable. Advising a defendant to plead
true in anticipation that the trial judge will rule leniently does not equate to
ineffective assistance of counsel. See Graves v. State,
803 S.W.2d 342
, 345 (Tex.
App.—Houston [14th Dist.] 1990, pet. ref’d). Appellant acknowledged that counsel
informed him that the judge could consider the full range of punishment. Thus, while
appellant may have hoped for a different outcome, he was fully apprised of and
aware of the consequences of his plea. We therefore cannot conclude that counsel’s
performance regarding the plea was deficient. See Strickland,
466 U.S. at
687–88;
Morrow
952 S.W.2d at 536
.
B. Failure to Call Mitigation Witnesses
Appellant also urges that counsel was ineffective because he did not call
several witnesses who were prepared to testify on appellant’s behalf. The record
establishes otherwise.
–6–
The failure to call a witness does not constitute ineffective assistance of
counsel without showing both that the witness was available to testify, and that
witness’s testimony would have benefitted defendant. See Wilkerson v. State,
726 S.W.2d 542
, 550–51 (Tex. Crim. App. 1986). Moreover, because counsel’s decision
to call witnesses is a strategic choice involving weighing risks and benefits of
testimony, courts should evaluate an attorney’s explanations before concluding
counsel was ineffective. See Prine v. State,
537 S.W.3d 113
, 118 (Tex. Crim. App.
2017).
Here, unlike most direct appeals, we have the benefit of a supplemental record
on the motion for new trial. See, e.g., Lopez v. State,
343 S.W.3d 137
, 144 (Tex.
Crim. App. 2011) (record could have been supplemented to explain counsel’s
strategy). That record does not reflect that counsel’s hearing strategy was objectively
unreasonable.
Appellant’s motion for new trial included affidavits from his fiancée, aunt,
great aunt, great uncle, and his mother. These affidavits were admitted into evidence
at the hearing and the witnesses affirmed their accuracy and substance. Each witness
said that he or she was available to testify at the revocation hearing, but either no
one contacted them, or they were told they need not attend. The witnesses also
testified that they loved and supported appellant and were committed to his future
success on probation and beyond. Some of the witnesses testified about life
challenges appellant had struggled to overcome.
–7–
Revocation counsel Jason Foster also testified, and his affidavit was admitted
into evidence. He said that he spoke with appellant’s fiancée on several occasions
and recalled telling her that he did not think her testimony would be beneficial at the
revocation hearing. He did not recall speaking with appellant’s mother or any of his
other relatives but did not believe that any of the witnesses’ testimony would have
advanced his strategy.
The revocation proceeding at issue here was precipitated by appellant failing
a urinalysis test. He was taken into custody for transfer to the relapse program for
SAFP. As he awaited admission, the trial court released him to attend his
grandmother’s funeral. But appellant failed to return at the designated time. Instead,
he absconded and was subsequently arrested.
Foster said that appellant’s relatives’ affection for him was not the pertinent
issue at the revocation hearing. Rather, the issue was why appellant absconded that
day. He believed that hearing from appellant’s family about how appellant “messed
up” and how sorry they were would likely annoy the judge because the court needed
to hear about appellant’s remorse, not his family’s.
Foster advised appellant that he needed to be open and honest with the judge
about his state of mind that day. Appellant assured him that he understood. But
appellant did not testify well and had a “bad attitude.” Consequently, Foster believed
he needed to “shut it down.”
–8–
Foster also had specific concerns about calling appellant’s fiancée to testify
because she helped appellant abscond and was with him when he “committed a new
crime in Rockwall.” Therefore, Foster was concerned about her potential
impeachment.
Because the trial judge overruled appellant’s motion for new trial and did not
make express findings, we presume she viewed the trial strategy employed by
revocation counsel as having been within the wide latitude of choices available to a
competent attorney in a criminal case. See Zarate v. State,
551 S.W.3d 261
, 272–73
(Tex. App.—San Antonio 2018, pet. ref’d) (in the absence of express findings we
presume trial court made all findings in prevailing party’s favor). We agree with that
determination. Although witnesses were available to testify on appellant’s behalf,
there is nothing to suggest the testimony would have benefitted appellant. Under
these circumstances, we cannot conclude that counsel’s strategic decision to not
open the door to potentially adverse and irrelevant evidence is objectively
unreasonable or “so outrageous that no competent attorney” would have employed
that strategy. See Goodspeed v. State,
187 S.W.3d 390
, 392 (Tex. Crim. App. 2005).
Because appellant has not met his burden to satisfy the first prong of
Strickland, we need not consider Strickland’s prejudice prong. See Williams v. State,
301 S.W.3d 675
, 687 (Tex. Crim. App. 2009); TEX. R. APP. P. 47.1.; see also
Strickland,
466 U.S. at
687–688.
–9–
We overrule appellant’s ineffective assistance issue and affirm the trial court’s
judgment.
/Dennise Garcia/
DENNISE GARCIA
JUSTICE
Do Not Publish
TEX. R. APP. P. 47.2(b)
191282F.U05
–10–
S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
MARQUIS K JONES, Appellant On Appeal from the 283rd Judicial
District Court, Dallas County, Texas
No. 05-19-01282-CR V. Trial Court Cause No. F15-54782-T.
Opinion delivered by Justice Garcia.
THE STATE OF TEXAS, Appellee Justices Pedersen, III and Reichek
participating.
Based on the Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.
Judgment entered January 20, 2021
–11– |
4,639,307 | 2020-12-03 20:00:42.867773+00 | null | http://www.opn.ca6.uscourts.gov/opinions.pdf/20a0376p-06.pdf | RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 20a0376p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
┐
UNITED STATES OF AMERICA,
│
Plaintiff-Appellee, │
> No. 18-5578
│
v. │
│
WILLIAM J. MILLER, │
Defendant-Appellant. │
┘
Appeal from the United States District Court
for the Eastern District of Kentucky at Covington.
No. 2:16-cr-00047-1—David L. Bunning, District Judge.
Argued: December 11, 2019
Decided and Filed: December 3, 2020
Before: McKEAGUE, KETHLEDGE, and MURPHY, Circuit Judges.
_________________
COUNSEL
ARGUED: Eric G. Eckes, PINALES, STACHLER, YOUNG, BURRELL & CROUSE CO.,
L.P.A., Cincinnati, Ohio, for Appellant. Elaine K. Leonhard, UNITED STATES ATTORNEY’S
OFFICE, Ft. Mitchell, Kentucky, for Appellee. ON BRIEF: Eric G. Eckes, PINALES,
STACHLER, YOUNG, BURRELL & CROUSE CO., L.P.A., Cincinnati, Ohio, for Appellant.
Elaine K. Leonhard, UNITED STATES ATTORNEY’S OFFICE, Ft. Mitchell, Kentucky,
Charles P. Wisdom, Jr., UNITED STATES ATTORNEY’S OFFICE, Lexington, Kentucky, for
Appellee. Alan Butler, ELECTRONIC PRIVACY INFORMATION CENTER, Washington,
D.C., Ryan T. Mrazik, PERKINS COIE LLP, Seattle, Washington, for Amici Curiae.
No. 18-5578 United States v. Miller Page 2
_________________
OPINION
_________________
MURPHY, Circuit Judge. Courts often must apply the legal rules arising from fixed
constitutional rights to new technologies in an evolving world. The First Amendment’s rules for
speech apply to debate on the internet. Packingham v. North Carolina,
137 S. Ct. 1730
, 1735–36
(2017). The Second Amendment’s rules for firearms apply to weapons that did not exist “at the
time of the founding.” District of Columbia v. Heller,
554 U.S. 570
, 582 (2008). The Supreme
Court has made the same point for the rights at issue in this criminal case: The Fourth
Amendment right against “unreasonable searches” and the Sixth Amendment right to confront
“witnesses.” See Kyllo v. United States,
533 U.S. 27
, 34–36 (2001); Melendez-Diaz v.
Massachusetts,
557 U.S. 305
, 315–17 (2009). We must consider how the established rules for
these traditional rights should apply to a novel method for combatting child pornography: hash-
value matching.
A hash value has been described as “a sort of digital fingerprint.” United States v.
Ackerman,
831 F.3d 1292
, 1294 (10th Cir. 2016). When a Google employee views a digital file
and confirms that it is child pornography, Google assigns the file a hash value. It then scans
Gmail for files with the same value. A “match” signals that a scanned file is a copy of the illegal
file. Here, using this technology, Google learned that a Gmail account had uploaded two files
with hash values matching child pornography. Google sent a report with the files and the IP
address that uploaded them to the National Center for Missing and Exploited Children
(NCMEC). NCMEC’s systems traced the IP address to Kentucky, and a detective with a local
police department connected William Miller to the Gmail account. Miller raises various
constitutional challenges to his resulting child-pornography convictions.
He starts with the Fourth Amendment, arguing that Google conducted an “unreasonable
search” by scanning his Gmail files for hash-value matches. But the Fourth Amendment restricts
government, not private, action. And while Google’s hash-value matching may be new, private
searches are not. A private party who searches a physical space and hands over paper files to the
No. 18-5578 United States v. Miller Page 3
government has not violated the Fourth Amendment. Burdeau v. McDowell,
256 U.S. 465
, 475
(1921). That rule covers Google’s scan of virtual spaces and disclosure of digital files.
Miller next argues that the police detective conducted an “unreasonable search” when he
later opened and viewed the files sent by Google. This claim implicates another settled rule:
Under the private-search doctrine, the government does not conduct a Fourth Amendment search
when there is a “virtual certainty” that its search will disclose nothing more than what a private
party’s earlier search has revealed. United States v. Jacobsen,
466 U.S. 109
, 119 (1984). So we
must ask whether the detective’s manual search would disclose anything more than what
Google’s hash-value search showed. Critically, Miller does not dispute the district court’s
finding about a hash-value match’s near-perfect accuracy: It created a “virtual certainty” that the
files in the Gmail account were the known child-pornography files that a Google employee had
viewed. Given this (unchallenged) reliability, Jacobsen’s required level of certainty is met.
Miller thus asks us to depart from Jacobsen’s idiosyncratic definition of a Fourth
Amendment “search,” noting that the Supreme Court recently clarified that such a “search” also
occurs when the government trespasses onto property to obtain information. United States v.
Jones,
565 U.S. 400
, 404–08 (2012). At the least, Miller says, the detective’s opening of the
files qualifies as a search in this “trespass-to-chattels” sense. He raises a legitimate (if debatable)
point. The Supreme Court has long required the government to obtain a warrant to open sealed
letters, the equivalent of modern emails. Ex parte Jackson,
96 U.S. 727
, 732–33 (1877). Yet,
well before Jacobsen, the Court also allowed the government to rely on letters illegally taken and
opened by private parties.
Burdeau, 256 U.S. at 474
–75. And Google arguably “opened” the
files and committed the “trespass” here. In the end, though, we need not resolve this debate. We
find ourselves bound by Jacobsen no matter how this emerging line of authority would resolve
things.
Miller lastly argues that the admission of NCMEC’s report at trial violated his Sixth
Amendment right to confront “witnesses.” This right’s basic rule (that a defendant must have the
opportunity to cross-examine those who make testimonial statements) certainly applies to new
types of witnesses, such as forensic analysts.
Melendez-Diaz, 557 U.S. at 313
–21. But the rule’s
reach is nevertheless limited to statements by “witnesses”—that is, people. And NCMEC’s
No. 18-5578 United States v. Miller Page 4
automated systems, not a person, entered the specific information into the report that Miller
challenges. The rules of evidence, not the Sixth Amendment, govern the admissibility of this
computer-generated information.
For these reasons and those that follow, we affirm Miller’s convictions.
I
A
Many companies rely on hash-value matching to remove child pornography from their
email, file-sharing, and similar internet services. Amicus Br. of Discord et al., at 4–5. “A hash
value is a number that is often represented as a sequence of characters and is produced by an
algorithm based upon the digital contents of a drive, medium, or file.” 2017 Advisory
Committee Note to Fed. R. Evid. 902(14). As a government witness explained, hash values can
be created using common algorithms like SHA or MD5. Johnson Tr., R.106, PageID#1290.
“You basically point this algorithm toward a file, and you get back this alphanumeric string, and
that’s a series of characters that are a fingerprint; the VIN number or the DNA, if you will, of
that file.”
Id. Some algorithms assign
a character to every pixel in an image, such that the hash
value will change if a single pixel changes.
Id., PageID#1291. Other programs,
like Microsoft’s
PhotoDNA, return the same value even if a file changes slightly.
Id. After companies assign
a
“hash value” to a known image of child pornography, they can scan their services for files with
the same value. When they get a “match,” they know that the scanned file is a duplicate of the
child-pornography image without opening and viewing the file. Amicus Br. of Discord et al., at
4–5.
Apart from commonly used hash algorithms, companies create their own unique
programs. “[S]ince 2008,” for example, “Google has been using its own proprietary hashing
technology to tag confirmed child sexual abuse images.” McGoff Decl., R.33-1, PageID#161.
When a Google employee finds a child-pornography image on its services, Google gives this
image a “hash” and adds it to its “repository of hashes of apparent child pornography as defined
in 18 U.S.C. § 2256.”
Id. Google might also
discover child pornography from a customer’s
No. 18-5578 United States v. Miller Page 5
complaint, but “[n]o hash is added to [its] repository without the corresponding image first
having been visually confirmed by a Google employee to be apparent child pornography.”
Id. Google’s terms of
service inform its customers that they may not use services like Gmail
in violation of the law.
Id. The terms indicate:
“We may review content to determine whether it
is illegal or violates our policies, and we may remove or refuse to display content that we
reasonably believe violates our policies or the law. But that does not necessarily mean that we
review content, so please don’t assume that we do.” Terms, R.33-1, PageID#164.
Consistent with these terms, Google’s “product abuse detection system” scans some files
that customers upload looking for hash-value matches with the files in its child-pornography
repository. McGoff Decl., R.33-1, PageID#161–62. When this system detects a match, Google
does one of two things.
Id. An employee might
view the file to confirm that it is child
pornography.
Id., PageID#162. Or Google
might just send an automated report with the file to
the National Center for Missing and Exploited Children (NCMEC).
Id. NCMEC, a nonprofit
entity, “was created to help find missing children, reduce child sexual exploitation, and prevent
child victimization.” Shehan Decl., R.33-6, PageID#193.
Companies like Google have business reasons to make these efforts to remove child
pornography from their systems. As a Google representative noted, “[i]f our product is
associated with being a haven for abusive content and conduct, users will stop using our
services.” McGoff Decl., R.33-1, PageID#161. Yet once “electronic communication services
providers” become aware of child pornography on their services, federal law requires them to
report it to NCMEC. 18 U.S.C. §§ 2258A(a), 2258E(6). NCMEC operates a “CyberTipline”
that allows companies to securely disclose child pornography. Shehan Decl., R.33-6,
PageID#194–95.
Companies use a standardized “CyberTipline Report” to send images to NCMEC. A
company will complete the report’s “Section A” by identifying, among other things, the date that
the company discovered the file and the IP address that uploaded it. Rep., R.33-2, PageID#169–
71. After a company sends this information, NCMEC’s systems run a search for the location of
the IP address and input the results into “Section B” of the report.
Id., PageID#172. An analyst
No. 18-5578 United States v. Miller Page 6
next might manually search public information to identify a suspect (for example, an analyst
might look for information associated with the email address that sent the file).
Id., PageID#174–76. This analyst
might also look at the image, depending on such factors as
whether the inspection could identify the culprit. Shehan Decl., R.33-6, PageID#195. The
analyst adds the search results to “Section C” of the report. Rep., R.33-2, PageID#174–77.
NCMEC sends the completed report to the law-enforcement agency in the area of the IP address.
Shehan Decl., R.33-6, PageID#196.
B
This case concerns Gmail. On July 9, 2015, the email address “miller694u@gmail.com”
attached two files to an email that had hash values matching images in Google’s child-
pornography repository. Rep., R.33-2, PageID#170–71. One file was named “young - tight
fuck.jpg”; the other was named “!!!!!!Mom&son7.jpg.”
Id., PageID#170. Google deactivated
the account. The next day, it sent NCMEC an automated CyberTipline Report.
Id., PageID#169. No Google
employee viewed the files. The report classified the images as “A1”
under an industry-wide classification scheme, which meant that they were of prepubescent
minors engaged in sex acts.
Id., PageID#170–72. Google listed
two IP addresses associated
with the Gmail account. From the first IP address, someone had uploaded the images into Gmail
on July 9 and logged into the account several times during the prior month. From the second IP
address, someone had registered the account on January 29, 2015.
Id. Once NCMEC received
this report, its systems performed a “WhoIs lookup” for the
IP addresses. This search identified their location as Fort Mitchell, Kentucky, and their internet
service provider as Time Warner Cable.
Id., PageID#172. An analyst
next searched for
information connected to miller694u@gmail.com.
Id., PageID#174–77. This email
was
affiliated with a profile page of “Bill M.” on the social-media website “Tagged.”
Id. The profile page
included a picture of “Bill M.” The analyst attached a printout of the page with the picture
to the report.
Id., PageID#177. The analyst
did not view the files. NCMEC sent the report and
files to the Kentucky State Police. The state police forwarded this information to the police
department in Kenton County (the county encompassing Fort Mitchell).
No. 18-5578 United States v. Miller Page 7
On August 13, 2015, Detective Aaron Schihl with the Kenton County Police Department
received the report. Schihl opened and viewed the two files and confirmed that they showed
prepubescent children engaged in sex acts.
After subpoenaing Time Warner Cable, Schihl learned that the IP address that uploaded
the child pornography was assigned to subscriber “Tania Miller” at a Fort Mitchell home
address. He also learned that “William Jay Miller” had a driver’s license that listed this address.
Schihl obtained a warrant for the records that Google retained for this Gmail account. The
records identified “Bill Miller” as the subscriber. Google provided about 4,000 emails and chat
messages, as well as information in a file-storage account. Schihl found more child pornography
in the file-storage account and in email exchanges from May 2015.
Schihl next got a warrant to search Miller’s home. In October 2015, the police seized
computers, flash drives, and hard drives. A forensic examination of an external hard drive turned
up 571 child-pornography files (including the files from the July 9 email) organized in folders
named things like “pre-teen.” The IP address for Miller’s laptop matched an IP address from the
CyberTipline Report, and the laptop appeared to have been connected to the external hard drive.
In an interview with Schihl, Miller admitted that his hard drive contained child pornography, but
claimed that the images had been on the drive when he bought it at a yard sale a year earlier. A
forensic examination, in fact, showed that the child-pornography files had been created on the
hard drive a week before the July 9 email.
The government indicted Miller on seven counts of knowingly receiving, distributing, or
possessing child pornography. 18 U.S.C. § 2252(a)(2), (a)(4)(B). These counts corresponded to
the email exchanges of child pornography from May 2015, the email containing the two files on
July 9, and the files on the hard drive in Miller’s home. Miller moved to suppress this evidence
on the ground that the police learned of the child-pornography images attached to the July 9
email in violation of the Fourth Amendment. The district court denied his motion. United States
v. Miller,
2017 WL 2705963
, at *8 (E.D. Ky. June 23, 2017).
Miller stood trial. The government introduced the CyberTipline Report through the
testimony of an NCMEC director. Miller raised a Confrontation Clause objection because this
No. 18-5578 United States v. Miller Page 8
witness was not the analyst who had worked on the report. The district court overruled his
objection.
As Miller’s main defense, his counsel argued that he was not the person who had emailed
child pornography or placed child pornography on the hard drive. Counsel highlighted that a few
emails about a cellphone rebate sent to this Gmail account had been addressed to Miller’s
brother, Fred Miller. Miller’s wife, mother-in-law, and daughter testified that Fred, whom they
described as “strange” or “simple-minded,” came to their house about once a week and
sometimes used Miller’s laptop.
The government sought to rebut Miller’s attempt to shift blame to his brother. Detective
Schihl went through many messages from the Gmail account showing a person named “Bill”
propositioning women using Miller’s photos. Schihl also testified that the “Tagged” profile page
connected to this Gmail account used a picture of Miller. The forensic examiner likewise
explained that the hard drive with the child-pornography folders included a folder named “me”
full of Miller’s pictures. And it contained Skype messages requesting pictures of naked children
using the display name “Bill Miller.”
The jury convicted Miller on all counts. The district court sentenced him to 150 months
in prison followed by 15 years of supervised release.
Miller appeals. He argues: (1) that the government violated his Fourth Amendment right
against unreasonable searches; (2) that the district court violated his Sixth Amendment right to
confront witnesses; and (3) that district court wrongly found sufficient evidence to convict him.
II. Fourth Amendment
The Fourth Amendment provides in relevant part: “The right of the people to be secure in
their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not
be violated[.]” U.S. Const. amend. IV. Miller asserts that the government committed two
“unreasonable searches”: the first when Google discovered the two files in Miller’s email on July
9 and the second when Detective Schihl later opened and viewed those files.
No. 18-5578 United States v. Miller Page 9
A. Did Google’s hash-value matching violate the Fourth Amendment?
Miller claims that Google conducted an “unreasonable search” by scanning his July 9
email for hash-value matches. This claim faces an immediate (and ultimately insurmountable)
obstacle: Google is a private entity. Like other constitutional rights, see Manhattan Cmty.
Access Corp. v. Halleck,
139 S. Ct. 1921
, 1928 (2019), the Fourth Amendment regulates only
government action, United States v. Jacobsen,
466 U.S. 109
, 113 (1984). If, for example, a
private party enters your home in search of incriminating papers, that party may have committed
a trespass under state tort law, but the party has not engaged in an unreasonable search under the
Fourth Amendment. See Burdeau v. McDowell,
256 U.S. 465
, 475 (1921). Indeed, until it was
incorporated against the states, the Fourth Amendment did not even apply to state officers (like
Detective Schihl) who acted independently of federal officers. See Byars v. United States,
273 U.S. 28
, 33–34 (1927); cf. Elkins v. United States,
364 U.S. 206
, 215 (1960). And although
the Fourteenth Amendment has now expanded the Fourth Amendment’s reach to cover state
actors, it too regulates only government action, not private action. See Civil Rights Cases,
109 U.S. 3
, 17–18 (1883).
This “government” action most obviously exists when public employees perform public
functions. See West v. Atkins,
487 U.S. 42
, 49–50 (1988). But the Constitution does not compel
governments to conduct their affairs through the “public employees” that they typically use
today. Spencer v. Lee,
864 F.2d 1376
, 1379 (7th Cir. 1989) (en banc). Historically, “[p]rivate
citizens were actively involved in government work, especially where the work most directly
touched the lives of the people.” Filarsky v. Delia,
566 U.S. 377
, 385 (2012). It was, for
example, “a common practice in this country for private watchmen or guards to be vested with
the powers of policemen, sheriffs or peace officers to protect the private property of their private
employers,” but states considered them “public officers when performing their public duties.”
NLRB v. Jones & Laughlin Steel Corp.,
331 U.S. 416
, 429, 431 (1947). And “[t]he Constitution
constrains governmental action ‘by whatever instruments or in whatever modes that action may
be taken.’” Lebron v. Nat’l R.R. Passenger Corp.,
513 U.S. 374
, 392 (1995) (quoting Ex parte
Virginia,
100 U.S. 339
, 346–47 (1880)).
No. 18-5578 United States v. Miller Page 10
This rule raises the key question: When should a private party’s actions be “fairly
attributable” to the government and trigger the Constitution’s protections? Lugar v. Edmondson
Oil Co.,
457 U.S. 922
, 937 (1982). One approach to this constitutional “agency” question would
be to review our legal traditions and consider situations in which our laws have historically
imputed one person’s conduct to another. After all, “traditional agency principles were
reasonably well ensconced in the law at the time of the founding[.]” United States v. Ackerman,
831 F.3d 1292
, 1301 (10th Cir. 2016) (Gorsuch, J.). Yet the Supreme Court has stated that
“[w]hat is fairly attributable is a matter of normative judgment, and the criteria lack rigid
simplicity.” Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass’n,
531 U.S. 288
, 295 (2001).
It has adopted a fact-bound approach to this attribution question, one that uses “different factors
or tests in different contexts.”
Lugar, 457 U.S. at 939
. Sometimes, the Court uses a “function”
test that asks whether a private party performs a public function. Romanski v. Detroit Ent.,
L.L.C.,
428 F.3d 629
, 636 (6th Cir. 2005). Other times, the Court uses a “compulsion” test that
asks whether the government compelled a private party’s action.
Id. Still other times,
the Court
uses a “nexus” test that asks whether a private party cooperated with the government. Id.; see
Halleck, 139 S. Ct. at 1928
.
As the party seeking to suppress evidence, Miller must prove that Google’s actions were
government actions under one of these tests. United States v. Ringland,
966 F.3d 731
, 735 (8th
Cir. 2020); cf. United States v. Baker,
976 F.3d 636
, 645 (6th Cir. 2020). He has fallen short.
1. Did Google perform a public function? The Supreme Court has held that some
functions qualify as “government” functions no matter who performs them.
Halleck, 139 S. Ct. at 1928
–29. Yet few activities qualify.
Id. at 1929.
If a function is always a “government”
action, it means that the government may not deregulate by allowing private parties to perform
the action without becoming the “government” themselves. See
Spencer, 864 F.2d at 1379
. This
test thus covers only those limited activities—for example, running a city—that have
“traditionally and exclusively” been performed by the government. Durante v. Fairlane Town
Ctr., 201 F. App’x 338, 341 (6th Cir. 2006) (citing Jackson v. Metro. Edison Co.,
419 U.S. 345
,
352 (1974)); see Marsh v. Alabama,
326 U.S. 501
, 505–09 (1946). Most activities—such as
providing electricity, operating a nursing home, or managing a public-access television station—
No. 18-5578 United States v. Miller Page 11
will not qualify. See
Halleck, 139 S. Ct. at 1929
; Blum v. Yaretsky,
457 U.S. 991
, 1011–12
(1982);
Jackson, 419 U.S. at 352
–53.
Miller has not shown that Google’s hash-value matching satisfies this test. Admittedly,
the investigation of a crime (like the possession of child pornography) has long been performed
by the government.
Ackerman, 831 F.3d at 1295
. But it has also long been performed by private
parties protecting their property. Think of shopkeepers investigating theft by shoplifters or
insurance companies investigating arson by claimants. See Chapman v. Higbee Co.,
319 F.3d 825
, 833–34 (6th Cir. 2003) (en banc); United States v. Howard,
752 F.2d 220
, 227–28 (6th Cir.
1985), adopted en banc in relevant part
770 F.2d 57
, 62 (6th Cir. 1985). Only when a party has
been “endowed with law enforcement powers beyond those enjoyed by” everyone else have
courts treated the party’s actions as government actions.
Ackerman, 831 F.3d at 1296
; see
Romanski, 428 F.3d at 636
–37. And Miller identifies nothing that gave Google any special
police powers.
2. Did Google act under compulsion? Even if a private party does not perform a public
function, the party’s action might qualify as a government act if the government “has exercised
coercive power or has provided such significant encouragement, either overt or covert, that the
choice must in law be deemed to be that of the” government.
Blum, 457 U.S. at 1004
; see
Adickes v. S. H. Kress & Co.,
398 U.S. 144
, 170–71 (1970). When, for example, federal
regulations compelled private railroads to conduct post-accident drug and alcohol testing of
employees involved in train accidents, the Supreme Court held that the railroads were engaged in
“government” searches. Skinner v. Ry. Labor Execs.’ Ass’n,
489 U.S. 602
, 614 (1989). Not only
that, when other regulations merely permitted railroads to undertake this testing in other
situations, the Court held that even these tests qualified as “government” searches.
Id. at 611– 12, 615.
Several “features” of these regulations led the Court to treat the nonmandatory private
testing as government action.
Id. at 615.
The regulations preempted conflicting state laws and
collective-bargaining terms, conferred on the government a right to receive test results, barred
railroads from contracting away their testing rights, and prohibited employees from refusing to
take tests.
Id. No. 18-5578 United
States v. Miller Page 12
At the same time, private action does not become government action merely because the
government authorizes or acquiesces in it. See Flagg Bros., Inc. v. Brooks,
436 U.S. 149
, 164–
65 (1978). Even extensive regulation of a private party will not turn its every action into
government action. See Am. Mfrs. Mut. Ins. Co. v. Sullivan,
526 U.S. 40
, 57–58 (1999). The
Supreme Court thus refused to find “government” action when a utility disconnected a
customer’s electricity even though the utility had been subject to broad state oversight and the
state had approved the utility’s general disconnection practice. See
Jackson, 419 U.S. at 352
–58.
Miller has not shown that Google’s hash-value matching falls on the “compulsion” side
of this line. He cites no law that compels or encourages Google to operate its “product abuse
detection system” to scan for hash-value matches. Federal law disclaims such a mandate. It says
that providers need not “monitor the content of any [customer] communication” or “affirmatively
search, screen, or scan” files. 18 U.S.C. § 2258A(f). Nor does Miller identify anything like the
government “encouragement” that the Court found sufficient to turn a railroad’s drug and
alcohol testing into “government” testing. See
Skinner, 489 U.S. at 615
. In that context,
regulations authorized the testing and barred railroads from contracting away their rights.
Id. In this context,
Miller identifies no regulations authorizing Google’s hash-value matching or
barring Google from changing its terms of service to prohibit the practice. See United States v.
Richardson,
607 F.3d 357
, 365–67 (4th Cir. 2010). Google’s decision to scan its customers’ files
is instead like the utility’s decision to disconnect its customers’ electricity: The “initiative” to
take both actions “comes from” the private party, not the government.
Jackson, 419 U.S. at 357
.
Miller responds by identifying government compulsion for a different activity. Federal
law requires “electronic communication service providers” like Google to notify NCMEC when
they become aware of child pornography. 18 U.S.C. § 2258A(a). But this mandate compels
providers only to report child pornography that they know of; it does not compel them to search
for child pornography of which they are unaware.
Id. § 2258A(f). And
the Supreme Court’s
cases tell us to focus on “the specific conduct of which [a party] complains.”
Sullivan, 526 U.S. at 51
(quoting
Blum, 457 U.S. at 1004
). That conduct is Google’s hash-value matching, not its
reporting.
No. 18-5578 United States v. Miller Page 13
Precedent confirms this point. Many courts have found that a “reporting requirement,
standing alone, does not transform [a service provider] into a government agent whenever it
chooses to scan files sent on its network for child pornography.”
Ringland, 966 F.3d at 736
(quoting United States v. Stevenson,
727 F.3d 826
, 830 (8th Cir. 2013)); United States v.
Cameron,
699 F.3d 621
, 637–38 (1st Cir. 2012); United States v. Wolfenbarger,
2019 WL 6716357
, at *13–16 (N.D. Cal. Dec. 10, 2019) (citing cases). More generally, many laws require
certain individuals, such as teachers or doctors, to report child abuse. In that context, too, courts
have held that reporting mandates do not transform private parties into government actors for
purposes of various constitutional provisions. See, e.g., Mueller v. Auker,
700 F.3d 1180
, 1191–
92 (9th Cir. 2012); Brown v. Newberger,
291 F.3d 89
, 93–94 (1st Cir. 2002).
History also confirms the point. At common law, citizens had “a duty to raise the ‘hue
and cry’ and report felonies” of which they were aware. Branzburg v. Hayes,
408 U.S. 665
, 696
& nn.34–35 (1972). A person might commit a “misprision of felony” by failing to do so. United
States v. Caraballo-Rodriguez,
480 F.3d 62
, 71 (1st Cir. 2007); see Carl Wilson Mullis,
Misprision of Felony: A Reappraisal, 23 Emory L.J. 1095 (1974). It would be odd to think that
this reporting duty turned the entire populace into government actors. Cf. Doe v. Rains Cnty.
Indep. Sch. Dist.,
66 F.3d 1402
, 1411 (5th Cir. 1995). Indeed, English law imposed a harsher
sentence on a “public officer” who failed to report a crime (as compared to a “common person”);
it did not treat everyone as a government officer. 4 William Blackstone, Commentaries on the
Laws of England *121. At the least, Miller has not shown that this common reporting duty turns
private parties into public actors whenever they do something other than disclose a crime, such
as voluntarily investigate it.
3. Did Google have a nexus to government actors? Private action might still be
attributed to the government if “a sufficiently close nexus” exists between a private party and
government actors.
Jackson, 419 U.S. at 351
; cf.
Byars, 273 U.S. at 32
–34. Our traditions can
shed light on the required “nexus.” Cf.
Ackerman, 831 F.3d at 1301
. At common law, for
example, a conspirator’s actions were imputed to coconspirators, so private action could be
treated as government action if private and public actors conspired to violate constitutional
rights. Rudd v. City of Norton Shores,
977 F.3d 503
, 512–13 (6th Cir. 2020). Similarly, at
No. 18-5578 United States v. Miller Page 14
common law, an agency relationship was created through a “manifestation of consent by one
person to another that the other shall act on his behalf and subject to his control, and consent by
the other so to act.”
Ackerman, 831 F.3d at 1301
(quoting Restatement (Second) of Agency § 1
(Am. L. Inst. 1958)). In the search context, our cases have asked two questions to identify these
constitutional agency relationships: What was the private party’s intent in undertaking a search?
And did the government acquiesce to the search? See United States v. Bowers,
594 F.3d 522
,
525–26 (6th Cir. 2010).
Miller failed to show that Google acted as a government agent under this test. Consider
Google’s intent. Miller cites nothing suggesting that it intended to act as a police agent. Google
instead sought to rid its virtual spaces of criminal activity for the same reason that shopkeepers
have sought to rid their physical spaces of criminal activity: to protect their businesses. See
Chapman, 319 F.3d at 834
. Google does not want its services to become a “haven for abusive
content” because customers will stop using them if that occurs. McGoff Decl., R.33-1,
PageID#161; see
Stevenson, 727 F.3d at 830
–31. And Google “cooperated” with law
enforcement in this case only by sending a report. Yet courts typically reject arguments that a
private party’s decision to call 911 or report a crime creates an “agency” relationship with the
responding authorities. See, e.g., Moldowan v. City of Warren,
578 F.3d 351
, 399 (6th Cir.
2009).
Now consider the government’s perspective. Miller again cites no evidence that
Detective Schihl or any other law-enforcement officer influenced Google’s decision to scan the
files in the July 9 email for hash-value matches. See
Richardson, 607 F.3d at 364
–65. Police got
involved only after Google had performed that scan and uncovered the crime. See
Burdeau, 256 U.S. at 474
–75; cf. United States v. Booker,
728 F.3d 535
, 540–45 (6th Cir. 2013).
Miller responds that Google has cooperated with NCMEC in other ways, including by
participating in an NCMEC-led exchange of child-pornography hash values and by helping
design NCMEC’s standard report. Miller argues that these activities create a nexus with the
government because he asks us to treat NCMEC, a private entity, as a government actor. The
Tenth Circuit viewed NCMEC in that light.
Ackerman, 831 F.3d at 1295
–1300. We need not
take a position on it. Even if NCMEC were a government actor, these activities do not show that
No. 18-5578 United States v. Miller Page 15
Google acted as an NCMEC “agent” when engaging in the specific hash-value scanning at issue
here. Google did not even scan for any NCMEC-provided hash values during the relevant time.
McGoff Decl., R.33-1, PageID#162. And child pornography is tragically common. So it makes
sense for providers that must report it to create a generic form for their “convenience,” whether
or not they have agreed with government actors to conduct searches. See Gramenos v. Jewel
Cos.,
797 F.2d 432
, 435–36 (7th Cir. 1986). Google’s hash-value matching thus did not
implicate the Fourth Amendment.
B. Was Detective Schihl’s viewing of the images an “unreasonable search”?
Unable to rely on Google’s private actions, Miller turns to Detective Schihl’s public
actions. Miller argues that Schihl conducted an illegal “search” when, without a warrant, he
viewed the files that Google sent. In recent years, the Supreme Court has followed two
approaches to decide whether a Fourth Amendment “search” has occurred. Taylor v. City of
Saginaw,
922 F.3d 328
, 332 (6th Cir. 2019). Miller invokes both. Using the Supreme Court’s
primary definition of a “search,” he argues that Detective Schihl invaded his “reasonable
expectation of privacy” when viewing the files. Using an alternative property-based definition,
Miller also argues that Schihl committed a “trespass” when viewing the files. We address each
argument in turn.
1. Did Detective Schihl invade Miller’s reasonable expectation of privacy?
When interpreting the Fourth Amendment over the last fifty years, the Supreme Court has
typically not relied on the usual definition of the word “search” (“[t]o look over or through for
the purpose of finding something”). Kyllo v. United States,
533 U.S. 27
, 32 n.1 (2001) (quoting
Noah Webster, An American Dictionary of the English Language 66 (1828) (reprint 6th ed.
1989)); Morgan v. Fairfield Cnty.,
903 F.3d 553
, 570–72 (6th Cir. 2018) (Thapar, J.,
concurring). Since Katz v. United States,
389 U.S. 347
(1967), the Court has instead defined the
word to mean a government intrusion into a person’s “expectation of privacy that society is
prepared to consider reasonable.” United States v. Warshak,
631 F.3d 266
, 284 (6th Cir. 2010)
(quoting
Jacobsen, 466 U.S. at 113
). This definition requires us to consider whether a person
No. 18-5578 United States v. Miller Page 16
has an expectation of privacy in the space the government invaded and whether that subjective
expectation is objectively reasonable.
Id. We thus must
consider whether Miller had a reasonable expectation of privacy in the two
files that Detective Schihl viewed. We begin, though, by identifying two questions that we need
not consider. The first: Did Miller have a reasonable expectation of privacy in his Gmail
account? Our court has held that individuals generally have reasonable expectations of privacy
in the emails that they send through commercial providers like Google.
Id. at 283–88.
(Caselaw
on this issue remains “surprisingly sparse” outside our circuit. 2 Wayne R. LaFave et al., Crim.
Proc. § 4.4(c) (4th ed.), Westlaw (database updated Dec. 2019).) Yet Google’s terms of service
also permit it to view its customers’ content for illegal items. Warshak added “that a subscriber
agreement might, in some cases, be sweeping enough to defeat a reasonable expectation of
privacy in the contents of an email account” (while suggesting that this outcome would be
rare). 631 F.3d at 286
. But here we need not consider whether Google’s terms are of the “sweeping”
sort and will assume that Miller had a reasonable expectation of privacy in his email.
The second: Did the hash-value matching “invade” Miller’s reasonable expectation of
privacy? According to the Supreme Court, binary searches that disclose only whether a space
contains contraband are not Fourth Amendment “searches.” Illinois v. Caballes,
543 U.S. 405
,
408 (2005). The Court has held, for example, that the government does not invade a reasonable
expectation of privacy when a police dog sniffs luggage for drugs. United States v. Place,
462 U.S. 696
, 706–07 (1983). Yet the Court has also held that a thermal-imaging device
detecting the heat emanating from a house invades such an expectation because it can show more
than illegal growing operations (such as the “hour each night the lady of the house takes her
daily sauna and bath”).
Kyllo, 533 U.S. at 38
. Which category does hash-value matching fall
within? Is it like a dog sniff? Or a thermal-imaging device? We also need not consider this
question and will assume that hash-value searching counts as an invasion of a reasonable
expectation of privacy. Cf. Richard P. Salgado, Fourth Amendment Search and the Power of the
Hash, 119 Harv. L. Rev. F. 38 (2005).
We do not resolve these questions because Detective Schihl did not monitor the Gmail
account. Google did. This case thus concerns another part of the Court’s expectation-of-privacy
No. 18-5578 United States v. Miller Page 17
test known as the “private-search doctrine.” See United States v. Lichtenberger,
786 F.3d 478
,
481–82 (6th Cir. 2015); see also United States v. Reddick,
900 F.3d 636
, 637 (5th Cir. 2018).
The Court has held that government conduct does not infringe a reasonable expectation of
privacy (or qualify as a “search”) if the conduct does not exceed the “scope” of an earlier private
search.
Jacobsen, 466 U.S. at 115
. Two cases created this doctrine and illustrate its boundaries.
Id. at 118–26;
Walter v. United States,
447 U.S. 649
, 653–59 (1980) (Stevens, J., opinion).
Start with Jacobsen. There, Federal Express employees opened a package for insurance
reasons because it had been damaged in
route. 466 U.S. at 111
. Within this box, they
discovered a tube “made of the silver tape used on basement ducts” covered by newspaper.
Id. They cut open
the tube and found bags with white powder.
Id. The employees returned
the bags
to the tube and the tube to the box and called the police.
Id. A DEA agent
arrived and took
everything back out.
Id. The agent also
conducted a field test of the powder to determine if it
was cocaine.
Id. at 111–12
, 122.
The Court rejected a Fourth Amendment challenge to the
agent’s actions.
Id. at 113–26.
It described the key question as whether those actions “exceeded
the scope” of the private search.
Id. at 115.
To answer this question, the Court divided the
actions into two parts, separately analyzing the agent’s decision to examine the box and test the
powder. As for the examination, the Court held that the agent’s conduct “infringed no legitimate
expectation of privacy and hence was not a ‘search’” because the employees had also searched
the box and made it freely available.
Id. at 118–20.
As for the testing, the Court concluded that
it exceeded the scope of the private search.
Id. at 122.
But it held that the testing was not a
“search” for a different reason: because, like a dog sniff, it could reveal only whether the powder
was (or was not) cocaine.
Id. at 123.
Turn to Walter. There, packages containing boxes of films were delivered to the wrong
company. 447 U.S. at 651
(Stevens, J., opinion). The company’s employees opened the
packages and discovered that the boxes had “explicit descriptions” suggesting the films were
obscene.
Id. at 652.
After the employees called the FBI, agents watched the films to confirm
their obscenity status.
Id. In a fractured
decision, the Court found a Fourth Amendment
violation from the decision to watch the films without obtaining a warrant. See
Jacobsen, 466 U.S. at 115
–16. Justice Stevens’s opinion reasoned that “the unauthorized exhibition of the films
No. 18-5578 United States v. Miller Page 18
constituted an unreasonable invasion of their owner’s constitutionally protected interest in
privacy.” 447 U.S. at 654
(Stevens, J., opinion). The private employees had seen only the
labels, and watching the films was a “significant expansion” of that search.
Id. at 657;
see also
id. at 661–62
(White, J., concurring in part and concurring in the judgment).
What rule emerges from these cases to decide when government actions “exceed[] the
scope of the private search”?
Jacobsen, 466 U.S. at 115
. Jacobsen suggested that the box
“could no longer support any expectation of privacy” because “there was a virtual certainty” that
the DEA agent would learn nothing more by reopening the box than what the FedEx employees
had learned in their initial search of it.
Id. at 119, 120
n.17, 121. Walter suggested that the films
could support an expectation of privacy because the FBI agents would learn much more by
watching the films than what the private employees had learned from viewing the labels alone,
which permitted only “inferences about what was on the
films.” 447 U.S. at 657
(Stevens, J.,
opinion). Putting these outcomes together, we have held that the private-search doctrine requires
a private actor’s search to create a “virtual certainty” that a government search will disclose
nothing more than what the private party has already discovered. See
Lichtenberger, 786 F.3d at 488
; cf. United States v. Runyan,
275 F.3d 449
, 463–64 (5th Cir. 2001) (substantial-certainty
test).
Applying this test, we must ask whether Google’s hash-value search of the files using its
digital eyes made it virtually certain that Detective Schihl would discover no more than what
Google had learned when he viewed the images with his human eyes.
Jacobsen, 466 U.S. at 119
. We are helped in this endeavor by two thoughtful decisions applying the private-search
doctrine in this new context.
Reddick, 900 F.3d at 638
–39;
Ackerman, 831 F.3d at 1305
–07.
In Ackerman, AOL matched one image in the defendant’s email with a child-
pornography hash value. AOL sent the email and its four images to
NCMEC. 831 F.3d at 1294
.
An NCMEC analyst viewed the email and images.
Id. In an opinion
by then-Judge Gorsuch, the
Tenth Circuit held that NCMEC’s search exceeded the scope of AOL’s search.
Id. at 1305–06.
AOL learned only that a single image had a hash-value match, but the NCMEC analyst viewed
the entire email.
Id. The analyst’s search
thus disclosed a lot more information: whether the
other images were child pornography and whether the email contained correspondence.
Id. Yet No. 18-5578
United States v. Miller Page 19
Ackerman reserved whether its holding would change if the analyst had viewed only the one
image.
Id. at 1306.
In Reddick, the Fifth Circuit considered this reserved question. There, the defendant
loaded images into a Microsoft account with hash values matching child
pornography. 900 F.3d at 637
–38. Microsoft sent the images to NCMEC, which shared them with a detective.
Id. at 638.
The court held that the detective’s viewing did not exceed the scope of Microsoft’s search.
Id. at 639.
It gave two reasons. Microsoft’s hash-value matching allowed it to identify child
pornography “with almost absolute certainty[.]”
Id. (citation omitted). And
the detective’s
viewing “was akin to the government agents’ decision to conduct chemical tests on the white
powder in Jacobsen.”
Id. Our case is
like Reddick rather than Ackerman because Detective Schihl viewed only files
with hash-value matches. And we agree with Reddick’s holding that the private-search doctrine
applies. But we opt not to rely on Reddick’s second reason: that the detective’s viewing of the
images was like the DEA agent’s testing of the powder in Jacobsen. Jacobsen recognized that
this testing “exceeded the scope” of the FedEx employees’ search, so the Court held that it did
not qualify as a “search” for a reason unrelated to the private-search
doctrine. 466 U.S. at 122
.
The binary test revealed only “whether or not a suspicious white powder was cocaine.”
Id. If the test
came back negative, it would not disclose what the substance was—whether “sugar or
talcum powder.”
Id. This logic does
not cover Schihl’s actions. If the files portrayed something
other than child pornography, Schihl would have learned what they showed—whether an
embarrassing picture of the sender or an innocuous family photo. His inspection (unlike the test)
qualifies as the invasion of a “legitimate privacy interest” unless Google’s actions had already
frustrated the privacy interest in the files.
Id. at 123;
cf. Riley v. California,
573 U.S. 373
, 401
(2014).
Rather than compare Schihl’s viewing of the files to the agent’s field test, we must
compare Google’s search of the files to the FedEx employees’ search of the box. Did Google’s
“electronic” inspection create the same level of certitude as the FedEx employees’ “manual”
inspection that the later government search would reveal nothing more than what the private
parties had already discovered? Recall what Google had learned. At some point, Google
No. 18-5578 United States v. Miller Page 20
employees who are trained on the federal definition of child pornography viewed two images to
confirm that they are illegal child pornography before adding them to its child-pornography
repository. McGoff Decl., R.33-1, PageID#161. Google used its hashing technology to scan the
images and give them hash values.
Id., PageID#161–62. It coded
the files as prepubescent
minors engaged in sex acts.
Id., PageID#162; Rep., R.33-2,
PageID#170–72. Lastly, Google
scanned the two files from Miller’s July 9 email to confirm that those files had the same hash
values and were duplicates of the images that its employees had previously viewed. McGoff
Decl., R.33-1, PageID#161–62.
Jacobsen requires us to apply the public-search doctrine if there is a “virtual certainty”
that Schihl’s viewing of the files would disclose the same images that Google’s employees had
already viewed.
Lichtenberger, 786 F.3d at 488
. At bottom, then, this case turns on the question
whether Google’s hash-value matching is sufficiently reliable. Yet the caselaw leaves unclear
how we should go about answering that question. Should we treat it as a legal issue subject to de
novo review because it is more like a “legislative fact” (to be decided uniformly) than an
“adjudicative fact” (to be decided anew by hundreds of district judges)? Cf. A Woman’s Choice-
East Side Women’s Clinic v. Newman,
305 F.3d 684
, 688 (7th Cir. 2002); Kenneth C. Davis, An
Approach to Problems of Evidence in the Administrative Process, 55 Harv. L. Rev. 364, 402–10
(1942). Or should we treat it as a fact issue subject to clear-error review because it turns on
historical facts about a technology’s reliability? Cf. Glossip v. Gross,
576 U.S. 863
, 881 (2015).
This clear-error standard might at least govern subsidiary questions. Google, for example, used
its own proprietary technology in this case, and presumably a defendant may challenge a specific
program’s reliability even if a general technology is foolproof when performed properly.
Cf. Florida v. Harris,
568 U.S. 237
, 247–48 (2013).
We leave these questions for another day. Miller, who bore the burden of proof, never
“challenge[d] the reliability of hashing” in the district court. United States v. Miller,
2017 WL 2705963
, at *5 n.2 (E.D. Ky. June 23, 2017); see
Baker, 976 F.3d at 645
. The magistrate judge,
whose findings the district court adopted, found that the technology was “highly reliable—akin
to the reliability of DNA.” United States v. Miller,
2017 WL 9325815
, at *10 (E.D. Ky. May 19,
2017). The evidence in one cited case suggested that “[t]he chance of two files coincidentally
No. 18-5578 United States v. Miller Page 21
sharing the same hash value is 1 in 9,223,372,036,854,775,808.” United States v. Dunning,
2015 WL 13736169
, at *2 (E.D. Ky. Oct. 1, 2015) (citation omitted). (That is 1 in 9.2 quintillion in
case you were wondering.) Another cited source suggested that the common algorithms “will
generate numerical identifiers so distinctive that the chance that any two data sets will have the
same one, no matter how similar they appear, is less than one in one billion.” Barbara J.
Rothstein et al., Managing Discovery of Electronic Information: A Pocket Guide for Judges 38
(2d ed. Federal Judicial Center 2012). Miller points us to no contrary sources. This
(unchallenged) information satisfies Jacobsen’s virtual-certainty test and triggers its private-
search doctrine.
New technologies can cut in both directions when courts attempt the difficult task of
applying fixed rules to them. If a private party manually searched just one bankers box, the
police likely would exceed the scope of that search under Jacobsen if they manually searched
many other nearby boxes. Compare United States v. Richards, 301 F. App’x 480, 483 (6th Cir.
2008), with United States v. Williams,
354 F.3d 497
, 510 (6th Cir. 2003). Because a computer
can hold substantially more information than a box, we held in a related context, a private search
of some computer files does not give the government license to search the entire computer.
Lichtenberger, 786 F.3d at 488
–89. We reasoned that the latter search would reveal much more
information and be equivalent to the search of the many other unopened boxes. Id.; see Orin S.
Kerr, Searches and Seizures in a Digital World, 119 Harv. L. Rev. 531, 541–43 (2005).
Here, by contrast, the information on which the district court relied suggests that a
computer’s “virtual” search of a single file creates more certainty about the file’s contents than a
person’s “manual” search of the file. Most people who view images do not use a magnifying
glass to undertake a pixel-by-pixel inspection. Common hash algorithms, by contrast, catalogue
every pixel. Johnson Tr., R.106, PageID#1290–91. Suppose a private party gets only a quick
view of a picture before concluding that it is child pornography and handing the picture to the
police. Cf.
Bowers, 594 F.3d at 524
. Under Jacobsen, that inspection would likely trigger the
private-search doctrine and allow the police to reexamine the picture “more thoroughly,”
Runyan, 275 F.3d at 464
, despite the “risk of a flaw in the [person’s] recollection,”
Jacobsen, 466 U.S. at 119
. What sense would it make to treat a more accurate search of a file differently?
No. 18-5578 United States v. Miller Page 22
In response, Miller compares a hash value to the “explicit descriptions” on the film boxes
that Walter found insufficient to permit the FBI’s viewing of the
films. 447 U.S. at 652
(Stevens, J., opinion). Miller would have a point if Google forwarded the image files to Schihl
based on their names alone: “young - tight fuck.jpg” and “!!!!!!Mom&son7.jpg.” Rep., R.33-2,
PageID#170. But the hash-value searches revealed much more information than those
descriptions. Google’s technology “opened” and “inspected” the files, revealing that they had
the same content as files that Google had already found to be child pornography.
An amicus supporting Miller next points out that the Google employees who add files to
its child-pornography repository might mistake a lawful image for an illegal one. Yet that is not
a type of error that matters under the private-search doctrine. Just because a private party turns
out to be wrong about the legality of an item that the party discloses to police does not mean that
the police violate the Fourth Amendment when they reexamine the item. If, for example, the
powder in Jacobsen had tested negative for cocaine, that result would not have transformed the
DEA agent’s reexamination of the box into a Fourth Amendment “search.”
See 466 U.S. at 123
.
Nor would the police conduct a Fourth Amendment “search” if the pictures that a private party
provides turn out not to be “child pornography” under 18 U.S.C. § 2256. See
Bowers, 594 F.3d at 526
. And Google employees trained on this federal definition are much more likely to
accurately identify child pornography than a person who comes across one disturbing image.
Does Carpenter v. United States,
138 S. Ct. 2206
(2018), change things? It held that an
individual has “a legitimate expectation of privacy in the record of his physical movements as
captured” by cell-site location information—even though this information is kept by (and
disclosed to) a third-party wireless carrier.
Id. at 2217.
The Court reasoned that the tracking of a
person’s cellphone “achieves near perfect surveillance” of the person over the many years that
the carrier retains the data.
Id. at 2218.
We fail to see how this holding can help Miller.
Carpenter may well confirm our prior decision that individuals have a reasonable expectation of
privacy in their emails—even though those emails (like the cellphone data) are kept by third
parties. See
id. at 2222
(citing
Warshak, 631 F.3d at 283
–88);
id. at 2262–63, 2269
(Gorsuch, J.,
dissenting). But Carpenter asked only whether the government engaged in a “search” when it
compelled a carrier to search its records for certain information that the government demanded.
No. 18-5578 United States v. Miller Page 23
Id. at 2222.
Carpenter did not cite Jacobsen, let alone address its private-search doctrine. Here,
moreover, the government did not compel Google’s hash-value matching (unlike the carrier’s
subpoena-induced search of cell-site records). And Miller has no legitimate expectation of
privacy in illegal contraband like child pornography (unlike cell-site records).
Jacobsen, 466 U.S. at 123
. In short, we agree with Reddick’s conclusion that Jacobsen controls this
case. 900 F.3d at 637
–39.
2. Did Detective Schihl conduct a search under a “trespass” approach?
Perhaps Jacobsen should not control. The Supreme Court recently clarified that the
invasion of a “reasonable expectation of privacy” is not the only way to define a Fourth
Amendment “search.” “For much of our history, Fourth Amendment search doctrine was ‘tied to
common-law trespass’ and focused on whether the Government ‘obtains information by
physically intruding on a constitutionally protected area.’”
Carpenter, 138 S. Ct. at 2213
(quoting United States v. Jones,
565 U.S. 400
, 405, 406 n.3 (2012)). Unlike the defendant in
Reddick, Miller asks us to find that Detective Schihl engaged in a search under this alternative
theory.
Jones recently reinvigorated the trespass approach. There, the police attached a GPS
device to the defendant’s car and tracked the car’s movements for
weeks. 565 U.S. at 402
–03.
The government argued that no search occurred because the defendant had no reasonable
expectation of privacy in his movements on public roads.
Id. at 406.
The Court disagreed,
holding that the installation of the GPS device qualified as a “search” because the government
“physically occupied private property for the purpose of obtaining information.”
Id. at 404.
According to the Court, the expectation-of-privacy test can expand the scope of areas protected
by the Fourth Amendment, but it cannot eliminate protection for areas that the traditional
“trespass” definition of a search would cover.
Id. at 405–08;
see also
Taylor, 922 F.3d at 332
–
33.
How might Jones’s property-based approach apply here? An obvious analogy helps
Miller at the outset. The Fourth Amendment protects not just intrusions into a person’s “house,”
but also invasions of the person’s “papers” and “effects.” See U.S. Const. amend. IV. From
No. 18-5578 United States v. Miller Page 24
before the founding, therefore, judges recognized that “[t]he protection of private property
extended to letters, papers, and documents.” Laura K. Donohue, The Original Fourth
Amendment, 83 U. Chi. L. Rev. 1181, 1198 (2016). The famous English cases that drove the
Fourth Amendment’s adoption involved government trespasses to rummage through a person’s
letters and private documents. See Entick v. Carrington, 95 Eng. Rep. 807, 807–08, 817–18
(K.B. 1765); Wilkes v. Wood, 98 Eng. Rep. 489, 491, 498–99 (C.P. 1763). And there can be no
better “analogy from principle to new technology” than from yesterday’s mail to today’s email.
Ackerman, 831 F.3d at 1308
. As our court has explained, “[e]mail is the technological scion of
tangible mail, and it plays an indispensable part in the Information Age.”
Warshak, 631 F.3d at 286
.
Jones thus leads us to consider how courts treated mailed items at the time of the
founding or, perhaps more importantly given Schihl’s status as a state officer, at the time of the
Fourteenth Amendment. This inquiry again helps Miller at first blush. In Ex parte Jackson,
96 U.S. 727
(1877), the Court noted that the right “against unreasonable searches and seizures
extends to” “letters” and “sealed packages” “closed against inspection, wherever they may be.”
Id. at 733.
A governmental opening of sealed mail required a warrant, confirming that this
intrusion was a “search” under a historical understanding.
Id. This conclusion comported
with a
long tradition. Before then, Thomas Cooley had opined that any “proposition to permit letters to
be opened at the discretion of a ministerial officer, would be met with general indignation.”
Thomas M. Cooley, A Treatise on the Constitutional Limitations Which Rest upon the
Legislative Power of the States of the American Union 306–07 n.2 (1868). And the first
Congress had made it a crime for postal employees to “unlawfully” “open[] any letter, packet,
bag or mail of letters[.]” Act of Feb. 20, 1792, § 16, 1 Stat. 232, 236. Here, moreover, the files
in Miller’s email might be analogized to “sealed” letters—such that Schihl’s “opening” of the
files could be characterized as a “trespass to chattels” and an illegal “search.” See
Ackerman, 831 F.3d at 1307
–08. After all, “[o]utside of a few narrow exceptions,” federal law prohibits
providers from disclosing emails to third parties without the “consent of one of the
communicating parties[.]” William Baude & James Y. Stern, The Positive Law Model of the
Fourth Amendment, 129 Harv. L. Rev. 1821, 1875–76 (2016).
No. 18-5578 United States v. Miller Page 25
Yet Miller’s reliance on Jones’s property-based approach encounters trouble when we
consider who committed any trespass (and so any “search”) in this case. The rule that the Fourth
Amendment does not protect against private searches precedes the expectation-of-privacy test
applied in Jacobsen by decades, so the Court was using the earlier “common-law trespass”
approach when it adopted this rule. See
Jones, 565 U.S. at 405
;
Burdeau, 256 U.S. at 475
. And
the rule applied even when a private party committed a trespass. In Burdeau, for example,
parties had illegally “blown open” the safes in which a suspect had kept his private letters and
documents and given these papers to the
government. 256 U.S. at 473
–74. Although the Court
suggested that this suspect had “an unquestionable right of redress against those who illegally
and wrongfully took his private property,” it found that the government’s use of his papers did
not violate the Fourth Amendment (with nary a suggestion that the government needed a warrant
to view them).
Id. at 475.
Even Jackson, while acknowledging the need for a warrant,
recognized that the government could obtain evidence about sealed mail in other ways, such “as
from the parties receiving the letters or packages, or from agents depositing them in the post-
office, or others cognizant of the
facts.” 96 U.S. at 735
. Here then, if Google’s hash-value
matching is akin to a party “opening” a letter, Google might be the one that engaged in the
trespass. And the government’s later review of the already opened files might not be considered
a search—or at least not an unreasonable one. Cf.
Morgan, 903 F.3d at 571
–72 (Thapar, J.,
concurring); Restatement (First) of Torts § 253 (Am. L. Inst. 1934).
At day’s end, Jacobsen does not permit us to consider this subject further. If Detective
Schihl’s viewing of the files would qualify as a “search” under Jones’s trespass approach, the
DEA agent’s examination of the box in that case would also qualify. The Tenth Circuit
suggested that, after Jones, the Supreme Court might today “find that a ‘search’ did take place”
in Jacobsen.
Ackerman, 831 F.3d at 1307
. But the fact remains that Jacobsen held that a search
did not
occur. 466 U.S. at 118
–26. Ackerman’s facts were sufficiently far afield of Jacobsen’s
that the Tenth Circuit found itself unbound by Jacobsen’s
rule. 831 F.3d at 1307
. Our facts, by
contrast, are on all fours with Jacobsen’s (when updated for this new technology).
Reddick, 900 F.3d at 637
–39. No matter how this case should be resolved under a trespass approach, then, our
instructions from the Supreme Court are clear: “[I]f a precedent of this Court has direct
application in a case, yet appears to rest on reasons rejected in some other line of decisions, the
No. 18-5578 United States v. Miller Page 26
Court of Appeals should follow the case which directly controls, leaving to this Court the
prerogative of overruling its own decisions.” Agostini v. Felton,
521 U.S. 203
, 237 (1997)
(citation omitted). We must follow Jacobsen’s legal rule here.
* * *
One last point. The Fourth Amendment does not just prohibit unreasonable “searches”; it
also prohibits unreasonable “seizures.” Miller raises no separate claim that Schihl engaged in an
unreasonable “seizure” through his “assertion of dominion and control over” the digital files sent
by Google.
Jacobsen, 466 U.S. at 120
. (Schihl presumably had a right to seize the files if his
viewing of them did not violate the Fourth Amendment because police may confiscate items that
“are evidence of a crime or contraband.” Soldal v. Cook County,
506 U.S. 56
, 68 (1992).) We
thus need not consider how the Fourth Amendment’s seizure rules should extend to digital
information that “can be copied repeatedly, instantly, and freely,” “zipped around the world in a
split second,” and “stored anywhere and without cost.” Orin S. Kerr, Applying the Fourth
Amendment to the Internet: A General Approach, 62 Stan. L. Rev. 1005, 1014 (2010).
III. Sixth Amendment
Miller next argues that the district court violated the Sixth Amendment’s Confrontation
Clause by admitting NCMEC’s CyberTipline Report into evidence. He may be correct that the
admission of certain portions of this report violated the Confrontation Clause. But his claim fails
because he challenges only automated portions that did not.
A
The Confrontation Clause gives “the accused” in “all criminal prosecutions” the right “to
be confronted with the witnesses against him[.]” U.S. Const. amend. VI. This clause prohibits
the government from introducing some out-of-court statements by individuals who do not testify
at trial and whom the defendant has not had the opportunity to “confront.” See Crawford v.
Washington,
541 U.S. 36
, 50–54 (2004). Yet the clause does not bar the use of all such hearsay.
Its text gives the defendant a right to cross-examine “witnesses,” not “speakers.” A “witness” is
one who provides “[t]estimony,” that is, “[a] solemn declaration or affirmation made for the
No. 18-5578 United States v. Miller Page 27
purpose of establishing or proving some fact.”
Id. at 51
(quoting 2 Noah Webster, An American
Dictionary of the English Language (1828)). The nature of an out-of-court statement thus
determines whether the clause gives the defendant a right to cross-examine the person who made
it. If an out-of-court statement is akin to “testimony,” the clause prohibits the government’s use
of the statement unless the person who made it is unavailable to testify and the defendant has had
a prior opportunity for cross-examination. See
id. at 52, 68.
If an out-of-court statement is not
akin to testimony, the clause falls to the side and leaves the statement’s admissibility to the rules
of evidence. See Ohio v. Clark,
576 U.S. 237
, 244–45 (2015).
The constitutional dividing line between admissible and inadmissible hearsay thus turns
on the difference between “testimonial” and “nontestimonial” statements. To distinguish
between these two types of statements, the Supreme Court has adopted a “primary-purpose” test.
See Davis v. Washington,
547 U.S. 813
, 822 (2006). The Court has described this test in varying
ways. It has sometimes noted that a statement made during an out-of-court conversation is
testimonial when, “in light of all the circumstances, viewed objectively, the ‘primary purpose’ of
the conversation was to ‘creat[e] an out-of-court substitute for trial testimony.’”
Clark, 576 U.S. at 245
(quoting Michigan v. Bryant,
562 U.S. 344
, 358 (2011)). It has other times noted that an
out-of-court statement is testimonial if it has “a ‘primary purpose’ of ‘establish[ing] or prov[ing]
past events potentially relevant to later criminal prosecution.’” Bullcoming v. New Mexico,
564 U.S. 647
, 659 n.6 (2011) (quoting
Davis, 547 U.S. at 822
). Either way, the prime example of
this sort of out-of-court testimony is a person’s statement to the police about a crime during a
formal interrogation. See
Crawford, 541 U.S. at 53
. Conversely, a person does not give
“testimony” when, for example, the person calls 911 to request help during an emergency. See
Davis, 547 U.S. at 827
–29. The “primary purpose of [that] interrogation is to enable police
assistance to meet an ongoing emergency,” not to establish a prior fact or create trial evidence.
Id. at 822.
This dividing line extends to statements made in reports. On the one hand, a formal
report created for the purpose of proving a fact at trial is testimonial, and a defendant has the
right to cross-examine the report’s author. See
Bullcoming, 564 U.S. at 657
–58. Laboratory
reports made for trial are good examples of these “testimonial” reports. In a drug-trafficking
No. 18-5578 United States v. Miller Page 28
trial, the Supreme Court held that the government could not introduce an analyst’s sworn report
asserting that a substance connected to the defendant was cocaine. See Melendez-Diaz v.
Massachusetts,
557 U.S. 305
, 309–11 (2009). And in a drunk-driving trial, the Court held that
the government could not use an analyst’s formal, signed certificate asserting that a blood-
alcohol test showed the defendant’s blood-alcohol level. See
Bullcoming, 564 U.S. at 658
–65.
On the other hand, a report written for a purpose unrelated to creating evidence or
proving past events is generally nontestimonial. Business records are the best examples of these
reports. Those records are generally admissible without cross-examination of their authors
because they are “created for the administration of an entity’s affairs and not for the purpose of
establishing or proving some fact at trial[.]”
Id. at 659
n.6 (quoting
Melendez-Diaz, 557 U.S. at 324
). Even some lab reports might fall on this nontestimonial side of things. See Williams v.
Illinois,
567 U.S. 50
, 58 (2012) (plurality opinion). In Williams, a fractured Supreme Court
found nontestimonial a report that contained “a male DNA profile produced from semen taken
from [the vaginal] swabs” of a rape victim.
Id. at 59.
A four-Justice plurality reasoned that the
report was nontestimonial because its primary purpose was “to catch a dangerous rapist who was
still at large,” not to prove a fact for trial.
Id. at 84.
Justice Thomas relied on a different
rationale. He reasoned that this DNA report (unlike the reports in Bullcoming and Melendez-
Diaz) was nontestimonial because it lacked sufficient solemnity.
Id. at 111–12
(Thomas, J.,
concurring in the judgment). Although signed by reviewers, the report nowhere “attest[ed] that
its statements accurately reflect[ed] the DNA testing processes used or the results obtained.”
Id. at 111.
B
Miller challenges the admission of the CyberTipline Report under these rules. Recall that
this report had three sections with three “authors.” In Section A, Google identified the date that
the Gmail account uploaded the child-pornography files and the IP addresses used to access this
account. Rep., R.33-2, PageID#169–71. Section A describes itself as an “Automatic Report,”
id., PageID#169, and Miller
does not dispute the government’s claim that no Google employee
manually entered information into this section. Lindsey Olson, the NCMEC director who
oversees the CyberTipline program, added that NCMEC could not change anything in this
No. 18-5578 United States v. Miller Page 29
section. Olson Tr., R.105, PageID#1088. In Section B, NCMEC’s systems automatically
recorded the results of an automated search for the location of the Google-provided IP addresses.
Rep., R.33-2, PageID#172–73. This section listed Fort Mitchell as the location of the IP
addresses, included the same longitude and latitude coordinates for both IP addresses, and
identified Time Warner Cable as the internet service provider.
Id. In Section C,
an NCMEC
analyst recorded the results of a manual search for public information connected to the Gmail
account.
Id., PageID#173–77. The analyst
also attached a printout of a profile page with a
picture of “Bill M” from the social-media website “Tagged.”
Id., PageID#177. Miller argues
that the admission of this report violated the Confrontation Clause because
it was testimonial and he did not have the opportunity to cross-examine the NCMEC analyst
about the location information in Section B. Miller may well be correct that the NCMEC
analyst’s statements were testimonial, but he is wrong in concluding that this fact gave him a
right to cross-examine the analyst about statements that the analyst did not make.
Start with the analyst’s statements in Section C describing the results of the analyst’s
manual searches. Were they testimonial? It might depend on which of the Supreme Court’s
varied “primary-purpose” tests we apply. As noted, sometimes the Court has described a
testimonial statement as one made with the general “purpose of establishing or proving some
fact.”
Melendez-Diaz, 557 U.S. at 310
(quoting
Crawford, 541 U.S. at 51
). When the test is
defined this way, Miller has good grounds to conclude that the analyst’s statements qualify. The
analyst knew that a child-pornography crime likely had been committed and was searching
public information to establish the identity of the suspect who had used the incriminating Gmail
account. When the analyst noted that this email was associated with a profile page on a social-
media site, the analyst made that statement “for the purpose of establishing” that very fact—that
this email address was connected to “Bill M.” on “Tagged.”
Id. And, considered objectively,
the analyst well knew that this information would be shared with investigating police. For
essentially these reasons, the First Circuit held in a similar case that Yahoo reports sent to
NCMEC and NCMEC reports sent to police both are testimonial. See
Cameron, 699 F.3d at 642
–52.
No. 18-5578 United States v. Miller Page 30
Yet the Supreme Court has sometimes defined the primary-purpose test more narrowly.
It has noted that a statement is testimonial if it is made with the specific “purpose of creating an
out-of-court substitute for trial testimony.”
Clark, 576 U.S. at 250
–51 (quoting
Bryant, 562 U.S. at 358
). The analyst’s statements might not satisfy this narrower definition. In two ways, the
statements also resemble the report containing a DNA profile that Williams found
nontestimonial. The first way: Like the technicians in Williams, the analyst did not have a
specific target in mind when undertaking the searches.
See 567 U.S. at 84
–85 (plurality
opinion). So the analyst might have made the statements “not to accuse [Miller] or to create
evidence for use at trial,” but “to catch” the at-large person who had sent child pornography.
Id. at 84.
The second way: In terms of their solemnity, the analyst’s statements are more like the
informal report in Williams than the sworn statements in Melendez-Diaz or the signed certificate
in Bullcoming. The analyst did not sign the report or certify its accuracy. Rep., R.33-2,
PageID#174–77. And the report disclaims its trustworthiness, noting that the “CyberTipline
cannot confirm the accuracy of information found in public records or whether the results are
affiliated with any parties relating to this report.”
Id., PageID#174. Justice Thomas’s
separate
interpretation thus might also suggest that the statements are nontestimonial. See
Williams, 567 U.S. at 111
–12 (Thomas, J., concurring in the judgment).
All of this shows that the Supreme Court may one day need to clarify its primary-purpose
test. Ultimately, however, we need not resolve how this test applies to the NCMEC analyst’s
own statements. That is because Miller raises no objection to his inability to cross-examine the
analyst about the statements in Section C. Rather, Miller objects that he could not cross-examine
the analyst about the information identifying the location of the Google-provided IP addresses in
Section B. Miller’s claim that he had a right to confront the analyst about Section B’s
information contains both a factual error and a legal one. Factually, the NCMEC analyst was not
the “speaker” who made the statements in Section B. As Olson testified, NCMEC’s systems
automatically generated this information once NCMEC received the report. Olson Tr., R.95,
PageID#541–42.
Legally, the admissibility of this information turns on the rules of evidence, not the
Confrontation Clause. The clause limits its reach to “witnesses.” U.S. Const. amend. VI. The
No. 18-5578 United States v. Miller Page 31
word “witness” has a common meaning covering “[o]ne” (i.e., a person) “who gives testimony.”
Webster, supra
, American Dictionary; see 2 T.E. Tomlins, The Law Dictionary 986 (1810). The
backdrop against which the clause was enacted also confirms that it existed to prevent the use of
a person’s out-of-court statements to convict the defendant.
Crawford, 541 U.S. at 43
–50. This
text and history show that the clause encompasses statements by people, not information by
machines. A computer system that generates data and inputs the data into a report cannot be
described as a “witness” that gives “testimony.” If the system were the witness, how would the
government make it available for cross-examination? Would it have to be asked questions in
computer code?
Unsurprisingly, courts have agreed that the Confrontation Clause does not apply to
information generated by machines. See United States v. Summers,
666 F.3d 192
, 202–03 (4th
Cir. 2011); United States v. Lamons,
532 F.3d 1251
, 1263–65 (11th Cir. 2008); United States v.
Moon,
512 F.3d 359
, 362 (7th Cir. 2008). Relatedly, they have recognized that machine-
generated information does not qualify as “hearsay” under the rules of evidence because the
information is not a statement by a person. See Fed. R. Evid. 801(a)–(c); see, e.g., United States
v. Channon,
881 F.3d 806
, 810–11 (10th Cir. 2018); United States v. Lizarraga-Tirado,
789 F.3d 1107
, 1109–10 (9th Cir. 2015). This precedent extends to the data produced by NCMEC’s
systems.
Perhaps Miller could respond that the computer coder who developed the program that
performs these functions should be subject to cross-examination about the program’s reliability.
Bullcoming, for example, rejected the argument that the “machine” performing the blood-alcohol
test was the “speaker” when the analyst himself stated that he had performed the test on the
machine and described the results.
See 564 U.S. at 659
–61. And the Eighth Circuit has noted
that “[m]achine-generated records . . . can become hearsay when developed with human input.”
United States v. Juhic,
954 F.3d 1084
, 1089 (8th Cir. 2020). But neither Bullcoming nor
Melendez-Diaz can be extended as far as Miller needs. Both cases held only that an analyst who
used a machine to perform a test and who made statements about the results must be subject to
cross-examination over the statements. Melendez-Diaz disclaimed any broader notion that the
Confrontation Clause reached everyone “whose testimony may be relevant in establishing
No. 18-5578 United States v. Miller Page 32
the . . . accuracy of the testing device” used in a
case. 557 U.S. at 311
n.1. And Bullcoming
nowhere suggested that the clause gave the defendant the right to cross-examine the creator of
the “gas chromatograph machine” (the machine that tested the blood-alcohol
level). 564 U.S. at 654
.
The same logic applies here. The Confrontation Clause does not give Miller a right to
cross-examine the individuals who created NCMEC’s systems. And Miller identifies no other
individuals like the analysts in Bullcoming and Melendez-Diaz who performed specific tests and
made statements about their results. Here, the systems automatically performed the “search” (or
“test”) for the location of the IP addresses. And they automatically recorded the results (or
“statements”) in Section B. This case involved no “human input” because the NCMEC analyst
undertook neither the search nor the recording.
Juhic, 954 F.3d at 1089
. Miller thus had no
Confrontation Clause right to cross-examine the analyst about the information in Section B.
C
In response, Miller does not challenge the legal point that data from computers are not
“testimony” from “witnesses.” Rather, he challenges the factual point that NCMEC’s systems
automatically imported the location information into Section B. According to Miller, the record
leaves “entirely unclear” whether the NCMEC analyst helped. Not so. As Miller’s support, he
cites Olson’s background testimony that when NCMEC receives a report, “the analysts may add
additional value to” it and “may review the information that’s been provided and try to locate or
provide a location.” Olson Tr., R.105, PageID#1080. Yet Olson clarified that the analysts
historically had to search for the geographic area of IP addresses, but that Section B was
“basically automating” “a lot of those things that [analysts] used to do” manually.
Id., PageID#1092. She went
on: “[T]he system is able to take the IP address, [and] use publicly
available tools to geo locate the IP address.”
Id., PageID#1093. Another NCMEC
witness at an
earlier stage of the case confirmed that “NCMEC systems performed a publicly-available WhoIs
lookup related to the [two] IP addresses reported by Google.” Shehan Decl., R.33-6,
PageID#196. Section B itself shows that it contained automated information. The report’s table
of contents describes “Section B” as “Automated Information Added by NCMEC Systems.”
Rep., R.33-2, PageID#168, 172. Section B then notes: “The information found in Section B of
No. 18-5578 United States v. Miller Page 33
this CyberTipline Report has been automatically generated by NCMEC Systems.”
Id., PageID#172. The record
is clear: NCMEC’s systems automatically produced the information
about which Miller complains.
That this information was automated dooms Miller’s reliance on the First Circuit’s
decision in Cameron. As noted, Cameron held that statements in reports that Yahoo provided to
NCMEC and that NCMEC provided to the police were
testimonial. 699 F.3d at 642
–52. But
Cameron made clear that the Yahoo reports “were made by a person with knowledge of their
contents”; they were not made by a computer system.
Id. at 642
(emphasis added). And
Cameron made clear that an “NCMEC employee” had prepared the CyberTipline Reports at
issue.
Id. at 651.
That this information was automated also dooms Miller’s claimed prejudice from the lack
of cross-examination. He argues that he was harmed by his inability to cross-examine the
analyst about the information in Section B because some of this information may have been
exculpatory. Specifically, Miller’s counsel used the identified longitude and latitude coordinates
to do his own manual “geolocation,” and counsel’s research allegedly revealed that the
coordinates pinpointed to a location other than Miller’s home. Appellant Br. 26 & Ex. A. Miller
argues that the analyst’s failure to testify barred him from engaging in any inquiry on this critical
subject. Yet again, the analyst did not input these coordinates into Section B, so Miller had no
Confrontation Clause right to cross-examine the analyst about statements the analyst did not
make. And nothing prevented Miller from cross-examining NCMEC’s director (Olson) about
the accuracy of its systems or how those systems chose these coordinates. The district court
indicated that it would have allowed Miller’s counsel to pursue this line of questioning with
Olson. Tr., R.97, PageID#902.
Miller’s counsel decided against this cross-examination not because the analyst failed to
testify but for a strategic reason: Olson did not mention the coordinates or suggest that they
identified Miller’s home.
Id. Yet the government
unfairly undermined this strategy, Miller
rightly notes, when its counsel argued during closing that the longitude and latitude coordinates
had been “[t]he defendant’s house.”
Id., PageID#891. The government
concedes that this
statement had no basis in evidence. But the Confrontation Clause does not regulate an improper
No. 18-5578 United States v. Miller Page 34
closing argument. That is the domain of the Due Process Clause (or our general supervisory
powers). See Donnelly v. DeChristoforo,
416 U.S. 637
, 642–45 (1974). And Miller asserted no
due-process or prosecutorial-misconduct challenge to the government’s argument until his reply
brief. That came too late. See Island Creek Coal Co. v. Wilkerson,
910 F.3d 254
, 256 (6th Cir.
2018).
IV. Sufficiency of the Evidence
Miller ends with the claim that the government presented insufficient evidence to convict
him. To succeed on this claim, Miller must show that no “rational trier of fact could have found
the essential elements of the crime beyond a reasonable doubt.” United States v. Potter,
927 F.3d 446
, 453 (6th Cir. 2019) (citation omitted). Miller does not dispute that a rational jury
could have found that someone committed the essential elements of the charged child-
pornography offenses beyond a reasonable doubt. He asserts only that no rational jury could
have found that he committed those offenses given the other evidence implicating his brother—
Fred Miller.
This argument misunderstands our standard of review. We readily agree that Miller
presented some evidence pointing to his brother Fred. A few emails sent to the Gmail account,
for example, were addressed to Fred about a cellphone rebate, and Fred visited Miller’s home
once a week or so. But simply because another jury might have harbored doubt based on this
evidence does not allow us to overturn the jury’s verdict that Miller was the guilty party. On a
sufficiency-of-the-evidence challenge, we consider only whether “the government’s case was so
lacking that it should not have even been submitted to the jury.” Musacchio v. United States,
136 S. Ct. 709
, 715 (2016) (citation omitted). That “limited review” bars us from reweighing the
evidence or deciding for ourselves whether Miller or the government put on the more convincing
case. United States v. Maya,
966 F.3d 493
, 499 (6th Cir. 2020) (quoting
Musacchio, 136 S. Ct. at 715
). We ask merely whether Miller’s jury behaved irrationally in concluding beyond a
reasonable doubt that he rather than Fred committed these crimes, drawing all reasonable
inferences in the government’s favor. See United States v. Braswell, 704 F. App’x 528, 539–40
(6th Cir. 2017).
No. 18-5578 United States v. Miller Page 35
The government more than met its burden under these rules. Substantial evidence
pointed to Miller rather than Fred as the person who committed the child-pornography offenses.
Consider the emails. Google’s records listed the subscriber for the Gmail account as “Bill
Miller.” Many emails and messages sent from this account also propositioned women using the
same story. A person named “Bill” would, among other things, allege that his wife “Tania” had
died (Tania is the name of Miller’s wife), and would send personal photos of Miller (not his
brother). This account was also connected to a “Tagged” social-media profile that included
Miller’s picture. And the IP address for the July 9 email matched a Time Warner Cable
subscription from Miller’s house, not Fred’s.
Next consider the external hard drive with the child-pornography files. It was found at
Miller’s house, not Fred’s. In an interview with Detective Schihl, Miller admitted that he owned
the hard drive and that it contained child pornography (although he claimed that it had been on
the drive when he bought it a year earlier). That hard drive, which had child pornography neatly
catalogued in file folders with names like “incest” or “pre-teen,” contained a file folder named
“me” with pictures of Miller. And it had Skype messages asking for child pornography using the
display name “Bill Miller.” A forensic examination also revealed that the child-pornography
folders were created on the hard drive just a week before the July 9 email, not a year before as
Miller had claimed.
Against this evidence, Miller cites United States v. Lowe,
795 F.3d 519
(6th Cir. 2015).
There, the government learned that an IP address at the home of the defendant, James Lowe, was
sharing child pornography over a peer-to-peer network.
Id. at 520.
Lowe lived at this home with
his wife and an adopted child.
Id. The police searched
the home and found a laptop that
contained substantial child pornography.
Id. at 521.
After a jury convicted Lowe of various
child-pornography offenses, we held that the evidence was insufficient to prove that Lowe had
knowingly downloaded the child-pornography onto the laptop.
Id. at 523.
We relied on the fact
that Lowe “shared his home with two other people, both of whom could access” the laptop and
the peer-to-peer file-sharing program without entering passwords.
Id. Critically, no circumstantial
evidence—for example, the laptop’s browser history—suggested that it was Lowe
rather than the others who had used this laptop to download child pornography.
Id. at 523–24.
No. 18-5578 United States v. Miller Page 36
“Simply put, this case is not at all like . . . Lowe.” United States v. Niggemann,
881 F.3d 976
, 981 (7th Cir. 2018). The circumstantial evidence here, unlike the circumstantial evidence
there, sufficed for a rational jury to exclude Fred beyond a reasonable doubt. See United States
v. Clingman, 521 F. App’x 386, 395–96 (6th Cir. 2013). In other cases rejecting sufficiency
challenges like Miller’s, courts have pointed to such circumstantial evidence as the fact that the
incriminating account (like the Gmail account) was registered to the defendant. See
Niggemann, 881 F.3d at 980
. These cases have also pointed to the fact that a profile page of a relevant
account included the defendant’s picture (like the “Tagged” account) or the fact that the emails
sent from a relevant account included “identifying photographs” and used the defendant’s name
(like many of the emails from the Gmail account). See United States v. Woerner,
709 F.3d 527
,
536–37 (5th Cir. 2013); see also United States v. Farnum, 811 F. App’x 18, 20 (2d Cir. 2020)
(order). And these cases have pointed to the defendant’s own statements that he possessed the
child pornography (like the statements that Miller made to Detective Schihl).
Woerner, 709 F.3d at 537
.
We affirm. |
4,639,308 | 2020-12-03 20:00:43.65237+00 | null | http://www.opn.ca6.uscourts.gov/opinions.pdf/20a0681n-06.pdf | NOT RECOMMENDED FOR PUBLICATION
File Name: 20a0681n.06
CASE No. 20-5218
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES of AMERICA, ) FILED
) Dec 03, 2020
Plaintiff-Appellee, ) DEBORAH S. HUNT, Clerk
)
v. ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
TYQUEZ URSERY, ) COURT FOR THE MIDDLE
) DISTRICT OF TENNESSEE
Defendant-Appellant. )
)
Before: BATCHELDER, CLAY, and BUSH, Circuit Judges.
ALICE M. BATCHELDER, Circuit Judge. When sentencing Tyquez Ursery as a felon
in possession of a firearm, 18 U.S.C. § 922(g)(1), the district court found that three of his prior
convictions were predicate felonies under the Armed Career Criminal Act, § 924(e)(2)(B),
triggering the mandatory minimum sentence, § 924(e)(1). Those were Tennessee convictions for
aggravated burglary, T.C.A. § 39-14-403, facilitation of especially aggravated robbery, and
facilitation of attempted especially aggravated robbery, T.C.A. §§ 39-11-403, & -13-403.
Under Sixth Circuit precedent, Tennessee aggravated burglary is an ACCA predicate
offense. See Brumbach v. United States,
929 F.3d 791
, 794 (6th Cir. 2019). And in United States
v. Gloss,
661 F.3d 317
, 320 (6th Cir. 2011), we held that Tennessee “facilitation of aggravated
robbery is a violent felony within the meaning of § 924(e)(2)(B)(i).” Although Ursery’s
convictions were not for facilitation of aggravated robbery, the only difference between
“Tennessee aggravated robbery” and “Tennessee especially aggravated robbery” is that aggravated
robbery includes as an element that the robbery be “[a]ccomplished with a deadly weapon or by
display of any article used or fashioned to lead the victim to reasonably believe it to be a deadly
Case No. 20-5218, United States v. Ursery
weapon,” T.C.A. § 39–13–402, while especially aggravated robbery requires that the robbery be
“[a]ccomplished with a deadly weapon,” T.C.A. § 39–13–403. Therefore, Gloss is directly on
point.
Ursery argues that neither offense should be an ACCA predicate. Even if he were correct,
this panel cannot overrule published circuit precedent. See
Brumbach, 929 F.3d at 795
.
Ursery also argues that the two facilitation convictions should count as a single predicate
because, even though they were committed on different dates (19 days apart), the date of the
offense(s) was not an element of the crime. But, again, circuit precedent forecloses this argument.
See United States v. Hennessee,
932 F.3d 437
, 443-44 (6th Cir. 2019).
We AFFIRM the judgment of the district court.
2 |
4,639,309 | 2020-12-03 20:02:27.457719+00 | null | https://www.courts.ca.gov/opinions/nonpub/B294103M.PDF | Filed 12/3/20 Razon v. Southern California Permanente etc. CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
REINIER RAZON, B294103
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC656671)
v.
ORDER MODIFYING
SOUTHERN CALIFORNIA OPINION
PERMANENTE MEDICAL (No change in the
GROUP, appellate judgment)
Defendant and
Respondent.
THE COURT:
It is ordered that the opinion filed herein on November 17,
2020 be modified as follows:
On page 1, delete counsel listing for Defendant and
Respondent and insert the following in its place:
Atkinson, Andelson, Loya, Ruud & Romo, Joseph E.
Pelochino, Jonathan D. Andrews; Andrews Lagasse Branch +
Bell, Jonathan D. Andrews, Joseph E. Pelochino and Ani
Mazmanyan for Defendant and Respondent.
There is no change in the appellate judgment.
____________________________________________________________
PERLUSS, P. J. FEUER, J. RICHARDSON, J.*
* Judge of the Los Angeles County Superior Court,
assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.
2
Filed 11/17/20 Razon v. Southern California Permanente etc. CA2/7 (unmodified
opinion)
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
REINIER RAZON, B294103
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC656671)
v.
SOUTHERN CALIFORNIA
PERMANENTE MEDICAL
GROUP,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Holly J. Fujie, Judge. Affirmed.
The Law Office of Caesar S. Natividad and Caesar S.
Natividad for Plaintiff and Appellant.
Andrews Lagasse Branch + Bell, Jonathan D. Andrews,
Joseph E. Pelochino and Ani Mazmanyan for Defendant and
Respondent.
________________
Reinier Razon sued his former employer Southern
California Permanente Medical Group (SCPMG) for disability
discrimination, failure to accommodate and failure to engage in
the interactive process in violation of the California Fair
Employment and Housing Act (FEHA) (Gov. Code,
§ 12900 et seq.). The trial court granted SCPMG’s motion for
summary judgment and entered judgment in favor of SCPMG,
ruling Razon’s lawsuit was barred by his written release of all
claims relating to his employment with SCPMG. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. Razon’s Employment and Partial Disability Leave
Razon began working for SCPMG at its Kaiser Sunset
location as a clinical laboratory scientist on a part-time basis in
January 2014. He was promoted to overnight manager in
January 2016, supervising a staff of clinical laboratory scientists
and phlebotomists. Part of Razon’s responsibilities included
interacting with union stewards representing the employees
Razon supervised.
On May 17, 2016 Razon was involved in a dispute with
Darren Wallace, the union steward assigned to the clinical
laboratory scientists under Razon’s supervision. According to
Razon, Wallace assaulted him. Razon was treated two days later
at the Kaiser emergency room for anxiety and diagnosed with
“emotional stress reaction,” which Razon believed was due to his
encounter with Wallace.1
1 Razon was diagnosed on May 30, 2016 as suffering from
“anxiety disorder, uncontrolled symptoms,” and on June 7, 2016
as suffering from “adjustment disorder with mixed anxiety and
depressed mood.”
2
On June 6, 2016 Razon was placed on a partial disability
leave of absence. The doctor’s note permitted Razon to return to
work but specifically advised he could not work at the Kaiser
Sunset main laboratory, which was where Wallace worked. No
other work restrictions were listed. Razon thereafter submitted a
series of doctor’s notes extending his partial disability leave
through August 2017. First, on August 9, 2016 the work
restriction was extended to the entire Kaiser Sunset facility, not
just the main laboratory, but otherwise authorized Razon’s
return to work. Next, on September 20, 2016 the doctor wrote,
“Patient is adamant that he will not return to work at Kaiser
Sunset due to safety concerns so anticipate this restriction may
become permanent.” Beginning with the doctor’s note of
November 17, 2016, the work restriction stated Razon could not
work at the same Kaiser facility as Wallace or be a supervisor.
That same restriction appeared in subsequent doctor’s notes
through August 2017.
Beginning in August 2016 Razon spoke repeatedly with
Leticia Cervantes, Kaiser’s transitional work coordinator, who
was responsible for evaluating Razon’s request to transfer from
the Kaiser Sunset facility where Wallace was assigned.
Cervantes explained to Razon that under Kaiser’s policies
temporary work restrictions are only accommodated within the
employee’s current medical center assignment. None of the
doctor’s notes submitted by Razon, however, ever indicated his
work restrictions had become permanent. Razon was advised to
apply directly for open positions at other facilities within the
Kaiser system.
3
2. Razon’s FEHA Lawsuit
On April 6, 2017 Razon sued SCPMG, alleging, as a result
of Wallace’s assault, he had developed a disability “consisting of
fear and inability to work at the Sunset Kaiser Permanent[e]
Hospital.” Razon further alleged he had requested that SCPMG
reassign him to another location in the Kaiser Permanente
system, but that request was denied. In addition, the complaint
continued, Razon’s several applications for employment as an
area laboratory manager or laboratory scientist at other Kaiser
Permanente locations were denied “because of his disability
and/or his worker’s compensation claim.” Razon asserted
three FEHA causes of action based on his “ongoing qualifying
disability of fear of working at the Kaiser Pemanent[e] Sunset
facility”: “discrimination based on disability”; “failure to provide a
reasonable accommodation”; and “failure to engage in an
interactive discussion to provide reasonable accommodations.”
SCPMG answered the complaint on May 26, 2017 with a
general denial and asserted 29 affirmative defenses.
3. Settlement of the Workers’ Compensation Claim and
Razon’s Voluntary Resignation from SCPMG
Razon filed a workers’ compensation claim in May 2016 for
injuries (stress and anxiety) arising from his encounter with
Wallace. That claim was pending when he filed his lawsuit
against SCPMG in April 2017.
In March 2018 Razon, acting through counsel, settled his
workers’ compensation claim for $45,000, as reflected in a
standard, preprinted compromise and release form signed by
Razon on March 14, 2018. As a condition of that settlement
Razon also signed on the same date a voluntary resignation form
4
letter provided to Razon’s attorney by the claims examiner acting
on behalf of SCPMG.
The voluntary resignation letter signed by Razon declares
his intention to voluntarily resign from SCPMG, to decline
modified or alternate employment with SCPMG or other Kaiser
entities and not to apply for reemployment at Kaiser. The
document also states it “releases Kaiser from any and all claims,
known or unknown, which may exist at the time of execution of
this Agreement, and waives any claim to monetary damages that
may arise from claims specifically to include, but not limited to,
all losses, liabilities, damages, and causes of action arising
directly or indirectly out of the employer-employee relationship.
This agreement specifically includes causes of action under
Title VII of the Civil Rights Act of 1964 (race, color, religion, sex
and national origin discrimination); the Americans with
Disabilities Act; 29 USC section 62 (age discrimination).
However, this list is expressly understood by the parities [sic] not
to be all-inclusive.”2
4. The Summary Judgment Motion and the Court’s Ruling
SCPMG moved on May 4, 2018 for summary judgment, or
in the alternative summary adjudication, arguing Razon did not
have a qualifying disability within the meaning of FEHA,
2 Immediately above the line for Razon’s signature the
document recited, “By signing this agreement I acknowledge that
I have read this agreement in its entirety, I understand it, I have
been given an opportunity to consult with or obtain
representation from an attorney in connection with this
Agreement, and consent to all of the agreement provisions are
given freely, voluntarily and with full knowledge and
understanding of the agreement’s contents.”
5
SCPMG had engaged in the interactive process with Razon and
provided him reasonable accommodations and the March 14,
2018 release signed by Razon barred all claims asserted in the
lawsuit.
With respect to the release contained in the voluntary
resignation letter, in his opposition papers Razon argued, in part,
SCPMG had forfeited the defense by failing to allege it as an
affirmative defense in its answer to the complaint. He also
asserted the release did not cover his FEHA claims, which were
known to SCPMG in March 2014 but not specifically identified in
the release, and the resignation letter and release were
unenforceable because they lacked independent consideration
and were, therefore, unconscionable.
After briefing and oral argument the court granted
SCPMG’s motion for summary judgment, ruling Razon’s action
was barred in its entirety by the release he had signed. In its
written order the court found the affirmative defense of waiver,
pleaded in SCPMG’s answer, was sufficient to permit SCPMG to
assert the release as a defense to the lawsuit. It also explained
the case law cited by Razon only requires a release executed as
part of a workers’ compensation settlement to make reference to
other civil claims generally; there is no requirement that claims
be specifically identified to be covered by the release. Finally, the
court found, by Razon’s own admission, his voluntary resignation
from SCPMG and the release of all employment-related claims
were components of the workers’ compensation settlement, thus
providing any necessary consideration.
Judgment in favor of SCPMG was entered October 2, 2018.
Razon filed a timely notice of appeal.
6
DISCUSSION
1. Standard of Review
A motion for summary judgment is properly granted only
when “all the papers submitted show that there is no triable
issue as to any material fact and that the moving party is entitled
to a judgment as a matter of law.” (Code Civ. Proc., § 437c,
subd. (c); see B.H. v. County of San Bernardino (2015)
62 Cal. 4th 168
, 178.) A defendant may move for summary judgment on the
ground there is an affirmative defense to the action. (Code Civ.
Proc., § 437c, subds. (o)(2), (p)(2); see Hampton v. County of
San Diego (2015)
62 Cal. 4th 340
, 343.) Once the defendant
establishes all elements of the affirmative defense, the burden
shifts to the plaintiff to show there is one or more triable issues of
material fact regarding the defense. (Shiver v. Laramee (2018)
24 Cal. App. 5th 395
, 400; Jessen v. Mentor Corp. (2008)
158 Cal. App. 4th 1480
, 1484-1485.)
We review a grant of summary judgment de novo (Samara
v. Matar (2018)
5 Cal. 5th 322
, 338) and, viewing the evidence in
the light most favorable to the nonmoving party (Regents of
University of California v. Superior Court (2018)
4 Cal. 5th 607
,
618), decide independently whether the facts not subject to
triable dispute warrant judgment for the moving party as a
matter of law. (Hampton v. County of San
Diego, supra
,
62 Cal.4th at p. 347; Schachter v. Citigroup, Inc. (2009)
47 Cal. 4th 610
, 618.)
2. The March 2018 Release Barred Razon’s FEHA Claims
Although abandoning his claim the affirmative defense of
release was not properly pleaded in SCPMG’s answer, Razon
repeats the other challenges to the enforceability of the release he
advanced in the trial court. None has merit.
7
a. Voluntary or a condition of the settlement
Initially, in an argument we have some difficulty
understanding, Razon contends there is a triable issue of fact
whether his resignation was voluntary or a condition of the
workers’ compensation settlement. Razon’s argument presents a
false dichotomy: While in the abstract he perhaps did not want
to end his employment with SCPMG or Kaiser, Razon admitted
in his declaration in opposition to summary judgment that he
agreed to, and signed, the March 14, 2018 voluntary resignation
letter, which was one of the settlement documents he had
received from the attorney representing him in the workers’
compensation proceeding.3 There is no disputed issue of fact:
The evidence unequivocally established the resignation and
release were made voluntarily and a condition of the settlement.
b. Consideration
Next, Razon contends there is a triable issue of fact
whether the release was supported by consideration. This
argument is doubly flawed. First, consideration is not necessary
for a written release to be enforceable. (Civ. Code, § 1541 [“[a]n
obligation is extinguished by a release therefrom given to the
debtor or the released party by the creditor or releasing party,
3 In his declaration Razon also insisted he did not intend by
signing the letter to release his FEHA claims. That undisclosed
intent, however, is irrelevant to our interpretation of the release.
(Otay Land Co., LLC v. U.E. Limited, L.P. (2017)
15 Cal. App. 5th 806
, 855 [“‘[a]lthough the intent of the parties determines the
meaning of the contract . . . , the relevant intent is “objective”—
that is, the objective intent as evidenced by the words of the
instrument, not a party’s subjective intent’”]; see Zissler v. Saville
(2018)
29 Cal. App. 5th 630
, 644; G & W Warren’s, Inc. v. Dabney
(2017)
11 Cal. App. 5th 565
, 575.)
8
upon a new consideration, or in writing, with or without new
consideration”].)4 Second, as discussed, Razon’s admission his
resignation from SCPMG and his release of employment-related
claims were a condition of the workers’ compensation settlement
establishes any necessary consideration. To be sure, as Razon
points out, the compromise and release form stated $45,000 was
being paid to settle Razon’s claims for the injuries at issue in the
workers’ compensation proceeding. Nonetheless, as Razon
acknowledged, the compromise and release of the workers’
compensation claims and the resignation and release of all other
employment-related claims were part of a single global
settlement package; and his execution of the voluntary letter of
resignation was a condition for resolution of the workers’
compensation claims. SCPMG, which self-insured for workers’
compensation claims, was not obligated to agree to pay Razon
$45,000 as provided in the form workers’ compensation
compromise and release. Its agreement to do so conferred a
benefit on Razon that Razon had no right to receive, one of the
statutory definitions of consideration. (See Civ. Code, § 1605
[“[a]ny benefit conferred, or agreed to be conferred, upon the
promisor, by any other person, to which the promisor is not
4 Razon asserts we should disregard this well-established
principle of law because SCPMG argued in the trial court the
release was supported by consideration without any reference to
Civil Code section 1541, and the order granting the motion was
based on a finding of consideration. However, we may affirm
summary judgment on a ground not relied upon by the trial court
(Code Civ. Proc., § 437c, subd. (m)(2)), and Razon fails to offer
any reason Civil Code section 1541 would not apply to the
March 14, 2018 release.
9
lawfully entitled, . . . as an inducement to the promisor, is a good
consideration for a promise”].)5
c. Mutual assent
Noting that SCPMG did not sign the voluntary resignation
letter, Razon contends there is a triable issue of fact whether
SCPMG consented to the resignation and release—that is,
whether there existed the mutual assent required for contract
formation.6 In determining the existence of mutual consent,
courts look to the objective, outward manifestations or
expressions of the parties, that is, “‘the reasonable meaning of
5 Although, as Razon notes, parol evidence is inadmissible to
vary or contradict the clear and unambiguous terms of a written,
integrated contract (Code Civ. Proc., § 1856, subd. (a); Wolf v.
Walt Disney Pictures & Television (2008)
162 Cal. App. 4th 1107
,
1126), the parol evidence rule does not exclude evidence of “the
circumstances under which the agreement was made or to which
it relates, as defined in Section 1860.” (Code Civ. Proc., § 1856,
subd. (g).) Code of Civil Procedure section 1860, in turn,
provides, “For the proper construction of an instrument, the
circumstances under which it was made, including the situation
of the subject of the instrument, and of the parties to it, may also
be shown, so that the Judge be placed in the position of those
whose language he is to interpret.”
6 While mutual assent is necessary for an enforceable
settlement agreement that includes a release (see, e.g., Timney v.
Lin (2003)
106 Cal. App. 4th 1121
, 1126; Weddington Productions,
Inc. v. Flick (1998)
60 Cal. App. 4th 793
, 811), it is by no means
clear that, to be effective, a written release, which, as discussed,
is enforceable without consideration, needs the consent of a
released party expressly identified in the document. (Cf. Rest.2d
Contracts, § 284, subd. (1) [“[a] release is a writing providing that
a duty owed to the maker of the release is discharged
immediately or on the occurrence of a condition”].)
10
their words and acts, and not their unexpressed intentions or
understandings.’” (Bustamante v. Intuit, Inc. (2006)
141 Cal. App. 4th 199
, 208.) Here, there is no question that Razon
gave his assent to the voluntary letter of resignation; he has
admitted he did. Nor is there any material issue of fact regarding
SCPMG’s consent. The evidence before the trial court on
summary judgment established the letter was provided by
SCPMG’s workers’ compensation claims representative to
Razon’s counsel during their negotiations of the workers’
compensation settlement. SCPMG’s representative required
Razon’s agreement to resign his employment and release his
employment-related claims as a condition of the settlement.
SCPMG and other Kaiser-related entities are expressly identified
as the beneficiaries of the resignation and release in the
document itself. The outward manifestation of SCPMG’s
approval of the resignation and release could not be any clearer.
d. Separate documents
Citing Jefferson v. Department of Youth Authority (2002)
28 Cal. 4th 299
(Jefferson) and Claxton v. Waters (2004)
34 Cal. 4th 367
(Claxton), Razon argues the release set forth in
his voluntary resignation letter is enforceable only if the letter
was attached to the preprinted compromise and release form
used to resolve Razon’s workers’ compensation claims. Neither
case establishes such a rule.
In Jefferson the Supreme Court held a compromise and
release executed on a preprinted form in a workers’ compensation
proceeding that expressly released “all claims and causes of
action” relating to an injury that also included an attachment
establishing the parties’ intent to include civil claims within the
scope of the release barred FEHA claims relating to the same
11
events that resulted in the injury.
(Jefferson, supra
, 28 Cal.4th
at p. 301.) The Court explained that at the time of the workers’
compensation settlement the plaintiff “had already filed a
complaint with the DFEH and therefore not only contemplated
the possibility of FEHA remedies but was also actively pursuing
those remedies. Therefore, when she released ‘all claims and
causes of action’ relating to the injury, she knew, or should have
known, that her FEHA claim would fall within the scope of that
broad language.” (Id. at p. 305.)
In Claxton the Supreme Court held an injured worker
executing the standard preprinted form used to settle workers’
compensation claims, without more, does not release causes of
action that are not exclusively subject to the workers’
compensation law or within the scope of that law.
(Claxton, supra
, 34 Cal.4th at p. 370.) The Court further held that
evidence extrinsic to the language of the preprinted workers’
compensation compromise and release form could not be used to
establish the parties intended the preprinted release to extend to
claims outside the workers’ compensation system. (Id. at p. 377.)
Emphasizing that those additional causes of action “may be
the subject of a separate settlement and release”
(Claxton, supra
,
34 Cal.4th at p. 370), the Claxton Court referred to the facts in
Jefferson to explain why this rule was not unfair to the parties:
“It would be a simple matter for parties who have agreed to settle
not only workers’ compensation claims but also claims outside the
workers’ compensation system to execute another document
expressing that agreement. Thus, execution of the mandatory
standard preprinted compromise and release form would only
establish settlement of the workers’ compensation claims; the
intended settlement of claims outside the workers’ compensation
12
system would have to be reflected in a separate document.
(See
Jefferson, supra
,
28 Cal. 4th 299
[attachment to workers’
compensation form documented release of claims outside of
workers’ compensation]; Delaney [v. Superior Fast Freight (1993)]
14 Cal.App.4th [590,] 600 [parties should augment workers’
compensation form to expressly refer to release of claims outside
of workers’ compensation]”.) (Claxton, at p. 378.)
In an effort to fashion a rule that any intended release of
claims outside the workers’ compensation system must be
attached to the preprinted workers’ compensation form, not set
forth in a separate document, Razon emphasizes that in both
Jefferson and Claxton the general release language was, in fact,
included in such an attachment. While true, neither case—nor
any other authority cited by Razon—established attachment as a
requirement. To the contrary, the Claxton Court expressly
recognized release of the non-workers’ compensation claims could
be effected through a separate document, independent of the
workers’ compensation preprinted form.
(Claxton, supra
,
34 Cal.4th at pp. 370, 378.) That is exactly what occurred here.
e. Express reference to the FEHA claims
Finally, Razon argues the absence of any express reference
to his FEHA claims in the release creates a triable issue of fact
whether the lawsuit, pending at the time the release was
executed, was included within its scope. The Supreme Court in
Claxton expressly rejected the need for the specificity that Razon
suggests: “As is true with settlements in civil actions generally,
the separate document need not identify precise claims; it would
be sufficient to refer generally to causes of action outside the
13
workers’ compensation law ‘in clear and non-technical language.’”
(Claxon, supra
, 34 Cal.4th at p. 378.)7
The release language in Razon’s voluntary resignation
letter clearly encompasses causes of action outside the workers’
compensation law and, even more specifically, all claims arising
directly or indirectly from his employment at SCPMG including
those involving disability discrimination. Absent any admissible
extrinsic evidence that Razon intended to exclude his FEHA
claims from this broad, all-inclusive language, interpretation of
the release remained a question of law. (See City of Hope
National Medical Center v. Genentech, Inc. (2008)
43 Cal. 4th 375
,
395; Garcia v. Truck Ins. Exchange (1984)
36 Cal. 3d 426
, 439
[“[i]t is solely a judicial function to interpret a written contract
unless the interpretation turns upon the credibility of extrinsic
evidence, even when conflicting inferences may be drawn from
uncontroverted evidence”]; Hanna v. Mercedes-Benz USA, LLC
(2019)
36 Cal. App. 5th 493
, 507 [“in the absence of any conflict in
extrinsic evidence presented to clarify an ambiguity,” written
agreements are interpreted de novo].) The trial court properly
interpreted that language to bar Razon’s FEHA lawsuit.
7 Razon mistakenly quotes language from Lopez v. Sikkema
(1991)
229 Cal. App. 3d 31
and Delaney v. Superior Fast
Freight, supra
,
14 Cal. App. 4th 590
to argue specific reference to his
pending FEHA case was required for the release to be effective.
Both of those cases were analyzing the sufficiency of extrinsic
evidence to establish the preprinted workers’ compensation form
release encompassed the plaintiff’s pending civil case. Both were
expressly disapproved on that point in
Claxton, supra
, 34 Cal.4th
at page 379, footnote 2.
14
DISPOSITION
The judgment is affirmed. SCPMG is to recover its costs on
appeal.
PERLUSS, P. J.
We concur:
FEUER, J.
RICHARDSON, J.*
* Judge of the Los Angeles County Superior Court, assigned
by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
15 |
4,639,310 | 2020-12-03 20:02:28.159811+00 | null | https://www.courts.ca.gov/opinions/nonpub/B306082.PDF | Filed 12/3/20 P. v. Villescas CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B306082
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. A892288)
v.
ALBERTO VILLESCAS,
Defendant and Appellant.
THE COURT:
In October 1998, a jury convicted Alberto Villescas
(defendant) of two counts of possession of a firearm by a felon
(former Penal Code section 12021, subd. (a)).1 The trial court
2
sentenced defendant to prison for 26 years to life. This was a
1 All further statutory references are to the Penal Code
unless otherwise indicated.
2 The sentence included one year for a prison prior (§ 667.5,
subd. (b)).
“third strike” sentence under our state’s Three Strikes Law
(§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(j)). Defendant’s two
prior “strike” convictions were based on his guilty plea in a single
proceeding in July 1989 to committing violations of attempted
murder (§§ 664, 187) and robbery (§ 211), for which he received a
combined sentence of nine years in state prison.
On appeal, a prior panel of this division of the Court of
Appeal affirmed the judgment. (People v. Villescas (May 2, 2000,
B129758) [nonpub. opn.].) Defendant’s conviction became final in
August 2000.
In February 2020, defendant petitioned the trial court (1) to
declare his 1989 pleas as “void” under newly enacted section
1016.8, and (2) because this declaration would eliminate both of
his prior “strikes,” to vacate the third strike sentence imposed in
this case. The trial court summarily denied the motion on the
grounds that section 1016.8 “does not apply” to defendant’s case.
Defendant filed a timely notice of appeal. We appointed
appellate counsel for defendant. Citing People v. Serrano (2012)
211 Cal. App. 4th 496
, counsel filed an opening brief setting out
the procedural history of this case, and a declaration indicating
that counsel had “reviewed the entire record,” had found no
“arguable issues to raise on appeal” and had informed defendant
“of his right to file a supplemental brief.”
We sent a letter to defendant advising him that he had 30
days to file a supplemental brief. On October 27, 2020, defendant
filed a supplemental brief in which he reiterates the argument he
made in his petition to the superior court.
Pursuant to People v. Cole (2020)
52 Cal. App. 5th 1023
,
review granted Oct. 14, 2020, S264278, our obligation in
reviewing this appeal of an order denying post-conviction relief is
2
to “evaluate [the] arguments presented” in the defendant’s
supplemental brief. (Id. at p. 1040.)
At bottom, defendant in his supplemental brief argues that
his constitutional right to equal protection of the law was violated
because “retroactive application of Penal Code [section] 1016.8 is
proper and just.” Although section 1016.8 applies retroactively to
cases not yet final on appeal (People v. Barton (2020)
52 Cal. App. 5th 1145
, 1153), defendant’s judgment has been final
since 2000. Nothing in section 1016.8 authorizes a collateral
attack on a final judgment. By its terms, section 1016.8 prohibits
the state from requiring a defendant, as a condition of a plea
bargain, to “waive future benefits of legislative enactments,
initiatives, appellate decisions, or other changes in the law that
may retroactively apply after the date of the plea . . . .” (§ 1016.8,
subd. (b).) But the trial court imposing sentence in 1998 did not
transgress this requirement because the Three Strikes Law is not
a “future benefit” to defendants, and because the trial court’s act
of sentencing defendant under the Three Strikes Law in 1998
applied the law in effect at that time and thus did not
retroactively apply any law (People v. Sipe (1995)
36 Cal. App. 4th 468
, 478-479).
The trial court’s order is accordingly affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
——————————————————————————————
ASHMANN-GERST, Acting P. J., CHAVEZ, J., HOFFSTADT, J.
3 |
4,639,311 | 2020-12-03 20:02:28.607113+00 | null | https://www.courts.ca.gov/opinions/nonpub/F079126.PDF | Filed 12/3/20 P. v. McDonald CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F079126
Plaintiff and Respondent,
(Super. Ct. No. BF143850C)
v.
MAXAMILLON LEE MCDONALD, OPINION
Defendant and Appellant.
THE COURT*
APPEAL from a judgment of the Superior Court of Kern County. Thomas S.
Clark, Judge.
Scott Concklin, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez, Jeffrey D.
Firestone and Jamie A. Scheidegger, Deputy Attorneys General, for Plaintiff and
Respondent.
-ooOoo-
* Before Poochigian, Acting P.J., Smith, J. and Meehan, J.
Defendant Maxamillon Lee McDonald stands convicted of two counts of robbery
and active participation in a street gang. On appeal, he contends (1) the trial court
erroneously imposed one $10 crime prevention program fine for each theft offense rather
than one such fine for the case, and (2) the abstract of judgment erroneously fails to
reflect his stayed sentence on count 3. The People concede both points. We ordered the
parties to file supplemental briefing regarding whether defendant’s prior prison term
enhancements should be stricken pursuant to Penal Code section 667.5, subdivision (b),1
as amended by Senate Bill No. 136 (2019–2020 Reg. Sess.) (Senate Bill 136). The
parties agree that defendant’s prior prison term enhancements should be stricken. We
strike one of the two crime prevention fines, strike defendant’s two prior prison term
enhancements, direct the trial court to prepare an amended abstract of judgment reflecting
the modifications and correcting the error, and affirm in all other respects.
PROCEDURAL SUMMARY
On December 28, 2012,2 the Kern County District Attorney charged defendant
with first degree murder during the commission of a robbery on a felony murder theory
(§§ 187, subd. (a), 189, & 190.2, subd. (a)(17); count 1), robbery (§ 212.5, subd. (c);
counts 2 & 4), and active participation in a criminal street gang (§ 186.22, subd. (a);
count 3). As to count 4, the information alleged that defendant inflicted great bodily
injury (§ 12022.7). As to all counts, the information alleged defendant had suffered a
prior felony “strike” conviction within the meaning of the “Three Strikes” law (§§ 667,
subds. (b)–(i), 1170.12, subds. (a)–(d)), had suffered a prior serious felony conviction
(§ 667, subd. (a)), and had served two prior prison terms (§ 667.5, subd. (b)). As to
1 All further statutory references are to the Penal Code unless otherwise stated.
2 All further dates refer to the year 2012 unless otherwise stated.
2.
counts 1, 2, and 4, the information alleged defendant committed the offense for the
benefit of a criminal street gang (§ 186.22, subd. (b)(1)).3
The jury found defendant guilty on all counts and found true all the gang
allegations. In a bifurcated proceeding, the trial court found true all the prior conviction
and prior prison term allegations. Defendant’s prior prison terms were served for a 2003
conviction of assault with a deadly weapon (§ 245, subd. (a)(1)) and a 2005 conviction
for evading a peace officer (§ 2800.2).
On September 17, the trial court sentenced defendant to life in prison without the
possibility of parole plus 12 years. The court also ordered defendant to pay restitution
and various fines, fees, and assessments.
On June 25, 2015, this court vacated the special circumstance finding and reversed
the conviction on count 1, but in all other respects affirmed. The matter was remanded
for further proceedings. (People v. McDonald (2015)
238 Cal. App. 4th 16
.)
On April 5, 2019, the prosecutor moved to dismiss count 1 because of a change in
the law.4 On the same date, the trial court dismissed count 1 and resentenced defendant
on counts 2 through 4. The court sentenced defendant to 24 years in prison as follows:
on count 2, 10 years (five years doubled to 10 years based on the prior strike conviction),
plus a 10-year gang enhancement, plus two one-year prior prison term enhancements; on
count 3, six years (three years doubled to 6 years based on the prior strike conviction),
stayed pursuant to section 654; and on count 4, two years, to be served consecutively to
3 The gang enhancement and enhancement for personal infliction of great bodily
injury were set aside prior to trial (§ 995).
4 Effective January 1, 2019, Senate Bill No. 1437 limited accomplice liability under
the felony-murder rule and the natural and probable consequences doctrine. (§§ 188,
189, as amended by Stats. 2018, ch. 1015, §§ 2–3; People v. Cruz (2020)
46 Cal. App. 5th 740
, 755.)
3.
the sentence on count 2.5 The court also ordered defendant to pay restitution, fines, and
fees, including $10 fees pursuant to section 1202.5 as to counts 2 and 4.
On the same date, defendant filed a notice of appeal.
FACTUAL SUMMARY
Defendant was an East Side Crips gang member.
On August 18, 2012, Patrice Oliver went to the grocery store. When she left the
store, defendant made eye contact and walked past her. Defendant then turned, grabbed
the back of Oliver’s neck and pulled the chains around her neck. Oliver fell to the
pavement and defendant dragged her about five feet while trying to pull several chains
off her neck. One chain broke and defendant was able to take another off Oliver. He
then ran.
On August 19, 2012, at about 5:30 p.m., 71-year-old Guadalupe Ramos began
shopping at a grocery store with her daughter and granddaughter. Ramos wore a thick
gold-linked chain with a gold cross. On the same day, approximately an hour later,
defendant and two other East Side Crips gang members entered the same store. When
Ramos, her daughter, and her granddaughter left the store, one of the East Side Crips
approached Ramos from behind, grabbed her by the neck and necklace, pulled the
necklace until it broke, and then took the necklace and ran. Ramos fell and hit her head
and back.
Defendant, parked several spaces away from where Ramos was robbed, pulled out
of the parking space and picked up the East Side Crip who robbed Ramos about two
blocks away from the robbery. Defendant and the two other East Side Crips then drove
to a business that purchased gold to sell the stolen necklace.
Meanwhile, Ramos developed an irregular heartbeat and died approximately an
hour after the robbery.
5 The amended abstract of judgment does not reflect the sentence on count 3.
4.
DISCUSSION
First, the parties agree, as do we, that the trial court erred in imposing two crime
prevention program fees for theft offenses pursuant to section 1202.5.
Section 1202.5, subdivision (a) requires a trial court to impose a $10 fee “[i]n any
case in which defendant is convicted of” a listed theft offense, including robbery. The
fine can therefore only be imposed once in any case. (People v. Crittle (2007)
154 Cal. App. 4th 368
, 371; see § 1202.5, subd. (a); see also People v. Knightbent (2010)
186 Cal. App. 4th 1105
, 1109 [section 1202.5 fines are “subject to the … additional
assessments, surcharge[s], and penalties, which the Legislature has expressly provided
must be added to any criminal fine”].) That must be imposed once per case, not once per
offense.
Although defendant was convicted of two counts of robbery (counts 2 and 4), only
one $10 fee was authorized pursuant to section 1202.5. Accordingly, we strike the
second $10 fee as unauthorized.
Second, defendant was sentenced to six years in prison, stayed, on count 3. The
abstract of judgment fails to reflect the sentence on count 3. An abstract of judgment
must include all felony counts of conviction, including stayed counts. (People v. Watts
(2009)
173 Cal. App. 4th 621
, 623, fn. 2.) Therefore, as the parties agree, the abstract of
judgment must be amended to reflect the stayed sentence on count 3.
Third, defendant argues his two prior prison term enhancements must be stricken
based on the retroactive application of Senate Bill 136. The People agree, as do we.
Effective January 1, 2020, Senate Bill 136 amended section 667.5, subdivision (b)
to limit application of prior prison term enhancements to only prior prison terms that
were served for sexually violent offenses as defined by Welfare and Institutions Code
section 6600, subdivision (b). (§ 667.5, subd. (b).) (Stats. 2019, ch. 590, § 1.) That
amendment applies retroactively to all cases not yet final on Senate Bill 136’s effective
5.
date. (People v. Lopez (2019)
42 Cal. App. 5th 337
, 341–342, citing In re Estrada (1965)
63 Cal. 2d 740
, 742.)
Here, the trial court imposed two one-year section 667.5, subdivision (b) prior
prison term enhancements for terms served for convictions of assault with a deadly
weapon and evading a peace officer, neither of which is a sexually violent offense as
defined in Welfare and Institutions Code section 6600, subdivision (b). On January 1,
2020, defendant’s case was not yet final. Therefore, as the parties agree, defendant is
entitled to the ameliorative benefit of Senate Bill 136’s amendment to section 667.5,
subdivision (b). We therefore strike defendant’s prior prison term enhancements.
Where an appellate court strikes a portion of a sentence, remand for “ ‘a full
resentencing as to all counts is [generally] appropriate, so the trial court can exercise its
sentencing discretion in light of the changed circumstances.’ ” (People v. Buycks (2018)
5 Cal. 5th 857
, 893.) However, where a trial court imposed the maximum possible
sentence, remand for the court to consider alternative sentencing options is unnecessary.
(People v.
Lopez, supra
, 42 Cal.App.5th at p. 342.)
Here, the trial court imposed the maximum possible sentence6 and therefore
remand is unnecessary. Accordingly, we strike the five prior prison term enhancements
and direct the trial court to prepare an amended abstract of judgment.
DISPOSITION
The second $10 fee imposed pursuant to section 1202.5 is stricken. Defendant’s
two prison term enhancements (§ 667.5, subd. (b)) are stricken. The trial court is directed
to prepare an amended abstract of judgment, reflecting those modifications and the stayed
six-year term on count 3. The court shall forward a copy of the amended abstract of
judgment to the appropriate entities. As so modified, the judgment is affirmed.
6 The trial court’s imposition of one-third of the midterm sentence on count 4 was
the maximum sentence permitted. (§ 1170.1, subd. (a).)
6. |
4,639,312 | 2020-12-03 20:02:29.608807+00 | null | https://www.courts.ca.gov/opinions/nonpub/B301847.PDF | Filed 12/3/20 P. v. Garcia CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B301847
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA477275)
v.
RICHARD A. GARCIA,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Drew E. Edwards and David V. Herriford,
Judges. Affirmed.
Greg Wolff, under appointment by the Court of Appeal, for
Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Paul M. Roadarmel, Jr. and Michael Katz,
Deputy Attorneys General, for Plaintiff and Respondent.
******
Richard A. Garcia (defendant) was convicted of beating up
his on-again, off-again girlfriend, and sentenced to six years in
state prison. He argues that his conviction is barred by double
jeopardy and is infected with evidentiary error. We conclude
none of his claims entitle him to relief, and affirm.
FACTS AND PROCEDURAL BACKGROUND
I. Facts
Defendant and Sandra S. (Sandra) met in 2012, and began
an on-again, off-again dating relationship that lasted until July
2019.
In the early morning hours of February 4, 2019, defendant
and Sandra got into an argument in an exchange of text
messages. Because Sandra wanted defendant to drive her to a
court hearing, she went to his house around 8:00 a.m. or 8:30
a.m. that morning. When defendant answered the front door, he
started yelling at Sandra and, without provocation, punched her
four times in the head and face with his closed fist. He then
dragged her by the hair into the house, through the living room,
and into the bathroom. Once there, he punched her three more
times with his closed fist. The blows knocked her to the floor,
and defendant held her to the floor. Defendant then walked out
of the room.
Bloodied and stunned, Sandra wiped some of the blood from
the injuries to her head and face with the sweater she was
wearing before deciding to get into the shower to clean herself up
a little. When she finished, she was unable to call 911 because
defendant had taken her purse that contained her cell phone, and
she was afraid to leave his house because defendant had
previously threatened her it “would be . . . worse for [her]” “if
2
[she] left.” Exhausted from the beating, she laid down on the bed
in the house. It is unclear whether she passed out or fell asleep.
Sandra awoke six hours later (a little before 3:00 p.m.),
startled. She ran into the front of the house, and saw defendant
out in the front yard. When he left a few minutes later, Sandra
ran out of the house, flagged down a passing car, and asked for a
ride to her brother’s nearby house. Once there, she called 911 to
report the beating and, a few minutes later, spoke with a
responding police officer who was wearing a body camera.
The beating busted Sandra’s lip, bruised her right shoulder
and ear, and split her scalp in a way that necessitated two or
three stitches.
In a March 2019 back-and-forth exchange on an instant
messaging app associated with YouTube, defendant called
Sandra a “bitch,” a “snitch” and a “fuckn rat,” accused her of
being “the starter of all fighting,” explained that “this is why
[she] get fucked up for starting shit,” further suggested that the
February 2019 beating was Sandra’s fault because “If a sign says
beware of dog and u still stepp [sic] into the yard . . . then cry n
[sic] act like you didn’t know youd [sic] get bit,” and repeatedly
threatened her that he would “beat [her] ass” and “fuck [her] up”
when he “get[s] out” of prison.
II. Procedural Background
The People charged defendant with (1) injuring a spouse,
cohabitant or girlfriend (Pen. Code, § 273.5, subd. (a)), and (2)
battery causing serious bodily injury (id., § 243, subd. (d)). As to
the injuring a spouse count, the People also alleged that
defendant personally inflicted great bodily injury (id., § 12022.7,
subd. (e)).
3
The matter proceeded to trial in July 2019. The trial court
eventually declared a mistrial.
The matter proceeded to a second trial in September 2019.
The second jury convicted defendant of all counts and found true
the great bodily injury allegation.
The trial court sentenced defendant to six years in state
prison. The court imposed a six-year sentence on the injuring a
spouse, cohabitant or girlfriend count, comprised of a three-year
base term plus three years for the great bodily injury
enhancement. The court then imposed a three-year sentence on
the battery count, but stayed the sentence pursuant to Penal
Code section 654.
Defendant filed this timely appeal.
DISCUSSION
Defendant argues that his conviction must be overturned
because the trial court erred (1) in declaring a mistrial after the
first trial, such that the retrial violated double jeopardy, (2) in
not honoring the first jury’s request for readback of testimony, (3)
in admitting Sandra’s statements on the 911 call and to the police
who responded to that call, (4) in admitting Sandra’s statements
from the March 2019 exchange of instant messages, and (5) in
admitting evidence that defendant possessed methamphetamine
when he was arrested in April 2019.
I. Issues Relating to First Trial
A. Pertinent facts
On the first day of jury deliberations after defendant’s first
trial concluded, the jury asked for a readback of the entirety of
Sandra’s testimony. Because the request came late in the
afternoon, the court told the jury it would do the readback the
next morning.
4
On the second day of deliberations, one of the jurors was
too ill to come to court and the parties stipulated to replace her
with an alternate juror. The court then instructed the newly
constituted jury that it must “begin [its] deliberations again from
the beginning,” and “must disregard the earlier deliberations and
decide this case as if [the] earlier deliberations have not taken
place.”
After less than two hours of deliberation, the jury sent a
note. The note read:
“We are unable to come to a unanimous decision
because we feel that there is insufficient evidence
from both the defense and the People. Even with a
review of all current exhibits, we all feel strongly
about our individual opinions, and they will not
change.”
In response to the note, the court called the jury to the
courtroom and asked how many votes the jury had taken. The
foreperson responded, “maybe four.” The court explained that
because the newly constituted jury had been deliberating for
“between an hour and a half, [or an hour and] 45 minutes,” it was
“going to ask [the jury] to go back and talk some more.” The
court reminded the jury that it could send a note if the jurors
wanted readback.
After less than 90 minutes of further deliberation, the jury
sent a second note. The note read:
“We created a timeline and carefully reviewed each
piece of evidence again. We cannot agree on a
unanimous verdict. We feel that we will be unable to
reach a verdict with more time as well. We all feel
strongly that there is not enough evidence.”
5
In response to this note, the court again called the jury to
the courtroom. The court again asked how many votes the jury
had taken. The foreperson responded, “Like nine,” and added
that the jury’s split had “[s]tayed the same” in all nine votes. The
court asked, “Without telling me how many people voted guilty
and how many voted not guilty, what is the actual split?” The
foreperson responded, “Six to six.” The court then asked whether
“there is anything else the court can do to assist [the jury] in
reaching a verdict, [such as] additional readback of testimony[ or]
any further instructions.” The foreperson responded, “We don’t
see anything.” The court polled each of the jurors as to whether
they believed each “cannot reach a verdict”; all 12 responded they
could not.
The court then declared a mistrial and dismissed the jury.
Defendant moved for dismissal of the charges on the
ground that “it was an even split as well as the jurors saying
there was insufficient evidence.” The trial court denied the
motion, explaining that “[h]alf the jurors indicated . . . their belief
[defendant] was guilty of the charge” and that it was “well within
the People’s province to retry this case.”
B. Analysis
1. Double jeopardy
The federal and California constitutional guarantees of
double jeopardy prevent the People from subjecting a person to a
second trial for the same offense(s) unless, as is pertinent here,
the first trial was terminated by “legal” or “manifest” “necessity.”
(People v. Anderson (2009)
47 Cal. 4th 92
, 104 (Anderson); People
v. Halvorsen (2007)
42 Cal. 4th 379
, 425; Curry v. Superior Court
of San Francisco (1970)
2 Cal. 3d 707
, 712; U.S. Const., 5th
Amend.; Cal. Const., art. I, § 15.) There is a legal or manifest
6
necessity for retrial when the jury in the first case is genuinely
unable to reach a verdict. (Anderson, at p. 104.) A jury is
genuinely deadlocked only if “it satisfactorily appears that there
is no reasonable probability that the jury can agree” on a verdict.
(Pen. Code, § 1140; People v. Bryant, Smith and Wheeler (2014)
60 Cal. 4th 335
, 462.) “The determination whether there is a
reasonable probability of agreement rests in the discretion of the
trial court.” (People v. Breaux (1991)
1 Cal. 4th 281
, 319.)
The trial court did not abuse its discretion in concluding
that there was a reasonable probability that the jury in the first
trial could not agree on a verdict (and hence, in concluding that
there was no violation of double jeopardy). When the jury first
indicated it was deadlocked, the court noted the relatively brief
time spent deliberating, ordered the jury to continue discussing
the case, and offered to provide any assistance the jury wanted.
When the jury later reaffirmed its continued deadlock, the court
confirmed that the 6-6 split had not changed after nine votes, and
polled each individual juror to confirm that each felt they could
not reach agreement. On these facts, the court acted well within
its discretion in concluding that there was no reasonable
probability the first jury could agree on a verdict.
Citing the language used in the jury’s two notes stating
that the jury felt there is “insufficient” or “not enough” evidence,
defendant argues that what the jury really meant was that all 12
jurors felt that there was “not enough evidence” to convict him,
or, at a minimum, that the jury was confused about the beyond a
reasonable doubt standard. We reject this argument as an
unreasonable and implausible reading of the jury’s notes. In both
notes, the jurors had also expressly indicated that they were
“unable to come to a unanimous verdict.” What is more, the
7
foreperson went on to report that “six” jurors had voted “guilty”
and “six” had voted “not guilty.” Read as a whole, the only
plausible interpretation of the jury’s representation that there
was “not enough evidence” is as an inartful statement that “there
is not enough evidence for all 12 of us to agree on defendant’s
guilt” rather than a nonsensical statement that “all 12 of us think
there is not enough evidence, including the six of us who still
voted guilty.” (See Shoemaker v. Myers (1992)
2 Cal. App. 4th 1407
, 1424 [“‘Where a statute is susceptible of two constructions,
one leading to mischief or absurdity, and the other consistent
with justice and common sense, the latter must be adopted’”].)
This is particularly so when we consider that the note was
written by a juror, and we do not expect jurors to be precise in
their use of legal terminology. (Accord, People v. Riggs (2008)
44 Cal. 4th 248
, 287.) The implausibility of defendant’s reading of
the jury notes also obviated any need for the court to inquire
further or to instruct further regarding the burden of proof.
Defendant resists this conclusion, citing People v. Medina (1980)
107 Cal. App. 3d 364
for the proposition that the court should have
inquired further, but Medina is inapt: There, the trial court was
too quick to dismiss a jury that had expressly told the judge it
“[n]eed[ed] further instructions.” (Id. at pp. 368-370.) Here, the
jury had repeatedly told the court that it was deadlocked.
2. Failure to honor request for readback
When a jury requests the readback of testimony, the court’s
failure to honor that request can invalidate the verdict. (Pen.
Code, § 1138; People v. Frye (1998)
18 Cal. 4th 894
, 1007,
overruled in part on other grounds as stated in People v. Doolin
(2009)
45 Cal. 4th 390
, 421.) While the trial court did not honor
the jury’s initial request for readback of Sandra’s testimony at
8
the first trial, this was not error.1 That is because, on the very
next morning before the readback could occur, a new juror was
seated. When this happens, the trial court is required to
“instruct the jury to set aside and disregard all past deliberations
and begin deliberating anew.” (People v. Collins (1976)
17 Cal. 3d 687
, 694, overruled on other grounds as stated in People v.
Boyette (2002)
29 Cal. 4th 381
, 462, fn. 19; accord, CALCRIM No.
3575 [so instructing].) The trial court here did just that. Thus,
the trial court was not required to honor the previous jury’s
request for readback. Indeed, it would have been error if the trial
court had gone ahead with the readback because doing so would
have suggested that the prior jury’s deliberations—including its
requests for readback—still mattered. (See People v. Guillen
(2014)
227 Cal. App. 4th 934
, 1030-1031 [finding error in this
context].) What is more, the trial court told the newly constituted
jury that it was free to request any readback, and it decided not
to do so.
II. Evidentiary Issues
We review a trial court’s evidentiary rulings for an abuse of
discretion. (People v. Jablonski (2006)
37 Cal. 4th 774
, 805.)
1 It is not clear whether this issue is even properly before us
given that it deals with the first jury’s deliberations (which ended
with what we have determined to be a proper declaration of a
mistrial) and given that what is before us now are the convictions
arising out of the second jury’s deliberations.
9
A. Sandra’s statements on the 911 call and to the
responding officers2
Sandra’s out-of-court statements on the 911 call and to the
responding officers regarding what happened when defendant
beat her were admitted for their truth, and are accordingly
hearsay. (Evid. Code, § 1200, subd. (a).)
The trial court nevertheless did not abuse its discretion in
admitting Sandra’s statements because they qualify as excited
utterances. Because these statements were made after a
startling occurrence (namely, defendant’s attack) and pertain to
that occurrence, the sole issue is whether Sandra’s statements
were the product of “‘the nervous excitement’” caused by the
beating and made “‘before there [was] time to contrive and
misrepresent . . . .’” (People v. Poggi (1988)
45 Cal. 3d 306
, 318;
Evid. Code, § 1240.) Factors relevant to this issue include “‘[(1)]
the passage of time between the startling event and the
statement[(s)], [(2)] whether the declarant blurted out the
statement or made it in response to questioning, [(3)], the
declarant’s emotional state and physical condition at the time of
making the statement, and [(4)] whether the content of the
statement suggested an opportunity for reflection and
fabrication.’ [Citations.]” (People v. Sanchez (2019)
7 Cal. 5th 14
,
40.) “‘[N]o one factor or combination of factors is dispositive.’”
(Ibid.) Although approximately six hours passed between the
beating and Sandra’s statements on the 911 call and to the
responding officers, and although some were in response to
2 To the extent defendant challenges the admission of the
bodycam footage worn by officers who arrested defendant in April
2019, he does not provide any reasoned argument to support
those challenges and they are accordingly waived. (E.g., In re
S.C. (2006)
138 Cal. App. 4th 396
, 408.)
10
questions posed by the 911 operator and the officer, she spent
nearly all of that time unconscious. More to the point, we have
reviewed the 911 tape and the bodycam video worn by the
responding officer, and they reflect that Sandra was still under
the “excitement” of the beating at the time she made her
statements: She was sobbing on the 911 tape, and the bodycam
video shows a battered and bleeding Sandra looking dazed and
speaking only haltingly. (Accord, People v. Liggins (2020)
53 Cal. App. 5th 55
, 61-64 [proper to admit, as an excited utterance,
statement recorded by bodycam where video showed declarant
was still under stress of event].)
Defendant further argues that we cannot rely upon the
excited utterance exception because the trial court never did,
leaving us no exercise of discretion to review. This argument
ignores the longstanding rule that “‘“we review the [trial court’s]
ruling, not the court’s reasoning and, if the ruling was correct on
any ground, we [may] affirm.”’” (People v. Brooks (2017)
3 Cal. 5th 1
, 39.)
B. Sandra’s statements in the March 2019
exchange of instant messages
The People introduced a hardcopy of the March 2019
exchange of instant messages between defendant and Sandra,3 so
defendant’s statements during that exchange are hearsay but
admissible as the statements of an adverse party. (Evid. Code,
§ 1220.) Sandra’s statements during the exchange are admissible
to “‘provid[e] context’ [citation]” for defendant’s statements, but
3 Although defendant repeatedly notes that it was “40 pages”
of text messages, it is in actuality 40 pages of blown-up screen
shots of text messages, which appear in what must be 22- to 60-
point typeface in alternating bubbles occupying only half the
page.
11
in that respect, are not admissible for their truth. (People v.
Fayed (2020)
9 Cal. 5th 147
, 169.) However, the prosecutor asked
Sandra about many of her own statements during her testimony
and, in closing argument, referred to those statements as if they
had been admitted for their truth. Defendant forfeited his right
to complain of this error, however, because he did not request an
instruction limiting this evidence to its nonhearsay uses (Evid.
Code, § 355), and did not object to the prosecutor’s closing
argument (People v. Crew (2003)
31 Cal. 4th 822
, 839).
To forestall any claim that defense counsel was
constitutionally ineffective for not requesting a limiting
instruction and not objecting, we address that claim. Even if we
assume for the sake of argument that defense counsel’s decision
not to object was deficient performance rather than a product of
trial tactics, defendant has still not established that there is a
“reasonable probability” that, but for that deficient performance,
“the result of the proceeding would have been different.”
(Strickland v. Washington (1984)
466 U.S. 668
, 687, 694.) That is
because the evidence of defendant’s guilt was overwhelming and
his trial testimony implausible. The evidence that defendant
beat Sandra was overwhelming: Sandra testified to the beating;
her trial testimony was corroborated by her near-
contemporaneous statements on the 911 call and to the
responding officers; her injuries from the beating were
photographed and visible in the bodycam video recorded hours
after the beating; and defendant effectively admitted to beating
her in the instant message exchange and went so far as to
threaten to do it again. Defendant testified, and his defense was
not only that he did not do the beating, but that he saw Sandra
around 8:00 p.m. the same day and that she had no visible
12
injuries. Thus, the defense was that Sandra beat herself up
enough to look battered and bruised on the bodycam video at 3:00
p.m., and then used what we must assume to be super-human
healing power to appear wholly uninjured five hours later. Given
the totality of this evidence, Sandra’s statements during the
instant message exchange—which at most added a fourth layer of
corroboration to her account of defendant’s attack—had no
discernable effect on the outcome of this trial. Defendant
suggests that the fact that the first jury deadlocked and the
second jury convicted him means that the instant messages
(which were not admitted at the first trial) were necessarily
prejudicial. We reject this suggestion, as the admission of those
messages were not the only difference between the two trials.
(Cf. People v. Ross (2007)
155 Cal. App. 4th 1033
, 1055 [noting that
prior jury’s deadlock is merely one “fact” to consider in assessing
prejudice].)
C. Defendant’s possession of a substance that
appeared to be methamphetamine in April 2019
1. Pertinent facts
The People sought to introduce evidence that, when
defendant was arrested for the charged crimes in April 2019, he
left a baggie filled with a crystal-like powder in the back of the
police vehicle used to transport him. The trial court excluded this
evidence in the People’s case-in-chief, but noted it might “revisit”
the ruling “depending” on what defendant might say during his
testimony. Defendant testified. During cross-examination, the
prosecutor asked when the defendant last used
methamphetamine. Defendant responded that he had not used
methamphetamine at all in 2019 or, for that matter, since 2006
or 2007. The trial court then allowed the prosecutor to call the
officer who transported defendant in April 2019, and that officer
13
testified that defendant had left a clear plastic baggy with a
crystal-like substance in the back seat of the police vehicle, and
that the substance appeared to be methamphetamine.
2. Analysis
The trial court did not abuse its discretion in admitting this
evidence. To be sure, whether defendant possessed
methamphetamine in April 2019 is collateral to whether he beat
Sandra in February 2019. But “[a] matter collateral to an issue
in the action may nevertheless be relevant to the credibility of a
witness who presents evidence on an issue.” (People v. Rodriguez
(1999)
20 Cal. 4th 1
, 9 (Rodriguez).) Here, defendant denied using
methamphetamine in 2019 while testifying. Evidence that
defendant possibly possessed some methamphetamine in 2019
constitutes evidence regarding “[t]he existence or nonexistence of
any fact testified to by [a witness],” and is therefore relevant to a
witness’s credibility. (Evid. Code, § 780, subd. (i).) Admission of
this evidence was accordingly entrusted to the trial court’s
discretion to decide whether its probative value was substantially
outweighed by the danger of unfair prejudice. (Rodriguez, at pp.
9-10; People v. Mendoza (2011)
52 Cal. 4th 1056
, 1089-1090; Evid.
Code, § 352.) Here, evidence of defendant’s possible possession of
methamphetamine in April 2019 had moderate probative value
not only to impeach him, but also to corroborate Sandra’s
testimony that defendant was high at the time he attacked her in
February 2019, which helped to explain his seemingly sudden
explosion of violence as well as his subsequent misperception of
the event. Conversely, the fact that defendant possessed a
substance that looked like methamphetamine two months after
the charged offenses did not pose a great danger of unfair
prejudice given its minor nature and its lack of a clear link to the
14
charged crimes. A trial court striking the balance of these
considerations in favor of admission does not abuse its discretion.
Defendant’s chief response is to cite civil cases and criminal
cases that pre-date enactment of the Truth-in-Evidence Law (Cal.
Const., art. I, § 28, subd. (f)(2)) for the proposition that “‘“[a]
party cannot cross-examine his adversary’s witness upon
irrelevant matters, for the purpose of eliciting something to be
contradicted.”’” (Winifred D. v. Michelin North American, Inc.
(2008)
165 Cal. App. 4th 1011
, 1033; Bowman v. Wyatt (2010)
186 Cal. App. 4th 286
, 327; People v. Lavergne (1971)
4 Cal. 3d 735
,
744.) These cases do not apply in criminal matters because the
California Constitution now provides that “relevant evidence
shall not be excluded in any criminal proceeding,” subject to the
trial court’s usual exercise of its authority under Evidence Code
section 352. (Cal. Const., art. I, § 28, subd. (f)(2);
Rodriguez, supra
, 20 Cal.4th at pp. 9-10.) And even if we assumed that this
old maxim still applied and that the trial court therefore erred in
admitting this evidence, “it is not reasonably probable that a
result more favorable to [the] defendant would have resulted”
given the overwhelming evidence against defendant, the
implausible testimony he provided, and the collateral nature of
this evidence to the charged offenses. (People v. Cole (2004)
33 Cal. 4th 1158
, 1195; see generally People v. Watson (1956) 46
Cal.2d, 818, 835-836.)
D. Cumulative error
Defendant also argues that the evidentiary errors,
considered cumulatively, warrant reversal. In light of our
determinations that some of the alleged errors are not errors at
all, and that none of them is prejudicial, we further conclude that
adding them together is also not prejudicial.
15
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
______________________, J.
HOFFSTADT
We concur:
_________________________, P. J.
LUI
_________________________, J.
ASHMANN-GERST
16 |
4,639,313 | 2020-12-03 20:02:30.414391+00 | null | https://www.courts.ca.gov/opinions/nonpub/D077132.PDF | Filed 12/3/20 P. v. Alexander CA4/1
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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D077132
Plaintiff and Respondent,
v. (Super. Ct. No. SCD282614 )
LAMAR ALEXANDER,
Defendant and Appellant.
APPEAL from a postjudgment order of the Superior Court of San Diego
County, Melinda J. Lasater, Judge. Affirmed; remanded with directions.
Sheila O’Connor, under appointment by the Court of Appeal, for
Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A.
Sevidal, Andrew Mestman and Minh U. Le, Deputy Attorneys General, for
Plaintiff and Respondent.
Lamar Alexander was charged with forcible oral copulation (Pen.
Code,1 § 287, subd. (c)(2)(a); count 1); two counts of willful infliction of
corporal injury (§ 273.5, subd. (a); counts 2 and 4); and one count of
unlawfully taking or driving a vehicle valued over $950 without the owner’s
consent (Veh. Code, § 10851, subd. (a); count 3). As to counts 2 and 4, it was
alleged that Alexander personally inflicted great bodily injury on the victim
(§ 12022.7, subd. (e)). The information also alleged Alexander had a prior
strike conviction (§§ 667, subds. (b)-(i), 668, 1170.12), a prior serious felony
conviction (§§ 667, subd. (a)(1), 668, 1192.7, subd. (c)), a prior prison term
(§ 667.5, subd. (a)), and two prior convictions that rendered him ineligible for
probation (§ 1203, subd. (e)(4)).
A jury convicted Alexander of count 2, but found not true the allegation
that he personally inflicted great bodily injury on the victim. The jury
acquitted Alexander on counts 1 and 3 and failed to reach a verdict on
count 4. The court then granted the prosecution’s motion to dismiss count 4.
In a bifurcated proceeding, Alexander admitted he had a prior strike
conviction and two prior convictions that rendered him ineligible for
probation.
The court sentenced Alexander to prison for the upper term of four
years, which was doubled to eight years for the prior strike conviction. In
addition, the court issued two protective orders under section 136.2—one for
1 Statutory references are to the Penal Code unless otherwise specified.
2
the victim in the instant matter (S.L.) and the other for a witness (K.S.)2 in
this case who was a victim in a previous case against Alexander.
Alexander appeals, challenging only the issuing of the protective order
against K.S. Although he did not object to the protective order, Alexander
maintains the order was unauthorized; thus, he can raise this objection at
any time. We conclude the court was authorized to issue a protective order in
favor of K.S. As such, we determine Alexander forfeited his challenge here
and affirm.
FACTUAL BACKGROUND
Alexander does not challenge his conviction, and the parties do not
dispute the majority of the facts. Therefore, we will adopt the factual
summary from the respondent’s brief to provide background for our later
discussion of the protective order issued in favor of K.S.
Prosecution
Around March of 2019, S.L. met Alexander at a Jewish community
services center in San Diego. S.L. and Alexander were both homeless and
lived out of their cars, which they parked in the parking lot at the community
services center. They became friends and then began a sexual relationship
on Easter of that year. Alexander’s car was subsequently damaged in a car
accident, and he stayed with S.L. in her car. They occasionally stayed in
motels.
2 This witness’s name was spelled three different ways in the record. We
identify the witness by her initials based upon the spelling of her name as it
appears in the reporter’s transcript. From our review of the record, it
appears that the different spellings were simply clerical errors. There was
only one witness who testified at trial, who was not the victim of the
underlying offenses, and also was the subject of a protective order. To avoid
confusion, we refer to this witness as “K.S.” throughout this opinion.
3
On June 8, 2019, they were staying at a motel in San Diego when
Alexander choked S.L. while she was on the bed.3 S.L. could not breathe and
felt Alexander was going to kill her. S.L. was “close to blacking out” when
Alexander finally released his grip. S.L. suffered bruising to her neck, face,
and eyes. She did not report the incident to the police.
A few days later on June 12, while she was driving, S.L. noticed a car
following her and believed it was Alexander. She panicked and called the
police. When the police arrived, S.L. and the officer checked and confirmed
that it was not Alexander in the car S.L. believed was following her. After
that incident, S.L. told Alexander that their relationship was over.
Alexander proceeded to call S.L. and told her that he had no means of
transportation. S.L. eventually gave in and drove him to the showers at the
beach and to work. He reimbursed her for gas. Although they did not
resume their relationship, S.L. also agreed to stay at motels with Alexander
again.
On July 21, 2019, S.L. and Alexander checked in at the Days Inn on
Adobe Falls Road after they bought groceries. They both drank beer and
other alcoholic drinks in the motel room. At some point thereafter, Alexander
left the room. She called Alexander two or three times and sent him at least
three text messages; he did not pick up the phone or respond to her messages.
When Alexander returned to the motel room, he told S.L. that he went
to buy groceries for breakfast in a matter-of-fact manner. S.L. was very
angry. Alexander then began cooking and made himself a drink. S.L. and
Alexander began to argue. Alexander approached S.L., who was sitting on
one of the two beds, and pulled her feet out from underneath her, dragged her
3 The jury did not reach a verdict on count 4, which was based on the
June 8 incident.
4
to the foot of the bed, and pulled off her pants and underwear. When S.L.
kicked him, Alexander punched S.L.’s leg. When she managed to kick him
again, Alexander got on top of her, straddled her, and punched her face with
both of his fists.
At some point during the attack, S.L. called 911. The police eventually
showed up to the motel room and S.L. was taken to the hospital by an
ambulance. S.L. suffered bruising and cuts to her face and her hand.
Specifically, her nose was cut and bleeding, she had cuts on her eyelid and
chin, and her eyes were swollen shut. S.L. also had a bruise on her leg from
Alexander punching it.
K.S., Alexander’s ex-wife, testified at trial. They were married for five
years but had been in a relationship for 22 years. When she was 16 years
old, Alexander beat K.S. at his cousin’s house after she made a comment
about him going to a baseball game with friends. He pulled her by the hair
into the bathroom and gave her a bloody nose. He cried, apologized, and said
it would never happen again. On a subsequent occasion, Alexander choked
K.S. with his hands in his grandmother’s car until she lost consciousness.
After their daughter was born in 1987, Alexander choked K.S. again to
take money she had saved to buy a stroller. He subsequently choked her
again after they had an argument in Golden Hill. He rolled up a towel, came
up from behind her, and choked her with the towel until she told him where
she had hidden money.
After their son was born in 1993, Alexander hit K.S. in the head as she
was driving them home from a Chargers game. When their son was 10 years
old, Alexander and K.S. had an argument while they were staying in a hotel
on New Year’s Eve. K.S. had refused to give Alexander the car keys because
they had been drinking. After Alexander demanded the keys from K.S., he
5
threatened her, “You need to release the car or I’m going to come back and
throw you over the balcony.”
In 2007, before she left him, they were in Temecula when she came
home to Alexander pacing. When Alexander discussed their daughter and
son-in-law’s relationship, K.S. told Alexander that it was not their business
and they should stay out of it. Alexander became irate and threw a meat
cleaver at K.S. The cleaver flew by K.S.’s head and their six-month-old
grandson. That night, Alexander fought with K.S. and threw her several
times onto the bed. K.S. went to work with bruises on her arm. After that
incident, K.S. stopped making excuses for Alexander and left him. She called
the police to escort her while she retrieved some of her belongings from their
house. Alexander continued to call K.S. and send her text messages as well
as call her friends.
In January 2008, K.S. obtained a restraining order against Alexander.
On February 7, 2008, K.S. arrived at work and opened her car door to
get out when she noticed Alexander running up to her. He reached her
driver’s side door and screamed at her. He then began punching her on the
left side of her head. He next bit her left ear. He dragged K.S. out of her car
and pulled her toward his car as she tried to resist by grabbing onto other
cars in the parking lot. When she fell to the ground, Alexander began to kick
her and told her to get up. A coworker heard K.S. screaming and grabbed
Alexander. Meanwhile, K.S. was on top of the hood of a car. Alexander then
bit K.S. in the chest. K.S. somehow managed to get away and got into her
car. As she reversed her car to drive away, she observed Alexander reversing
his own car “dead straight” toward her and with “full force.” He hit a pole
before driving forward and striking K.S.’s car. Alexander then got out of his
car, pulled a bundle of firewood out of his car, and threw it into K.S.’s rear
6
windshield, smashing it. He next reached into K.S.’s car, through the broken
windshield, grabbed ice tea bottles, and threw them at her. At that point,
K.S.’s coworkers pinned Alexander to the ground, helped K.S. out of her car
through the passenger side door, and escorted her inside.
Defense
Alexander called several character and law enforcement witnesses, as
well, and testified in his defense. Specifically, he testified that S.L. charged
at him on June 8, 2019, because she wanted to go outside and see a brawl.
She ran into his hands and that was the extent of the physical altercation.
As for the night of July 21, 2019, Alexander testified that he told S.L. he was
going to take her car to the store. According to Alexander, they had
consensual oral sex. After he came back to the hotel room, they argued and
S.L. told him that she called the police because he stole her car. When the
police showed up at their room, S.L. put her arms around Alexander and
started screaming to the police that they would have to break down the door.
To get her off of him and reach the door, Alexander began to swing his elbows
and struck her several times with his left and right elbows. He also “did a
couple of heel kicks to get her off [him].”
DISCUSSION
I
THE PROTECTIVE ORDER
A. Alexander’s Contentions
Alexander argues the court lacked the statutory authority under
section 136.2 to issue a protective order as to K.S. Specifically, he argues
that section 136.2 does not apply in the instant matter because the protective
order issued after he was convicted and K.S. is not a victim as defined in the
7
statute. Alexander further argues good cause did not support the issuance of
the protective order as to K.S.
B. Background
Alexander admitted that he had a prior strike conviction for attempted
murder. The victim in that case was K.S. K.S. testified against Alexander in
the instant matter.
At the sentencing hearing, Alexander’s trial counsel noted on the record
that the prosecution was seeking ten-year protective orders for S.L. and K.S.
He did not object to the orders, stating “we don’t have any issues with
[them].”
According to the probation report, Alexander was sentenced to seven
years in prison for his 2008 conduct that resulted in convictions for attempted
murder and assault. He was paroled in 2014 and discharged from parole in
2016. The probation officer noted that “[a]lthough he was law abiding after
his release from prison, within three years of discharging from parole, he is
now again before the Court for a felony domestic violence case involving
injury to a previous significant other.”
The trial court subsequently signed off on the protective orders and
served Alexander with them. The orders prohibited any contact with S.L.
and K.S. and indicated they were issued under section 136.2 and would
expire after 10 years.
C. Analysis
As a threshold matter, we observe that Alexander did not object in the
trial court to the issuance of a protective order as to K.S. In fact, his attorney
agreed to the issuance of that order. Typically, under such circumstances, we
would find this issue forfeited. (People v. Trujillo (2015)
60 Cal. 4th 850
, 856-
857.) However, Alexander contends forfeiture is not applicable here because
8
the challenged protective order is an unauthorized sentence, and, as such,
this issue can be raised for the first time on appeal. (See People v. Robertson
(2012)
208 Cal. App. 4th 965
, 995.) As we explain post, we determine that the
trial court was authorized to issue the subject protective order; thus,
Alexander forfeited his challenge here by not objecting in the trial court.
Alexander first argues the protective order in favor of K.S. is not
authorized under section 136.2 because that statute does not provide for post-
conviction protective orders. To this end, he urges us to follow People v.
Corrales (2020)
46 Cal. App. 5th 283
(Corrales). Alexander’s reliance on that
case is misplaced.
In this matter, in executing both the protective orders, the court
checked a box on each of the form orders indicating it was issuing the
protective orders under section 136.2. Section 136.2 authorizes protective
orders during the pendency of criminal proceedings and as prejudgment
orders. (See
Corrales, supra
, 46 Cal.App.5th at pp. 285-286.) Its purpose is
to “ ‘ “protect victims and witnesses in connection with the criminal
proceeding in which the restraining order is issued in order to allow
participation without fear of reprisal.” ’ [Citation.]” (Id. at p. 286.)
In Corrales, the appellate court reversed the trial court’s postjudgment
protective order issued under section 136.2 that prohibited the defendant
from coming within 100 yards of a certain area.4 The appellate court
explained that “section 136.2 is not the proper vehicle for obtaining a
postjudgment restraining order because that statute authorizes protective
orders only during the pendency of criminal proceedings . . . .” (Corrales,
4 The defendant had been convicted of misdemeanor unlawful burning of
property of another in violation of section 452, subdivision (d). The defendant
had set fire to a palm tree next to a strip mall. (
Corrales, supra
, 46
Cal.App.5th at p.
285.) 9 supra
, 46 Cal.App.5th at p. 287.) However, the appellate court explicitly
noted that subdivision (i)(1) of section 136.2 authorizes postjudgment orders
in certain circumstances. (Corrales, at pp. 286, 287, fn. 3.) One such
circumstance is a crime involving domestic violence, like the instant matter.
(See
id. at p. 287,
fn. 3; see § 136.2, subd. (i)(1).)
Here, the People argue the court simply made a clerical error and
intended to check the box indicating that it was issuing the protective order
under section 136.2, subdivision (i)(1). Alexander maintains we cannot make
that assumption. The People have the better argument.
It is undisputed that Alexander was convicted of a species of domestic
violence, more specifically, willful infliction of corporal injury. Thus, he
would be subject to the issuance of a protective order under section 136.2,
subdivision (i)(1).5 From the context presented in the record, clearly such a
protective order was the aim of the prosecution. Indeed, at sentencing
Alexander’s trial counsel acknowledged that the prosecution was seeking two
5 Section 136.2, subdivision (i)(1) provides: “When a criminal defendant
has been convicted of a crime involving domestic violence as defined in
Section 13700 or in Section 6211 of the Family Code, a violation of
subdivision (a) of Section 236.1, Section 261, 261.5, 262, subdivision (a) of
Section 266h, or subdivision (a) of Section 266i, a violation of Section 186.22,
or a crime that requires the defendant to register pursuant to subdivision (c)
of Section 290, the court, at the time of sentencing, shall consider issuing an
order restraining the defendant from any contact with a victim of the crime.
The order may be valid for up to 10 years, as determined by the court. This
protective order may be issued by the court regardless of whether the
defendant is sentenced to the state prison or a county jail or subject to
mandatory supervision, or whether imposition of sentence is suspended and
the defendant is placed on probation. It is the intent of the Legislature in
enacting this subdivision that the duration of a restraining order issued by
the court be based upon the seriousness of the facts before the court, the
probability of future violations, and the safety of a victim and the victim’s
immediate family.”
10
such orders and that he did not object to them. The court later issued the
orders. It simply inadvertently checked the wrong boxes. This is clear
scrivener’s error, which we may order the trial court to correct. (See People v.
Mitchell (2001)
26 Cal. 4th 181
, 185.)
Having determined that the court was issuing the protective order as to
K.S. under section 136.2, subdivision (i)(1), we next turn to Alexander’s claim
that K.S. is not a victim as defined by the statute.
The standard for whether an individual is a victim for the purposes of a
criminal protective order is broad. Victim is defined in section 136,
subdivision (3), as “any natural person with respect to whom there is reason
to believe that any crime as defined under the laws of this state or any other
state or of the United States is being or has been perpetrated or attempted to
be perpetrated.” (§ 136, subd. (3); see People v. Beckemeyer (2015)
238 Cal. App. 4th 461
, 465; People v. Race (2017)
18 Cal. App. 5th 211
, 219 [the
term victim “must be construed broadly to include any individual against
whom there is ‘some evidence’ from which the court could find the defendant
had committed or attempted to commit some harm”].) A court may consider
all competent evidence before it in determining whether to issue a criminal
protective order pursuant to section 136.2. (Race, at p. 220.)
Here, it is undisputed that Alexander committed a crime involving
domestic violence against K.S. And Alexander even concedes “it would seem
that [K.S.] would be covered under” section 136.2, subdivision (i)(1) “on its
face.” However, Alexander argues that courts have not addressed whether
victims of previous crimes by a defendant would qualify as victims under the
statute, especially when “no evidence was presented” that they need any
protection from the defendant. Alexander also points out that his crimes
against K.S. were over ten years old.
11
In support of his position, Alexander asks this court to follow Ritchie v.
Konrad (2004)
115 Cal. App. 4th 1275
(Ritchie). That case is not helpful here.
In Ritchie, the court was not determining the definition of victim for a
protective order under section 136.2, subdivision (i)(1). Instead, the court
was concerned about a renewal of a protective order under Family Code
section 6345. In construing that statute, the appellate court noted “in
contested cases, a court is only justified in ordering an extension of such an
order where it finds to do so will advance the legislative purpose of
preventing abuse. This means it must find evidence there is some reasonable
risk, at least, such abuse will occur sometime in the future if the protective
order is not renewed.” (Ritchie, at p. 1287.)
In addition, Alexander’s reliance on Ritchie actually undermines his
argument that the protective order in favor of K.S. is an unauthorized
sentence. “[A] sentence is generally ‘unauthorized’ where it could not
lawfully be imposed under any circumstance in the particular case.”
(People v. Scott (1994)
9 Cal. 4th 331
, 354.) However, the appellate court in
Ritchie did not address an unauthorized sentence, but instead, discussed
what evidence was required for renewal of a restraining order under Family
Code section 6345. (See
Ritchie, supra
, 115 Cal.App.4th at p. 1287.)
Further, Alexander does not argue that K.S. could never be a victim for
purposes of a protective order under section 136.2, subdivision (i)(1). Rather,
he maintains “no evidence was presented that she needed any protection
from [him].” In other words, Alexander is arguing that K.S.’s circumstances
do not warrant a protective order under that subdivision. Specifically, he
observes that a protective order is not warranted in her case because there is
no evidence she had “any reasonable apprehension of fear,” K.S. had not seen
Alexander for over ten years since he pled guilty to his crime against her, and
12
there was no evidence that K.S. requested a protective order. These are all
arguments he could have raised in the trial court that would address whether
a protective order was warranted under the circumstances. These are not
arguments that the court lacked the authority to issue the protective order.
In short, K.S. was a victim as defined under section 136,
subdivision (3). Moreover, it is undisputed that Alexander was convicted of a
crime of domestic violence against her thus triggering the possibility of a
protective order under section 136.2, subdivision (i)(1). We therefore
conclude the court was authorized to issue a protective order in K.S.’s favor
after trial in the instant action. K.S. testified against Alexander in his
current domestic violence case, she was previously married to Alexander, and
was the victim of domestic violence at the hands of Alexander. If Alexander
did not believe these circumstances warranted a protective order as to K.S.,
he could have objected. He did not do so, and thus forfeited his objections
here. (See People v.
Trujillo, supra
, 60 Cal.4th at pp. 856-857.)
In somewhat of a throw-away argument, Alexander contends that if we
find forfeiture on appeal, then of necessity his counsel provided ineffective
assistance of counsel under the Sixth Amendment. Alexander bears the
burden of showing counsel’s representation was defective, and he was
prejudiced as a result. (Strickland v. Washington (1984)
466 U.S. 668
, 690
(Strickland).) On the record before us, Alexander cannot satisfy either prong
of the Strickland test.
“ ‘In order to establish a claim of ineffective assistance of counsel,
defendant bears the burden of demonstrating, first, that counsel’s
performance was deficient because it “fell below an objective standard of
reasonableness [¶] . . . under prevailing professional norms.” [Citations.]
Unless a defendant establishes the contrary, we shall presume that “counsel’s
13
performance fell within the wide range of professional competence and that
counsel’s actions and inactions can be explained as a matter of sound trial
strategy.” [Citation.] If the record “sheds no light on why counsel acted or
failed to act in the manner challenged,” an appellate claim of ineffective
assistance of counsel must be rejected “unless counsel was asked for an
explanation and failed to provide one, or unless there simply could be no
satisfactory explanation.” [Citations.] If a defendant meets the burden of
establishing that counsel’s performance was deficient, he or she also must
show that counsel’s deficiencies resulted in prejudice, that is, a “reasonable
probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” ’ ” (People v. Lopez (2008)
42 Cal. 4th 960
, 966; see
Strickland, supra
, 466 U.S. at pp. 690, 694.)
Alexander contends there is no satisfactory explanation for his trial
counsel’s failure to object to the issuance of a protective order in favor of K.S.
Although defense counsel’s reasons for failing to object are not explicitly
stated in the record, there is a plausible tactical reason for a lack of objection.
When counsel represented to the court that he did not “have any issues with”
the issuance of protective orders for both K.S. and S.L., he was arguing to
minimize the amount of prison time Alexander would receive. Defense
counsel could have believed it prudent strategy to agree to the issuance of
protective orders in favor of two victims of domestic violence perpetuated by
Alexander to persuade the trial court that it would be safe to give Alexander
a lesser sentence. Alternatively stated, counsel could have believed the
issuance of protective orders against Alexander’s victims would decrease the
amount of prison time his client would have to serve.
The decision whether to object to an argument is an inherently tactical
one that is not ordinarily reviewable on appeal. (People v. Harris (2008) 43
14 Cal. 4th 1269
, 1290; People v. Frierson (1991)
53 Cal. 3d 730
, 749.) And
usually, “ ‘where counsel’s trial tactics or strategic reasons for challenged
decisions do not appear on the record, we will not find ineffective assistance
of counsel on appeal unless there could be no conceivable reason for counsel’s
acts or omissions.’ ” (People v. Nguyen (2015)
61 Cal. 4th 1015
, 1051.) Under
these principles, no ineffective assistance of counsel appears here.
In addition, Alexander’s claim of ineffective assistance fails for the
absence of a showing of prejudice. (See People v. Fairbank (1997)
16 Cal. 4th 1223
, 1241.) “A defendant must prove prejudice that is a ‘ “demonstrable
reality,” not simply speculation.’ ” (Ibid.) Here, Alexander has offered no
argument that he suffered prejudice. Instead, he merely repeats his
argument that the protective order was unauthorized and then assumes the
court would have sustained an objection to it. Put differently, Alexander
simply asks us to assume he was prejudiced. We will not do so. As such, he
has not shown he was prejudiced by his counsel’s failure to object.
15
DISPOSITION
The order is affirmed. We remand this matter to the superior court
with instructions that the court indicate the protective order as to K.S. was
issued under section 136.2, subdivision (i)(1). To avoid any confusion and to
correct an additional scrivener’s error, we also direct the court to make the
same correction on the protective order form as to S.L.
HUFFMAN, Acting P. J.
WE CONCUR:
IRION, J.
GUERRERO, J.
16 |
4,639,314 | 2020-12-03 20:02:31.123575+00 | null | https://www.courts.ca.gov/opinions/nonpub/F081327.PDF | Filed 12/3/20 In re J.G. CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
In re J.G. et al., Persons Coming Under the
Juvenile Court Law.
TULARE COUNTY HEALTH AND HUMAN F081327
SERVICES AGENCY,
(Super. Ct. No. JJV072025A,
Plaintiff and Respondent, JJV072025B, JJV072025C,
JJV072025D, JJV072025E)
v.
ADRIANA G., OPINION
Defendant and Appellant.
THE COURT*
APPEAL from order of the Superior Court of Tulare County. John P. Bianco,
Judge.
Carolyn S. Hurley, under appointment by the Court of Appeal, for Defendant and
Appellant.
Jennifer M. Flores, County Counsel, John A. Rozum and Jason Chu, Deputy
County Counsel, for Plaintiff and Respondent.
-ooOoo-
* Before Franson, Acting P.J., Snauffer, J. and De Santos, J.
Adriana G. (mother) appeals from an order after a Welfare and Institutions Code
section 366.261 hearing terminating her parental rights to her five children. Jaime G.
(father) did not appeal.
Mother contends for the first time on appeal that she did not receive statutorily
proper notice of the continued section 366.26 hearing. Mother contends this constitutes
“structural” error, and therefore requires automatic reversal.
Finding harmless error, we affirm.
STATEMENT OF THE FACTS AND PROCEDURE
On January 8, 2019, mother, father and their five children, ranging in age from
seven months to eight years, came to the attention of the Tulare County Health and
Human Services Agency (agency) when they were discovered living in a tent in a field
behind a fast food restaurant. The children were muddy and had head lice. Father told
the police officer who located them that they had recently moved from Nevada and were
staying with his sister until they had an argument and left. Mother and father stated they
had no family to provide support.
At an agency team decision meeting the following day, both mother and father
denied domestic violence or drug use, although both refused to spot test.
Detention
A section 300 petition was filed, alleging mother and father failed to provide the
children with adequate food, clothing, shelter and medical care due to their transient
lifestyle.
At the January 11, 2019, detention hearing, both mother and father were present
and were provided with JV-140 address forms and ordered to update the agency with any
changes in address or phone number. The juvenile court emphasized to mother and
1 All further statutory references are to the Welfare and Institutions Code unless
otherwise stated.
2.
father the importance of maintaining contact with the agency. Mother completed the
form, designating an address on Highland Street in Visalia as her mailing address.
Mother and father were ordered to drug test that day. They were advised that, if they
tested negative, they would be relieved from further testing. If not, they were ordered to
attend a substance abuse assessment. A jurisdiction and disposition hearing was set for
March 15, 2019.
An amended section 300 petition was filed March 11, 2019, alleging father
physically abused one of the children by striking him on the head, face and stomach,
leaving visible scars on his face. The other children were alleged to be at risk of similar
harm. The petition also alleged substance abuse and domestic violence, as well as a
severe risk of emotional damage to two of the children, who were observed inflicting
self-harm and smearing and eating feces.
Jurisdiction/Disposition
The agency’s report for the jurisdiction/disposition hearing recommended mother
receive reunification services, but father be denied services pursuant to section 361.5,
subdivision (b)(13). It was also recommended that the Interstate Compact on the
Placement of Children (ICPC) be ordered for a maternal relative in Nevada.
The report detailed numerous instances of the children’s behaviors in foster care.
One child smeared and ate her feces, was very sensitive to having her diaper changed,
and stated “Chucky” and “daddy” “hurt her.” One child was very reluctant to speak, and
was parentified, making sure all the other children had their food before she would eat.
She did state that, when they were with mother and father, they did not own a toothbrush
or hairbrush and wore the same clothing over and over. All the children were hoarding
food, except for the baby.
One of the children was waking up multiple times at night with nightmares. The
children reported seeing father hit mother often. When the children were taken to a fast
food restaurant, one of the children crawled under the tables and proceeded to eat the
3.
food dropped on the floor. The two oldest children were receiving expedited mental
health assessments.
When the social worker met with mother and father at the end of January 2019,
they were still living in the tent in a field. Both were dirty and had an “unexplained
chemical odor.” Father admitted that he physically disciplined the children and that he
had taught the oldest child, then eight years old, to help care for her siblings to teach her
responsibility.
Father at first denied any domestic violence. But when confronted with
information about an incident in November of 2018 in which mother had to go to the
hospital after father hit her, father acknowledged that it had happened but claimed it was
an isolated incident.
When spoken to outside father’s presence, mother explained that the scars on her
face were from “picking” and not from domestic abuse. Mother, who was 29 years old,
stated that she started using marijuana at age 15 and methamphetamine at 18. She denied
ongoing methamphetamine issues, but that her frequent use of methamphetamine began
just recently.
Mother had an “on and off” relationship with father for nine years. Mother
chronicled their transient life, between Nevada and Tulare County, sometimes with father
and sometimes on her own. The domestic abuse incident in November of 2018 occurred
in a motel room when father beat her up after learning she had talked to another man.
Mother admitted both she and father were under the influence of methamphetamine at the
time and that the children were present, but mother insisted they did not witness it.
Father was arrested and released. Mother explained that she stays clean and sober when
away from father.
Mother insisted that the last time they used drugs was the day before the children
were detained. She denied “ongoing” domestic violence. When asked why the children
4.
were afraid of “Chucky,” mother stated that he was a character in a movie the children
were not supposed to watch but did anyway.
The social worker spoke with mother’s family in Nevada on January 30, 2019.
Mother’s relatives were very concerned for the safety of the children, due to mother and
father’s ongoing issues with domestic violence and substance abuse. The relatives tried
to care for mother and the children by taking them in and enrolling them in school, but
mother would not let the relatives take the children to doctor and dental visits. The
children hoarded food. In one instance in September of 2018, when mother was under
the influence, she hit and yelled at the children and did not want them near her. The
oldest child told the relatives that, when father hits mother, she takes the other children
and hides with them under a blanket to keep them from seeing it. The relatives had
offered mother help with the domestic violence and substance abuse, but she refused.
When asked, the oldest child said she would like to return to her cousins and
grandmother in Nevada, but worried about mother and father not having money, a job, or
home. The children were able to describe graphic scenes involving “Chucky” in the
movie, which they watched while living with mother and father.
Mother and father attended visits with the children, but reeked of urine, feces, and
body odor. When asked to clean up before visits, they agreed, and reported that they
were now camping in a different location, as they had been asked by the police to move
from the field.
On February 8, 2019, mother and father were reminded to register for random
drug testing and were provided the necessary information to do so. The social worker
later learned that, at a visit that day, father took one of the children’s dolls, twisted its
head around, and told her it was “Chucky.” Mother attempted to stop father, but the child
had nightmares that night.
On February 12, 2019, mother’s relatives expressed a desire to have relative
placement of the children while mother and father completed services.
5.
Mother was asked but refused to sign a release for the children’s mental health
assessments.
The report summarized multiple instances of the children’s concerning behaviors
reported by the children’s caregivers, including multiple instances of self-harm, harm to
the other siblings, and the fact that the children thought it funny to hurt each other and
family pets. One of the children had described an incident in which father took a shotgun
and shot the child’s dog.
Mother and father continued to arrive at visits with poor hygiene. When it was
suggested on March 1, 2019, that they go to a shelter, mother was interested but father
was not. Father was under the influence and refused to say when he had used drugs;
mother stated they had both used two days prior. Mother and father claimed problems
with their Medi-Care as an explanation for why they had not yet attended the alcohol and
drug assessment, but said they had an appointment at the end of the month. Both mother
and father tested positive for methamphetamine when asked to spot test.
On March 4, 2019, mother and father arrived at the visit much cleaner, but mother
had visible bruises on her face. Mother and father had missed three of the scheduled 11
visits since detention. During visits, neither mother nor father placed boundaries on the
children. Mother did most of the holding and cleaning of the baby. Mother continued to
be very timid, and only engaged with the children when they spoke to her. The oldest
child asked mother and father at each visit whether they had a job or a home, and asked if
they had eaten before she would take any of the snacks they brought with them. Father
dozed off during visits.
A contested jurisdictional hearing was requested and set for April 24, 2019. Prior
to the hearing, the agency filed an addendum report which stated that mother and father
had not yet started any services, although both mother and father admitted continued drug
use.
6.
On April 12, 2019, mother arrived later for a visit, which was cancelled. She
arrived without father and had fresh bruises on her cheek, which was swollen. Her left
eye was completely blood shot and she had other bruises on her face and arms in various
stages of healing. Mother would not say how she received her injuries.
The report included continued instances of the mother and father being unable to
manage the children during visits and of the children harming animals in the foster home.
The oldest child’s teacher requested school-based therapy as the child refused to speak.
The April 24, 2019 jurisdictional hearing was continued to May 8, 2019. Prior to
the hearing, the agency filed a second amended section 300 petition, adding the allegation
that mother failed to protect one of the children from physical abuse by father.
An addendum report filed by the agency reported that mother and father continued
to be homeless and continued to use drugs. Mother claimed father’s abuse was triggered
by father watching pornography and thinking the women on the videos are mother having
sex with father’s brother. Mother promised to begin her services.
On May 3, 2019, the resource parent reported that one of the children did not want
to visit mother and father as they had told her the children were going to be placed with
relatives. The child did not mind the relatives but did not want to change schools.
At the May 8, 2019, jurisdictional hearing, the juvenile court found the second
amended petition true, granted reunification services for mother, but denied them for
father. Mother was admonished that, if she continued to allow herself to be a victim of
domestic abuse and did not participate in the recommended services, she might not be
allowed visits in the future. A six-month review hearing was set for October 9, 2019.
Six-Month Review
The report filed by the agency for the six-month review hearing recommended that
a section 366.26 hearing be set with a plan for relative adoption in Nevada. During the
reporting period the children had to be separated into two different homes, to decrease
certain behaviors. Maternal relatives from Nevada had had overnight visits with the
7.
children, which went well, but the relatives had not yet been approved through the ICPC
process by Nevada, due to the number of people in their home.
Mother and father had continued in their on and off relationship, still living in a
homeless encampment. Mother was difficult to get a hold of, so most interactions with
her took place prior to her visits with the children. On May 8, 2019, when mother arrived
at her mental health assessment, she reported that father had beaten her, and had done so
daily. Law enforcement was called. But when the social worker counseled mother to go
to a shelter, she refused and said she wanted to stay with father as he was her family. She
acknowledged attending visits with bruises but insisted that she tried to cover them so the
children could not see them.
Mother acknowledged continued drug use but denied that she needed drug
treatment. Father was arrested, but mother stated that she would not testify against him
and that she could not live without him.
On September 16, 2019, mother was transported to the agency offices. She had a
black eye and said father got mad and threw something at her. She again admitted
frequent drug use. According to mother, she and father looked through dumpsters for
cans to recycle in order to buy drugs. While mother acknowledged that she needed to
stay away from father if she wanted to be sober, she again declined an invitation to enter
a shelter. Mother said she could get family help, but she refused to accept it.
Mother began a mental health assessment and attended three sessions but stopped.
At two of the sessions, mother was visibly injured, and acknowledged father had caused
the injuries. Mother had not yet begun domestic violence victim or parenting education
classes. She was terminated from random drug testing for failing to show. She had not
attended a substance abuse treatment assessment. When offered a place in a residential
treatment program, mother declined.
Mother missed 12 of the scheduled 42 visits. One of the children displayed
inappropriate sexualized behavior during visits. Mother and father both had a difficult
8.
time controlling the children. Mother continued to arrive at visits with visible injuries to
her arms and face. A visit on September 23, 2019, which was to take place at a park, was
cancelled after mother and father had a fight and police were called. The social worker
had not been able to contact mother or father since that occurrence. Also, it was noted
that mother did not attend visits unless father was present.
A contested six-month review hearing was requested and scheduled for November
6, 2019.
At the hearing on November 6, 2019, each parent was present and provided an
offer of proof but no other evidence. Mother’s offer of proof was that she had an
appointment on November 13, 2019, for a substance abuse treatment assessment and she
had gone to counseling on October 18, 2019, with hopes of restarting therapy.
The juvenile court terminated mother’s services and a section 366.26 hearing was
set for March 11, 2020. Visits were reduced to twice monthly. The juvenile court
ordered both mother and father to be present at the section 366.26 hearing and provided
them with oral and written writ advisements.
Section 366.26 Hearing
On February 18, 2020, the agency filed notice of the hearing on selection of a
permanent plan, in which it noted that the recommended permanent plan was termination
of parental rights and implementation of a plan of adoption. The proof of service
indicated that notice was sent by both certified and first-class mail to mother at the
Highland Street address in Visalia, the address indicated on the completed JV-140 form.
The first-class mail to mother was deposited on January 6, 2020 and tracking on the
certified mail indicated it reached the Highland Street address on January 28, 2020.
The report prepared for the section 366.26 hearing recommended termination of
parental rights and adoption with maternal relatives in Nevada, if they were approved. If
not, the current care providers for two of the children, who had also earlier been the
9.
provider for all five, wished to adopt all five who were all now back in that home. The
other care provider also expressed an interest in adopting all five children.
On March 5, 2020, mother called the social worker and stated she was hospitalized
with an unknown discharge date. The social worker directed mother to contact her
attorney if she could not be present in court.
The children were all making progress on their various issues in the care providers
home, but some of the sexualized and aggressive behaviors continued. Mother attended
visits as allowed, missing one in February 2020. Father and mother still had trouble
controlling the children during visits, and the visitation supervisor had to step in often.
The section 366.26 report was mailed to mother at the Highland Street address on
March 10, 2020.
Mother was present with counsel on March 11, 2020, when father requested a
contested hearing, which was subsequently set for April 1, 2020.
On March 16, 2020, a maternal relative had contacted the social worker to say that
mother had come to the house beaten up and on drugs. They took her to an inpatient drug
treatment program, which she entered that day. The social worker again spoke to a
maternal relative on April 20, 2020, who reported that mother continued to remain in
treatment. An e-mail from the family member included a letter from mother and a letter
from the program director confirming mother was in the three-month program located in
Tijuana, Mexico. Mother’s expected completion date was June 16, 2020.
The hearing was later rescheduled to April 29, 2020, due to the COVID-19 virus.
The agency sent a notice of the change of the hearing to mother at the Highland Street
address on March 27, 2020, although they knew mother was residing in Tijuana at the
time. Due to ongoing covid concerns, the hearing was again rescheduled, this time to
May 27, 2020, and the agency again sent notice of the change of hearing date to mother
at the Highland Street address on April 2, 2020.
10.
On May 4, 2020, a letter was sent to mother, again at the Highland Street address,
and father explaining that, due to the virus, the hearing on May 27, 2020, would be held
by remote technology. The court would contact the individual by telephone and the
parties were advised to contact the social worker if their telephone numbers had changed.
On May 20, 2020, the agency filed an addendum report recommending parental
rights be terminated and a plan of adoption be established. Because the maternal
relatives in Nevada had been unable to make the necessary changes to their household,
their ICPC assessment had not been approved.
As noted above, the report stated that, on March 16, 2020, a maternal relative had
contacted the social worker to say that mother had come to the house beaten up and on
drugs. They took her to an inpatient drug treatment program, which she entered that day.
The social worker again spoke to a maternal relative on April 20, 2020, who reported that
mother continued to remain in treatment. An e-mail from the family member included a
letter from mother and a letter from the program director confirming mother was in the
three-month program located in Tijuana, Mexico.
Mother did not contact the social worker to inquire about the children or visitation.
On May 18, 2020, the social worker contacted the program and confirmed that mother
was still there. The social worker then spoke with mother, who said she was doing well,
staying clean, and learning the word of God. Mother stated that she did not leave father
because of domestic violence, but because she no longer wanted to use drugs. When
asked what she would do when she was done with treatment, mother said she planned to
live with father, but had not been able to speak to him to discuss their plans.
The social worker noted mother’s continued failure to recognize the severity of the
domestic violence in her relationship with father. The social worker arranged a video
chat between mother and the children. The Skype visit went well, although mother told
the oldest child to tell father that she loved and missed him.
11.
The children were now doing well in placement and two of them were released
from therapy.
Father was not able to complete any video visits with the children due to technical
difficulties. But he was able to have twice a month telephone contact. At a visit on
March 31, 2020, father told one of the children he did not know where mother was,
which caused the child to cry and worry. After a discussion with the social worker, father
told the child, at the next phone visit, that mother was away “at the store.” The child was
relieved to learn mother had been “found.”
The addendum report, which was completed on May 20, 2020, was mailed to
mother at an address in Tijuana, Mexico on that date. The report contained the May 27
date and time of the hearing on the face of the report, as well as the recommendation that
parental rights be terminated. The record contains no certainty that the addendum report
was received by mother.
At the May 27, 2020, section 366.26 hearing, neither mother nor father were
present, but both were represented by counsel. The juvenile court asked both counsel if
they wished to contact their clients. Father’s counsel said he did. Counsel for mother
stated, “there was a number in Mexico for the mother, who is in rehab, that was found by
the social worker, and I’ve given that number to the Court.” The agency’s counsel asked
that the number not be shared with father, due to the domestic violence issues.
Following a pause in the proceedings, the juvenile court stated that the court had
attempted to contact mother “and it went to voicemail.” Father was then contacted, and
counsel stated he would question father concerning the beneficial parent child
relationship exception. Father then testified by telephone regarding his visits with the
children. Mother’s counsel made no further requests.
At the conclusion of the hearing, the juvenile court found the children to be
adoptable and found that the parents had not demonstrated the beneficial parent child
exception and terminated their parental rights.
12.
DISCUSSION
Mother’s only contention on appeal is that she was not properly served with notice
of the continued section 366.26 hearing, constituting reversible per se error and requiring
remand for a new section 366.26 hearing. We agree that mother was not properly noticed
but find the error harmless beyond a reasonable doubt.
“Parents have a fundamental and compelling interest in the companionship, care,
custody, and management of their children. [Citation.] ‘[T]he state also has an urgent
interest in child welfare and shares the parent’s interest in an accurate and just decision.
[Citation.]’ [Citation.] To ensure that result, ‘[u]ntil parental rights have been
terminated, both parents must be given notice at each step of the proceedings.
[Citation.]’ [Citation.] The notice must comport with due process.” (In re DeJohn B.
(2000)
84 Cal. App. 4th 100
, 106.) “ ‘Notice is both a constitutional and statutory
imperative. In juvenile dependency proceedings, due process requires parents be given
notice that is reasonably calculated to advise them an action is pending and afford them
an opportunity to defend.’ [Citation.] ‘The child welfare agency must act with diligence
to locate a missing parent. [Citation.] Reasonable diligence denotes a thorough,
systematic investigation and an inquiry conducted in good faith. [Citation.] [¶]
However, there is no due process violation when there has been a good faith attempt to
provide notice to a parent who is transient and whose whereabouts are unknown for the
majority of the proceedings.’ ” (In re J.H. (2007)
158 Cal. App. 4th 174
, 182 (J.H.).)
“Constitutional issues are reviewed de novo.” (Id. at p. 183.)
Section 294 specifies the necessary procedures for service of notice for a section
366.26 hearing. As applicable here, notice must be given to the mother of the child and
all counsel of record. (§ 294, subd. (a)(1) & (8).) “Service of the notice shall be
completed at least 45 days before the hearing date. Service is deemed complete at the
time the notice is personally delivered to the person named in the notice or 10 days after
13.
the notice has been placed in the mail or sent by electronic mail, or at the expiration of
the time prescribed by the order for publication.” (§ 294, subd. (c)(1).)
Notice to the parents can be given by “Delivery to a competent person who is at
least 18 years of age at the parent's usual place of residence or business, and thereafter
served on the parent named in the notice by first-class mail at the place where the notice
was delivered or by electronic service pursuant to Section 212.5.” (§ 294, subd. (f)(4).)
Further, “Regardless of the type of notice required, or the manner in which it is
served, once the court has made the initial finding that notice has properly been given to
the parent, ... subsequent notice for any continuation of a Section 366.26 hearing may be
by first-class mail to any last known address, ... or by any other means that the court
determines is reasonably calculated, under any circumstance, to provide notice of the
continued hearing.” (§ 294, subd. (d), italics added.)
Here, on February 18, 2020, the agency filed notice of a section 366.26 hearing on
selection of a permanent plan scheduled for March 11, 2020. The notice stated that the
recommended permanent plan was termination of parental rights and implementation of a
plan of adoption. The proof of service indicated that notice was sent by both certified
and first-class mail to mother at the Highland Street address in Visalia, the address
indicated on the completed JV-140 form. The first-class mail to mother was deposited on
January 6, 2020, and tracking on the certified mail indicated it was delivered to the
Highland Street address on January 28, 2020.
Mother admits she received notice at the setting hearing on November 6, 2019, of
the March 11, 2020, date. She also acknowledges that she appeared at the initial section
366.26 hearing on March 11, 2020, and did not object when father requested a contested
hearing, which was then set for April 1, 2020. Thereafter the section 366.26 hearing was
continued twice due to the COVID-19 pandemic, with written notification being mailed
each time (April 2 and April 20) to the same Highland Street mailing address on file with
the juvenile court and the agency, which was provided by mother at the detention
14.
hearing. However, mother was residing in Tijuana as of March 16, so her statement that
she did not receive these notices is reasonable. On May 20, Mother was mailed a copy of
the addendum report prior to the May 27, 2020, hearing, which was properly sent to the
Tijuana, Mexico address of the treatment facility. There is nothing in the record to show
it was received by mother before the hearing. Mother insists that she did not receive
notice of these continuances, the first to April 29, 2020, and the second to May 27, 2020,
when the hearing was held.
Although the agency knew mother was residing in an inpatient treatment facility in
Tijuana on April 20, it was not reasonable for the agency to serve mother only at the
Highland Street location since they knew she would be residing in Tijuana at least until
June 16.
The agency contends mother waived any claim that notice was defective because
she was represented by counsel at the May 27, 2020 section 366.26 hearing, the juvenile
court found proper notice had been given, and counsel made no objection and did not
raise the issue that notice was defective.
“[A] reviewing court ordinarily will not consider a challenge to a ruling if an
objection could have been but was not made in the trial court.... [¶] Dependency matters
are not exempt from this rule.” (In re S.B. (2004)
32 Cal. 4th 1287
, 1293, fn. omitted.) In
In re Z.S. (2015)
235 Cal. App. 4th 754
, the father argued that his right to due process was
violated by inadequate notice of the termination hearing. The court found, “Father was
represented throughout, and his counsel acknowledged at the hearing that notice to father
had been found proper, and did not argue that father did not receive notice. This waives
his argument that notice was defective. Even ‘[a]ssuming proper notice was not given,
[the father]’s failure to raise the defect at the ... hearing constitutes waiver of the issue on
appeal.’ ” (Id. at p. 771.)
Here, mother was represented by counsel, who appeared at the section 366.26
hearing on May 27, 2020. Mother was represented by the same counsel throughout the
15.
dependency proceedings, beginning at detention on January 11, 2019. Although mother
was not present due to alleged lack of notice, mother’s counsel did not object or claim
that notice was defective. Counsel gave the court the number of the Tijuana
rehabilitation facility, but the record is silent as to when he received the number from the
agency or whether he had spoken to his client. As such, it is uncertain whether mother
waived any claim that her due process rights were violated by defective notice for the
continued section 366.26 hearing.
However, even if notice was deficient, and mother is found not to have waived any
objection to the notice, such error was harmless.2 (In re A.D. (2011)
196 Cal. App. 4th 1319
, 1325 [“a failure to give notice in dependency proceedings is subject to a harmless
error analysis”].) “If the outcome of a proceeding has not been affected, denial of a right
to notice and a hearing may be deemed harmless and reversal is not required.” (In re
James F. (2008)
42 Cal. 4th 901
, 918.) “The harmless error analysis applies in juvenile
dependency proceedings even where the error is of constitutional dimension.” (In re J.P.
(2017)
15 Cal. App. 5th 789
, 798, fn. omitted.) Reversible per se error is only indicated if
there was no attempt to serve notice on a parent.
(J.H., supra
, 158 Cal.App.4th at p.
183.)
In re Angela C. (2002)
99 Cal. App. 4th 389
, 395, this court held that the reversible
per se error standard not applicable for failure to notice mother of the continued section
366.26 hearing, based on mother participating in some previous proceedings and being
noticed of the original section 366.26 hearing. This was the case here, and mother does
not contest otherwise. Thus, the reversible per se error standard does not apply.
Several appellate courts have applied the harmless beyond a reasonable doubt standard of
Chapman v. California (1967)
386 U.S. 18
, 24, in determining whether defective notice
2 Because we will address the notice issue on the merits, we need not address
mother’s argument that counsel was ineffective for failing to object to notice.
16.
requires reversal.
(J.H., supra
, 158 Cal.App.4th at p. 183; In re Justice P. (2004)
123 Cal. App. 4th 181
, 183.)
Mother makes only a vague argument as to how the proceedings would have been
different had she been present at the section 366.26 hearing. At the section 366.26
hearing, the children were found to be adoptable. “The primary issue in a section 366.26
hearing is whether the dependent child is likely to be adopted.” (In re Angela
C., supra
,
99 Cal.App.4th at p. 395.) Since the children were found to be adoptable, mother had the
burden of showing that termination of her parental rights would be detrimental under one
of the statutory exceptions to adoption in section 366.26, subdivision (c)(1)(B).
Mother contends the exception that applies in this case is the beneficial parent
child relationship exception of section 366.26, subdivision (c)(1)(B)(i), which requires
that “the parents have maintained regular visitation and contact with the child and the
child would benefit from continuing the relationship.” (See also In re Angela
C., supra
,
99 Cal.App.4th at p. 396.) However, the record is clear that mother was inconsistent in
visitation, and she had not visited or even inquired about the children in the months
leading up to the continued section 366.26 hearing. Mother could not meet the first
prong of the exception to adoption.
Moreover, at the time mother’s reunification services were terminated, she
consistently failed to drug test and did not complete her mental health assessment. She
continued her relationship with father, who beat and abused her, and she refused to attend
visits if he was not also present. Many of the visits mother did have with the children
showed she was unable to control them and resulted in destructive behaviors on the part
of the children. Her noticeable bruises and scars frightened the children. There was no
evidence of a parental bond between mother and the children, or that it would be in the
children’s best interests to be returned to mother’s custody. As such, even if mother had
received proper notice and had been present at the section 366.26 hearing, and able to
17.
argue the beneficial parent child relationship exception, it is clear beyond a reasonable
doubt that her parental rights would still have been terminated.
Mother also makes the assertion that, had she been present, counsel would have
been able to request a continuance for her to be able to file a section 388 petition for
further reunification services, based on her participation in drug treatment and the vague
possibility that she was ready to leave father. However, mother was still in drug
treatment at the time of the hearing, had not begun any of her services, and expressed to
the social worker and one of her children just a week before the hearing that she loved
and missed father, failing to recognize the seriousness of the domestic violence between
the two. A section 388 petition would have been futile on the part of mother, as she
could not show the legitimate changed circumstances necessary for such a petition. (In re
Casey D. (1999)
70 Cal. App. 4th 38
, 48–49 [merely changing circumstances not
sufficient].)
There is no reasonable doubt that there would have been a different outcome to the
May 27, 2020, hearing other than termination of parental rights. Any error in notice to
mother on the continued hearing was therefore harmless.
DISPOSITION
The juvenile court’s order terminating mother’s parental rights is affirmed.
18. |
4,513,500 | 2020-03-06 15:11:16.038141+00 | null | http://www.search.txcourts.gov/RetrieveDocument.aspx?DocId=96690&Index=%5c%5coca%2dpsql12%2ecourts%2estate%2etx%2eus%5cTamesIndexes%5ccoa03%5cOpinion | TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-18-00439-CV
Appellant, Marsha McLane, in her Official Capacity as Director of the Texas Civil
Commitment Office // Cross-Appellants, Eric Thomas, John Williams, and Albert Mailhot
v.
Appellees, Eric Thomas, John Williams, and Albert Mailhot // Cross-Appellee,
Marsha McLane, in her Official Capacity as Director of the
Texas Civil Commitment Office
FROM THE 419TH DISTRICT COURT OF TRAVIS COUNTY
NO. D-1-GN-16-000239, THE HONORABLE ORLINDA NARANJO, JUDGE PRESIDING
MEMORANDUM OPINION
These cross-appeals challenge a district court’s order sustaining in part and
overruling in part a plea to the jurisdiction filed by the Director of the Texas Civil Commitment
Office. See Tex. Civ. Prac. & Rem. Code § 51.014(a)(8) (allowing interlocutory appeal). The
district court overruled the plea with respect to the claims brought pursuant to the Administrative
Procedures Act (APA), Tex. Gov’t Code §§ 2001.038, .171, but sustained the plea with respect
to “all other” claims. We will affirm in part, reverse in part, and render judgment dismissing the
claims against the Director.
BACKGROUND
In a series of otherwise unrelated proceedings in 2013 and 2014, a district court
ordered Eric Thomas, John Williams, and Albert Mailhot (collectively, Appellees) to civil
commitment in the custody of the Texas Civil Commitment Office and/or its predecessor.1
Following those proceedings, Appellees were allegedly ordered to undergo outpatient treatment
in what they describe as a “halfway house” near Houston, Texas. They allege that during this
period of confinement they were allowed to leave the premises, use public transportation,
entertain visitors, accept certain federal benefits, receive gifts, pursue gainful employment, etc.
In 2015, the Texas Legislature amended chapter 841 to revise the procedures by
which the State classifies individuals as sexually violent predators and the conditions of any
resulting court-ordered confinement. See generally Act of May 21, 2015, 84th Leg. R.S.,
ch. 845, § 4, 2015 Tex. Gen. Laws 2701–712 (now codified as further amended in scattered
sections of chapter 841 of the Health and Safety Code). This statute imbues the Office with
exclusive authority to determine where committed individuals will live and to develop a “tiered
program for the supervision and treatment of a committed person.” See Tex. Health & Safety
Code §§ 841.082, .0831(a). The statute also holds committed individuals, if not indigent,
responsible for the cost of housing and treatment. See
id. § 841.084.
The Legislature’s intent,
Appellees allege, was to allow individuals in civil custody to graduate from more restrictive to
less restrictive tiers of confinement until fully rehabilitated. Cf. id § 841.0834 (governing
“movement between programming tiers”). The amended statute applies to any civil commitment
proceeding initiated on or after June 17, 2015.
1 See Tex. Health & Safety Code §§ 841.001–.153 (setting forth commitment procedures
for allegedly sexually violent predators); Act of May 21, 2015, 84th Leg., R.S., ch. 845, § 1,
sec. 4, 2015 Tex. Gen. Laws 2701, 2701 (renaming the Office).
2
In September and October of 2015, the Director obtained amended commitment
orders placing Appellees in the tiered-treatment program. At some point thereafter, the Office
moved Appellees—along with nearly 200 others similarly classified—to a facility known as the
Texas Civil Commitment Center, which is located near Littlefield, Texas. The Center, a former
state penitentiary, is now operated by Correct Care, LLC, and is used exclusively for the
treatment of individuals confined under Chapter 841 of the Health and Safety Code.
Unhappy with the change from outpatient to inpatient treatment, Appellees sued
the Director to challenge various procedures used to introduce the new tiered-treatment program
and subsequently named the Office and Correct Care as co-defendants. Appellees complain that
they cannot leave the Center, cannot receive guests, have been rendered ineligible for certain
federal benefits, and have no means of obtaining gainful employment. They also allege that the
Office garnishes or otherwise recovers one-third (33⅓ % ) of the value of any income, gifts, or
supplies they receive. Essentially, Appellees contend that while the name of this facility has
changed, it still functions as a penitentiary.
After amending their petition for relief eight times, Appellees now primarily rely
upon the APA, see Tex. Gov’t Code § 2001.038, and ultra vires theories, see City of El Paso v.
Heinrich,
284 S.W.3d 366
, 373–80 (Tex. 2009), as the bases for their claims. Specifically, they
allege the Director violated the APA by promulgating existing rules improperly, by adopting
“unwritten rules” that she should have promulgated, and by promulgating rules that interfere
with existing legal rights. See Tex. Gov’t Code § 2001.171(a). They also plead ultra vires
claims arising from the Director’s adoption of regulations that they allege violate constitutional
and statutory rights. As redress for these alleged infractions, Appellees seek declaratory and
injunctive relief, a writ of mandamus, and damages.
3
The Director filed a plea to the jurisdiction in response to each of the nine
petitions for relief. In her live plea, she argues that Appellees have not identified any rules
subject to review under the APA and have not alleged any ultra vires act. The district court
accepted the latter argument but rejected the former, sustaining in part and overruling in part
the plea:
It is ordered, adjudged, and decreed, that McLane’s Plea to the Jurisdiction is
DENIED as to Plaintiff’s claims under the Texas Administrative Procedure Act.
It is further ordered, adjudged, and decreed, that McLane’s Plea to the Jurisdiction
is GRANTED in all other respects.
The Director timely perfected this appeal,2 and Appellees filed timely cross-appeal. See Tex.
Civ. Prac. & Rem. Code § 51.014(a)(8); Texas A&M Univ. Sys. v. Koseoglu,
233 S.W.3d 835
,
846 (Tex. 2007). Appellees filed a request for findings of fact and conclusion of law, which the
district court denied. The parties executed an agreement under which Appellees will undergo
“treatment in the same manner as was provided to them prior to September 15, 2015,” until this
appeal is resolved.
STANDARDS OF REVIEW
As an administrative agency of the State, the Office benefits from sovereign
immunity from suit, which deprives the courts of jurisdiction unless the State expressly consents
to the suit. Texas Dep’t of Parks & Wildlife v. Miranda,
133 S.W.3d 217
, 224 (Tex. 2004). A
waiver of sovereign immunity must be clear and unambiguous. See Tex. Gov’t Code § 311.034;
2 Although Correct Care filed a plea to the jurisdiction adopting the arguments made in
the Director’s plea to the jurisdiction, the district court did not address the claims against Correct
Care in its order disposing of the Director’s plea. Neither Correct Care nor the Office is party to
this appeal.
4
Wichita Falls State Hosp. v. Taylor,
106 S.W.3d 692
, 696 (Tex. 2003). “It is fundamental that a
suit against a state official is merely ‘another way of pleading an action against the entity of
which [the official] is an agent.’”
Miranda, 133 S.W.3d at 224
(quoting Kentucky v. Graham,
473 U.S. 159
, 165 (1985)). Thus, when a state official files a plea to the jurisdiction, the official
may invoke the sovereign immunity held by the government itself.
Koseoglu, 233 S.W.3d at 844
.
“[I]f a plea to the jurisdiction challenges the existence of jurisdictional facts, we
consider relevant evidence submitted by the parties when necessary to resolve the jurisdictional
issues raised, as the trial court is required to do.”
Miranda, 133 S.W.3d at 227
(citing Bland
Indep. Sch. Dist. v. Blue,
34 S.W.3d 547
, 555 (Tex. 2000)). “[I]n a case in which the
jurisdictional challenge implicates the merits of the plaintiffs’ cause of action”—as is the case
here—“and the plea to the jurisdiction includes evidence, the trial court reviews the relevant
evidence to determine if a fact issue exists.”
Id. “If the
evidence creates a fact question
regarding the jurisdictional issue, then the trial court cannot grant the plea to the jurisdiction, and
the fact issue will be resolved by the fact finder.”
Id. at 227–28.
“When a plea to the jurisdiction challenges the pleadings, we determine if the
pleader has alleged facts that affirmatively demonstrate the court’s jurisdiction to hear the
cause.”
Id. at 226
(citing Texas Ass’n of Bus. v. Texas Air Control Bd.,
852 S.W.2d 440
, 446
(Tex. 1993)). In making this determination, “[w]e construe the pleadings liberally in favor of the
plaintiffs and look to the pleaders’ intent.”
Id. (citing Texas
Ass’n of
Bus., 852 S.W.2d at 446
).
“If the pleadings do not contain sufficient facts to affirmatively demonstrate the trial court’s
jurisdiction but do not affirmatively demonstrate incurable defects in jurisdiction, the issue is one
of pleading sufficiency and the plaintiffs should be afforded the opportunity to amend.”
Id. at 5
226–27 (citing County of Cameron v. Brown,
80 S.W.3d 549
, 555 (Tex. 2002)). “If the
pleadings affirmatively negate the existence of jurisdiction, then a plea to the jurisdiction may be
granted without allowing the plaintiffs an opportunity to amend.”
Id. at 227.
As with other
jurisdictional issues, we review a defense of sovereign immunity de novo.
Id. at 226
, 228.
DISCUSSION
We begin by emphasizing the relatively narrow basis of Appellees’ challenge to
their commitment. Appellees stipulate that they “do not challenge the authority of the 435th
District Court . . . to enter the orders entered [sic] in 2015 placing them on the tiered treatment
program.” Nor do they raise an as-applied or facial challenge to the statute itself. Instead,
Appelles challenge certain rules promulgated pursuant to the statute and other informal policies
allegedly used to execute that statute, which requires the Office and its director to promulgate
rules “consistent with the purposes of th[e] chapter.” See Tex. Health & Safety Code § 841.141.
In the five briefs filed in these cross-appeals, the parties have articulated the
issues before the Court in various ways. For convenience and brevity, we will consolidate and
summarize these points for discussion. See Tex. R. App. P. 47.1 (requiring courts of appeals to
render opinions “as brief as practicable”). First, Appellees contend the district court erred by
declining to file findings and conclusions. Second, the Director contends the district court erred
by denying her plea to the jurisdiction with respect to Appellees’ claims under the APA. Third,
Appellees challenge the district court’s dismissal of their ultra vires claims that the Director
failed to promulgate additional rules and that existing rules and polices violate their
constitutional and statutory rights.
6
Findings and Conclusions
Appellees first challenge the trial court’s order denying their motion requesting
findings of fact and conclusions of law. Texas Rule of Civil Procedure 296 provides, “In any
case tried in the district or county court without a jury, any party may request the court to state in
writing its findings of fact and conclusions of law.” See Tex. R. Civ. P. 296. A trial court must
file its findings and conclusions in such cases. See
id. R. 297.
The present matter, however, is
before this Court on interlocutory review of the district court’s disposition of a plea to the
jurisdiction. Trial courts may, but need not, grant a motion for findings and conclusions in
support of an interlocutory order. See Humble Expl. Co. v. Fairway Land Co.,
641 S.W.2d 934
,
937 (Tex. App.—Dallas 1982, writ ref’d n.r.e); Bailey Empl’t Serv., Inc. v. Moore,
638 S.W.2d 641
,
642 (Tex. App.—Waco 1982, no writ). In their argument on this issue, which consists of a
single paragraph, Appellees have not identified any authority supporting the contention that the
district court “should have” rendered findings of fact and conclusions of law. We therefore
overrule the issue.
APA Claims
The Director contends the district court erred by overruling the plea to the
jurisdiction with respect to Appellees’ APA claims, arguing that these claims fail as a matter of
law.3 The APA waives sovereign immunity for parties seeking determination of “[t]he validity
or applicability of a rule . . . if it is alleged that the rule or its threatened application interferes
with or impairs, or threatens to interfere with or impair, a legal right or privilege of the plaintiff.”
3The Director also argues that a rule challenger may only bring an APA claim against
the agency—and not an official. See Tex. Gov’t Code § 2001.038(c). (“The state agency must
be made a party to the action.”). Because these claims fail as a matter of law, we will assume
without deciding that the Director is a proper defendant to a claim brought under the APA.
7
See Tex. Gov’t Code § 2001.038(a), .171. The APA requires notice-and-comment promulgation
of any agency rule. See
id. § 2001.004.
Rule is defined as:
(A) a state agency statement of general applicability that:
(i) implements, interprets, or prescribes law or policy; or
(ii) describes the procedure or practice requirements of a state agency;
(B) includes the amendment or repeal of a prior rule; and
(C) does not include a statement regarding only the internal management or
organization of a state agency and not affecting private rights or procedures.
See
id. § 2001.003(6).
This definition is drafted “in a way that will exclude a considerable range
of unofficial, individually directed, tentative, or other non-proscriptive agency or staff issuances
concerning law or policy.” Teladoc, Inc. v. Texas Med. Bd.,
453 S.W.3d 606
, 622 (Tex. App.—
Austin 2014, pet. denied).
Appellees challenge a variety of rules and policies that we will group into three
categories for discussion. First, Appellees challenge certain “unwritten rules” that the Office
allegedly uses to operate the Center, arguing that the Office or its Director must promulgate these
policies under the APA. See Tex. Gov’t Code §§ 2001.021–.041 (setting forth promulgation
requirements). Second, Appellees contest promulgated rules that allegedly “merely restate[] a
provision” of the statute itself, arguing that those rules are invalid. See
id. § 2001.038(a).
Third,
they challenge promulgated rules that they allege violate or impair existing legal rights.4 We will
address these challenges in turn.
4 See Tex. Gov’t Code § 2001.038(a). Appellees challenge all rules promulgated under
the statute, arguing that the Director impermissibly allowed the Office’s board of directors,
rather than the Office itself, to promulgate the rules. But the Legislature vested governance of
8
“Unwritten Rules”
Appellees first complain of certain policies and procedures, which they refer to as
“unwritten rules,” that they allege the Office, its Director, and Correct Care use as part of the
tiered-treatment program and that they maintain must be promulgated pursuant to the APA’s
notice-and-comment requirements. The challenged policies and procedures include:
• that the Office has “surrender[ed]” to Correct Care “unbridled authority
over all aspects of the [Appellees’] existence,” including the “unbridled
authority to adopt, enforce, and change, without notice, rules for which
[Appellees] can be disciplined”;
• that the Office includes “all money and property (except hand-me-down
clothing or used books) that a[n Appellee] receives” as income when
calculating the required contribution to the cost of treatment; and
• that the Office allows Correct Care “to deprive [Appellees] of medical
care.”
None of these allegations gives rise to a viable APA claim.
With respect to the first complaint, Appellees allege that this “unwritten rule” was
not validly promulgated. But the Office in fact promulgated a rule regarding the outsourcing of
treatment, see 37 Tex. Admin. Code § 810.153(3) (2018) (Tex. Civil Commitment Office5)
(Tiered Treatment and Supervision Program) (“The [O]ffice shall enter into appropriate contracts
or memoranda of understanding for the provision of any necessary supervised housing and other
related services.”), and Appellees have not alleged any anomalies in that promulgation.
the Office in “a board composed of five members,” see Tex. Gov’t Code § 420A.002(b), and
Appellees have waived this argument on appeal by failing to provide any supporting law or
otherwise explain how the board of directors lacks the statutory authority to promulgate rules on
behalf of the Office, see Tex. R. App. P. 38.1; 38.2.
5 Unless otherwise indicated, all cited rules were proposed and promulgated by the Texas
Civil Commitment Office.
9
The second challenged “unwritten rule” is the Office’s alleged policy of including
the value of any gifts or new merchandise received by an Appellee as “income” when calculating
the amount of money he must contribute toward the cost of housing and treatment. As
evidence, Appellees produced the following email sent from a civil commitment manager to
case managers:
Subject: Enforcement of policy concerning packages and cost recovery
It has come to our attention that SVP Clients[6] are utilizing their package
allowances and family packages to circumvent cost recovery requirements and are
receiving hundreds of dollars of goods from vendors through their family. Going
forward, all packages require the approval of the case manager prior to their
release to the SVP Client. Clients seeking a vendor package to be ordered for
them by family members must provide a cost list to the case manager prior to the
package being ordered. Upon receipt of the gift package, the packing slip must be
provided to the Case Manager to verify that the items in the package are those that
were approved and that the client is current on cost recovery to include 33% of
the value of the gift being received. The 33% does not include items such as hand
me down clothing or books sent directly from an approved contact within
property allowances and tiered housing policy. Packages being ordered by a SVP
client, current on his cost recovery, using his resident account funds from a
vendor will continue to be handled in the same manner as they have been.
Appellees contend this cost-recovery policy constitutes an ad hoc rule, but “an informal agency
statement that merely restates formally promulgated rules” does not give rise to an APA claim.
LMV-AL Ventures, LLC v. Texas Dep’t of Aging & Disability Servs.,
520 S.W.3d 113
, 121 (Tex.
App.—Austin 2017, pet. denied) (quoting Texas Dep’t of Transp. v. Sunset Transp., Inc.,
357 S.W.3d 691
, 703 (Tex. App.—Austin 2011, no pet.)); see also
Teladoc, 453 S.W.3d at 614
–
22; Texas State Bd. of Pharmacy v. Witcher,
447 S.W.3d 520
, 533–34 (Tex. App.—Austin 2014,
pet. denied); Brinkley v. Texas Lottery Comm’n,
986 S.W.2d 764
, 769–71 (Tex. App.—Austin
6 The Office and Correct Care refer to individuals undergoing treatment at the Center as
their “clients” or “residents.” All spelling, grammar, and punctuation reflect those in the email.
10
1999, no pet.). The announcement in the manager’s email does not give rise to an APA claim
because it merely reflects a policy the Director promulgated through notice-and-comment
rulemaking. See 42 Tex. Reg. 7565, 7566 (2017) (codified at 37 Tex. Admin. Code § 810.122)
(proposed Dec. 29, 2017) (definitions); Texas Dep’t of Transp. v. Texas Weekly Advocate,
No. 03-09-00159-CV,
2010 WL 323075
, at *2 (Tex. App.—Austin Jan. 29, 2010, no pet.) (mem.
op.) (rejecting an ad-hoc-rulemaking challenge to agency policy where agency had adopted that
policy pursuant to APA’s promulgation procedures);
LMV-AL, 520 S.W.3d at 122
.
The statute requires that all individuals adjudicated as sexually violent predators
initially undergo inpatient treatment and provides, “[A] civilly committed person who is not
indigent is responsible for the cost of housing and treatment.” See Tex. Health & Safety Code
§ 841.084 (punctuation revised). In accordance with that statutory requirement, the Office
promulgated a rule indicating that it would “set forth the method of payment for the cost
recovery” but would not require “payment in an amount that exceeds 50% of the income of the
committed person or the actual cost of the service.” See 37 Tex. Admin. Code § 810.273. The
Office promulgated a separate rule providing, “For the purpose of recovery of costs . . . a
sexually violent predator is considered to be indigent if the sexually violent predator does not
have any income” and then defined income to include “wages, salaries, tips, and other taxable
employee pay, disability benefits, net earnings from self-employment, funds received from the
sale of property, funds received as an inheritance, interest or dividend income, retirement
income, social security income, unemployment benefits, and gifts.” See
id. § 810.122
(emphasis
added). Thus, the email simply reflects the Office’s decision to interpret the statutory reference
to “income” as including the value of any gifts received—whether directly from family or from
an online vendor—in the calculation of monthly income. Because the statements in the email
11
summarize the substance of the rule promulgated, they do not generate a fact issue sufficient to
establish jurisdiction under the APA. See Texas Food Indus. Ass’n v. U.S. Dep’t of Agric.,
81 F.3d 578
, 579 (5th Cir. 1996); Texas Parks & Wildlife Dep’t v. Texas Ass’n of Bass Clubs,
622 S.W.2d 594
, 596 (Tex. App.—Austin 1981, writ ref’d n.r.e.).
With respect to the third complaint—that the Office uses an unpromulgated rule
to systematically deprive Appellees of medical care—Appellees have not produced any evidence
the alleged “rule” exists. To the contrary, the statute requires the Office to provide medical care,
see Tex. Health & Safety Code § 841.083(d), and the Director’s affidavit indicates that
Appellees “have access to medical care at the facility and [will] be referred outside the facility
for any specialist or emergency care that cannot be handled at the facility.” Appellees have not
alleged any incidents or otherwise identified any “unwritten rule” to the contrary. Without an
alleged rule to challenge, Appellees cannot establish the district court’s jurisdiction under
Section 2001.038 the APA. See Texas Dep’t of Pub. Safety v. Salazar,
304 S.W.3d 896
, 905
(Tex. App.—Austin 2009, no pet.).
Regulations that “Merely Restate the Provisions” of the Statute
Appellees contend that Rules 810.151 and 810.153 “do[] not meet the definition
of a rule[,] as [they] merely restate[] a provision of Health and Safety Code Chapter 841,” and
that the Director therefore violated the APA in promulgating and enforcing those rules. See,
respectively, 37 Tex. Admin. Code §§ 810.151 (Administration of the Act), .153 (Tiered
Treatment and Supervision Program). Rule 810.151 requires the Office to “provid[e] appropriate
and necessary treatment” and to “hire or contract for the services of” appropriate professionals.
See 37 Tex. Admin. Code § 810.151. This language is similar to that found in Section 841.007 of
12
the statute. See Tex. Health & Safety Code § 841.007(1). Rule 810.153 requires the Office to
“develop a tiered program policy for the supervision and treatment of a committed person” and
to “provide for the seamless transition of a committed person from a total confinement facility to
less restrictive housing and supervision . . . .” See 37 Tex. Admin. Code § 810.153(1). These
provisions track language found in Section 841.0831 of the statute. See Tex. Health & Safety
Code § 841.0831(b).
Appellees provide no authority for their assertion that a regulation that tracks
statutory language cannot satisfy the requirements of the APA. Nor could they cite such
authority. As this Court has explained, where a rule “merely restates the unambiguous meaning
of a preexisting rule or statute,” any “claims under Section 2001.038 are barred by sovereign
immunity.” Texas Alcoholic Beverage Comm’n v. D. Hous., Inc., No. 03-13-00327-CV,
2017 WL 2333272
, at *3 (Tex. App.— May 25, 2017, pet. denied) (mem. op.) (citing
LMV-AL, 520 S.W.3d at 125
; Sunset
Transp., 357 S.W.3d at 704
); see also Texas Dep’t of Transp.
v. Sefzik,
355 S.W.3d 618
, 622 (Tex. 2011) (holding that “section 2001.038 does not carry
[plaintiff’s] claim over the hurdle of sovereign immunity” when plaintiff challenges procedures
established by statute). Because these arguments fail as a matter of law, the Director retains
immunity from suit with respect to this claim. See Transformative Learning Sys. v. Texas Educ.
Agency,
572 S.W.3d 281
, 293 (Tex. App.—Austin 2018, no pet.).
Regulations that Violate Existing Legal Rights
Appellees contend the district court has jurisdiction under the APA because the
tiered-treatment regulations interfere with existing legal rights. See Tex. Gov’t Code
§ 2001.038. Specifically, Appellees allege that Rules 810.153 and 810.273 violate their alleged
13
right to outpatient treatment, their First Amendment rights to freedom of assembly and
expression, and their constitutional rights to due process and due course of law. See 37 Tex.
Admin. Code § 810.153 (Tiered Treatment and Supervision Program), .273 (Cost of Housing
Treatment, and Tracking Services). Although Appellees’ briefing on these claims does not
comply with appellate briefing standards, see Tex. R. App. P. 38.1, 38.2(a)(1), we will address
the arguments preserved at the district court and presented on appeal to the extent we can
construe them.
Appellees contend that by requiring “total confinement” via inpatient treatment at
the Center, rather than outpatient treatment at a “halfway house,” Rule 810.153 infringes on an
allegedly vested right to outpatient treatment. That rule requires “the seamless transition of a
committed person from a total confinement facility to less restrictive housing and
supervision . . . . ” See 37 Tex. Admin. Code. § 810.153(1). The source of the alleged right to
outpatient treatment is not clear from Appellees’ briefing. Appellees have already stipulated that
they no longer challenge the 2015 orders recommitting them under the amended version of the
statute. Specifically, they aver, “Plaintiffs do not challenge the judgment ordering them into
Chapter 841 commitment, the Orders of Commitment or the orders placing them in the tiered
treatment [sic] program.” Moreover, federal and state courts have already rejected the notion of
a general constitutional, statutory, or common law right to outpatient civil commitment. See Hitt
v. McLane, No. A-17-CV-289-SS,
2018 WL 773992
, at *14 (W.D. Tex. Feb. 7, 2018) (gathering
authorities from the Supreme Court of the United States before rejecting challenge to 2015
amendments to this statute); Richards v. Taylor, No. CIV.A. H-13-1394,
2015 WL 5310853
, at
*2 (S.D. Tex. Sept. 11, 2015) (rejecting challenge to transition to tiered treatment by explaining,
“[M]odification of the terms of an SVP’s commitment order is consistent with the proviso
14
already a part of the [pre-amendment] statute that authorized modifications as part of the
biennial review process.” (citing Tex. Health & Safety Code § 841.102(c)(1))); In re Brown,
No. 09-18-00428-CV,
2018 WL 6369713
, at *1 (Tex. App.—Beaumont Dec. 6, 2018, no pet.)
(mem. op.) (rejecting similar argument before denying mandamus relief).
Appellees further allege that Rule 810.153 and other regulations infringe on their
rights to assembly and expression as set forth in the United States and Texas constitutions.7 The
First Amendment to the United States Constitution guarantees that “Congress shall make no law
respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the
freedom of speech, or of the press; or the right of the people peaceably to assemble, and to
petition the Government for a redress of grievances.” U.S. Const. amend. I. The prohibition on
any interference with these rights was extended to state governments via incorporation through
the Fourteenth Amendment, and the Texas Constitution independently affords similar protections
to all Texans. See
id. amend. XIV;
Tex. Const. art. I, §§ 8, 27. Appellees allege that the Rule’s
requirement of “total confinement” interferes with these rights by preventing them from
interacting with friends and family, restricting certain speech, and precluding free movement
within the community. But as the Fifth Circuit has explained, in the context of involuntary civil
commitment, First Amendment restrictions “are permissible so long as they advance the state’s
7 Appellees’ live petition also alleges that this rule interferes with their right to vote, see
U.S. Const. amends. XIV, XXIV; Tex. Const. art. VI, §§ 1–2, and Tex. Elec. Code
§ 11.002(a)(4), but Appellees have not briefed this Court on the allegation. We therefore do not
reach that issue. Tex. R. App. P. 38.1, 38.2; see also Texas Med. Ass’n v. Texas Workers Comp.
Comm’n,
137 S.W.3d 342
, 351 (Tex. App.—Austin 2004, no pet.) (“All waivable errors not
included in the original appellate brief are waived and present nothing for review.” (referring to
constitutional arguments raised below but not included in appellate briefing)); cf. Matzen
v. McLane, 764 F. App’x 402, 402–03 (5th Cir. 2019) (observing, before affirming Rule 12(b)(6)
dismissal of First Amendment challenge to inpatient treatment, that individual confined at Texas
Civil Commitment Center had voted in 2016 general election).
15
interest in security, order, or rehabilitation.” Bohannan v. Doe, 527 F. App’x 283, 294 (5th Cir.
2013); see also Matzen v. McLane, 764 F. App’x 402, 402–03 (5th Cir. 2019) (rejecting First
Amendment challenge to the same statutory scheme at issue here); Hitt,
2018 WL 773992
, at *17
(rejecting First Amendment challenge to earlier version of statute). Any rational relation to the
state’s interest suffices to justify the challenged regulation. See Bohannan, 527 F. App’x at 294.
Here, Appellees do not explain how the Center’s inpatient treatment and associated restrictions
are unrelated to the state’s interest in security, order, and rehabilitation. Because conclusory
allegations are not sufficient to overcome sovereign immunity, see City of El Paso v. Collins,
440 S.W.3d 879
, 886 (Tex. App.—El Paso 2013, no pet.); Wise Reg’l Health Sys. v. Brittain,
268 S.W.3d 799
, 808 (Tex. App.—Fort Worth 2008, no pet.), on this record Appellees cannot
establish the district court’s jurisdiction over a claim that the tiered-treatment regulations impair
First Amendment rights.
For similar reasons, Appellees’ claim that Rules 810.153 and 810.273 interfere
with their rights to due process and due course of law also fails. The United States Constitution
provides that no state shall “deprive any person of life, liberty, or property, without due process
of law.” U.S. Const. amend. XIV. The Texas Constitution guarantees that “[n]o citizen of this
State shall be deprived of life, liberty, property, privileges or immunities, or in any manner
disfranchised, except by the due course of the law of the land.” Tex. Const. art. 1, § 19.
“Though textually different, Texas courts generally construe the due course of law provision in
the same manner as its federal counterpart, the Due Process Clause.” Lakey v. Taylor,
435 S.W.3d 309
, 317 (Tex. App.—Austin 2014, no pet.) (citing Texas Workers’ Comp. Comm’n
v. Patient Advocates,
136 S.W.3d 643
, 658 (Tex. 2004)). “Where, as here, the parties have not
argued that differences in state and federal constitutional guarantees are material to the case, and
16
none is apparent, we limit our analysis to the United States Constitution and assume that its
concerns are congruent with those of the Texas Constitution.” In re Commitment of Fisher,
164 S.W.3d 637
, 645 (Tex. 2005) (citing New Times, Inc. v. Isaacks,
146 S.W.3d 144
, 150
(Tex. 2004)).
The right to due process includes both procedural and substantive components.
“Procedural due process involves the preservation of both the appearance and reality of fairness
so that ‘no person will be deprived of his interests in the absence of a proceeding in which he
may present his case with assurance that the arbiter is not predisposed against him.’” Pickell
v. Brooks,
846 S.W.2d 421
, 426 (Tex. App.—Austin 1992, writ denied) (quoting Marshall
v. Jerrico, Inc.,
446 U.S. 238
, 242 (1980)). “Procedural due process expresses the fundamental
idea that people, as opposed to things, at least are entitled to be consulted about what is done to
them.”
Id. (citing Laurence
H. Tribe, American Constitutional Law § 10–7, at 666 (2d ed.
1988)). In several of the nine iterations of their petition for relief, Appellees challenged the 2015
hearings that resulted in their transfer to tiered treatment under the amended version of the
statute, arguing that they had not been afforded due process in those proceedings. Cf. In re
Commitment of May,
500 S.W.3d 515
, 526 (Tex. App.—Beaumont 2016, pet. denied) (rejecting
procedural challenge to similar recommitment hearing). As noted above, Appellees have now
expressly abandoned any challenge to those 2015 commitment orders, and Appellees have not
articulated any other procedural due process argument. Thus, looking to the allegations, the
record, and the pleaders’ intent, see
Miranda, 133 S.W.3d at 226
–28, we conclude the district
court did not err in sustaining the plea with respect to any procedural due process claim.
Appellees’ substantive due process theory is not entirely clear. They complain of
the statutory and regulatory requirement that sexually violent predators contribute to the cost of
17
housing and treatment, see 37 Tex. Admin. Code § 810.273; the agency’s definition of
indigency, see
id. § 810.122
(6); and an alleged disciplinary policy providing that individuals who
refuse to comply with cost-recovery requirements will not progress to less restrictive tiers of
confinement. Appellees fear that the Director might use these rules and policies to unlawfully
“extort payment” from indigent individuals or to transfer someone from less restrictive to more
restrictive supervision if he refuses to allow this “extortion.” Yet this kind of speculation is not
sufficient to establish the district court’s jurisdiction over the claim, as Texas courts have no
“jurisdiction to pass upon hypothetical or contingent situations, or to determine questions not
then essential to the decision of an actual controversy.” See Trinity Settlement Servs., LLC
v. Texas State Sec. Bd.,
417 S.W.3d 494
, 505 (Tex. App.—Austin 2013, pet. denied) (affirming
district court’s dismissal of APA challenge to agency’s possible rule interpretation based on
“hypothetical facts” (citing Bexar Metro. Water Dist. v. City of Bulverde,
234 S.W.3d 126
, 130–
31 (Tex. App.—Austin 2007, no pet.))).
Appellees further allege that by adopting a rule requiring them to remit part of
their monthly income toward the cost of housing and treatment, Rule 810.273—when paired
with the definitions set forth in Rule 810.122 and Office policy—might result in the
unconstitutional deprivation of property. But the Director acknowledges that unless Appellees
receive money or gifts, they are defined as indigent and her case workers may not enforce the
cost-recovery policy against them, and Appellees do not allege that they have or expect to
receive any income or other property that might render them non-indigent and therefore subject
to this policy.8 Thus, because conclusory allegations are insufficient to overcome sovereign
8 We express no opinion on cases in which a sexually violent predator has alleged an
actual or imminent deprivation of property.
18
immunity, and because we must assume administrative agencies intend their rules to be
interpreted and applied constitutionally, see Creedmoor Maha Water Supply Corp. v. Barton
Springs-Edwards Aquifer Conservation Dist.,
784 S.W.2d 79
, 85 (Tex. App.—Austin 1989, writ
denied), we hold that Appellees did not satisfy their burden to establish the district court’s
jurisdiction over this APA claim.
Having concluded that the district court lacked jurisdiction over Appellees’ APA
claims, we sustain the Director’s sole issue on appeal. We reverse the part of the district court’s
order overruling the plea to the jurisdiction with respect to those claims.
Ultra Vires Claims
Appellees challenge the district court’s dismissal of their ultra vires claims. A
government official’s conduct is ultra vires when “he exceeds the bounds of his granted authority
or if his acts conflict with the law itself.” See Houston Belt & Terminal Ry. v. City of Houston,
487 S.W.3d 154
, 158 (Tex. 2016). “[S]uits to require state officials to comply with statutory or
constitutional provisions are not prohibited by sovereign immunity, even if a declaration to that
effect compels the payment of money.”
Heinrich, 284 S.W.3d at 372
. “To fall within this ultra
vires exception, a suit must not complain of a government officer’s exercise of discretion, but
rather must allege, and ultimately prove, that the officer acted without legal authority or failed to
perform a purely ministerial act.” See
id. A court
has no jurisdiction over an ultra vires claim
that fails as a matter of law. Hall v. McRaven,
504 S.W.3d 414
, 419–20 (Tex. App.—Austin
2016), aff’d,
508 S.W.3d 232
(Tex. 2017).
Appellees’ live petition includes ten enumerated paragraphs outlining dozens of
ostensibly ultra vires acts by the Director. Many of these allegations involve breaches of the
19
same alleged ministerial duties. Generally speaking, Appellees allege that the Director engaged
in ultra vires conduct by:
• failing to promulgate rules on certain subjects;
• allowing the Office’s board of directors to promulgate the rules necessary to
administer the statute;
• denying Appellees adequate medical treatment;
• requiring Appellees to undergo inpatient treatment instead of outpatient
treatment;
• threatening to recover certain sums or property from Appellees to defray the
cost of treatment and housing; and
• interfering with their First Amendment rights to public assembly and personal
expression.
To the extent Appellees intended to raise other allegations in support of an ultra vires theory, we
hold those arguments waived as unpreserved or inadequately briefed. See Tex. R. App. P. 33.1,
38.1, 38.2.
With respect to the allegation that the statute requires the promulgation of certain
rules that were never promulgated, Appellees have not identified any subject that should have
been addressed by rule but was not. See Pharmserv, Inc. v. Texas Health & Human Servs.
Comm’n, No. 03-13-00526-CV,
2015 WL 1612006
, at *7 (Tex. App.—Austin Apr. 9, 2015, no
pet.) (mem. op.) (holding, inter alia, that the plaintiffs had not alleged the violation of any
ministerial duty that might give rise to an ultra vires claim arising from Health and Human
Service Commissioner’s decision not to promulgate certain rules). The Legislature set forth the
Office’s rulemaking authority and obligations in the Office’s organic statute:
20
The office shall adopt rules to:
(1) develop standards of care and case management for persons committed under
this chapter;
(2) determine the conditions of supervision and treatment of a committed person;
and
(3) develop and implement the tiered program described by Section 841.0831,
including rules regarding a committed person’s transition between
programming tiers.
See Tex. Health & Safety Code § 841.141(b) (West 2016), repealed by Act of May 18, 2017,
85th Leg., R.S., ch. 34, § 40, 2017 Tex. Gen. Laws 72, 86. And more generally, all agencies
must promulgate any “statement of general applicability” that “implements, interprets, or
prescribes law or policy” affecting private rights or interests. See Tex. Gov’t Code
§ 2001.003(6). The Director and the Office began promulgating the rules required by Section
841.141 of the Health and Safety Code shortly after the amended statute took effect and adopted
those regulations in 2018. See 42 Tex. Reg. 7565, 7566 (2017) (codified at 37 Tex. Admin.
Code § 810.122) (proposed Dec. 29, 2017). Because Appellees have not explained how the
Director failed to perform a ministerial act in the promulgation of the agency’s rules, Appellees
cannot establish the district court’s jurisdiction over their ultra vires claim.
We need not address Appellees’ remaining ultra vires theories, as we rejected
each of these arguments in our foregoing analysis of Appellees’ claims under the APA. In
absence of a viable ultra vires theory, Appellees have not met their burden to establish the
district court’s jurisdiction over the ultra vires claims, and the district court did not err in
sustaining the Director’s plea to the jurisdiction with respect to these claims. See
Heinrich, 284 S.W.3d at 372
;
McRaven, 504 S.W.3d at 419
–20. We overrule the issue.
21
Repleading
Having concluded that Appellees failed to establish the district court’s jurisdiction
over the claims against the Director, we turn to the only remaining question before this Court:
whether the district court should afford Appellees an opportunity to amend their petition to plead
new claims against the director. “[A] plaintiff must be given ‘“a reasonable opportunity to
amend” his pleadings to attempt to cure the jurisdictional defects found’ unless the pleadings are
incurably defective.”
Koseoglu, 233 S.W.3d at 839
(quoting Texas A&M Univ. Sys. v. Koseoglu,
167 S.W.3d 374
, 383 (Tex. App.—Waco 2005, pet. granted), and citing Harris County v. Sykes,
136 S.W.3d 635
, 639 (Tex. 2004), and Texas Dep’t of Transp. v. Ramirez,
74 S.W.3d 864
, 867–
68 (Tex. 2002)). This opportunity is afforded “only if it is possible to cure the pleading defect.”
Id. at 840.
“[T]he right to amend typically arises when the pleadings fail to allege enough
jurisdictional facts to demonstrate the trial court’s jurisdiction.”
Ramirez, 74 S.W.3d at 867
; see
also Clint Indep. Sch. Dist. v. Marquez,
487 S.W.3d 538
, 559 (Tex. 2016) (dismissing rather than
remanding for repleading where party failed to establish jurisdiction after pleading all
jurisdictional facts but asked for remand “to plead new claims” in an attempt to establish the
district court’s jurisdiction over the dispute). In this case, Appellees have amended their petition
eight times to include myriad factual allegations. Even after eight amendments, the alleged facts,
when viewed in light of relevant precedent, give rise to no viable claim against the Director.
Thus, in this case, as in Marquez, “the jurisdictional bar arises not from a lack of factual
allegations but from the nature of the [plaintiffs’] claims.”
Marquez, 487 S.W.3d at 559
.
Because the record and governing law negate the existence of the district court’s jurisdiction
over the dispute, “remanding the cause to the trial court will serve no legitimate purpose,”
22
Koseoglu, 233 S.W.3d at 846
, and we must render judgment dismissing Appellees’ claims
against McLane, see id.;
Marquez, 487 S.W.3d at 559
–60.
CONCLUSION
Even reviewing this record in the light most favorable to Appellees,
Miranda, 133 S.W.3d at 226
, we conclude they have not established the district court’s jurisdiction over
their claims against the Director. Thus, and for the reasons stated herein, we reverse the district
court’s order to the extent it overrules the Director’s plea to the jurisdiction as to Appellees’
APA claim against her and affirm the district’s court order in all other respects. We render
judgment dismissing the claims against McLane.
__________________________________________
Edward Smith, Justice
Before Justices Goodwin, Baker, and Smith
Concurring Opinion by Justice Goodwin
Affirmed in Part; Reversed and Rendered in Part
Filed: March 6, 2020
23 |
4,490,040 | 2020-01-17 22:02:09.834799+00 | Sterniiagen | null | *422OPINION.
SteRNIiagen:
It is not clear from the original and amended pleadings or from the petitioner’s brief just what the issues are as finally submitted for decision. We have interpreted them to be the following and dispose of them accordingly.
1. The respondent has added to petitioner’s gross income an item of $102,019.52 designated in the notice of deficiency as “Profit on Exchange.” This is the amount described in section 13 of the stipulation of facts. It results from converting the proceeds in dollars of matured loans into guilders, subtracting therefrom the number of guilders originally represented by the loan, converting the remaining guilders into dollars and treating the amount as gain. This was in our opinion error. The original loans amounted to $445,000 and this was the amount repaid. To this extent there was neither gain nor loss. Dollars were loaned and dollars were repaid and at that time the gain or loss appeared. It will not do to whipsaw the taxpayer by computing the original loan in dollars when guilders were high and then using the depreciated guilder at the time of repayment to find a gain. The fact that when repaid the *423$445,000 could buy more guilders in 1920 than in the earlier years of loan is no more significant than if more commodities could be bought with it. The measure of income is the United States dollar and not the foreign money which at a given time it may be used to buy.
2. The respondent added to petitioner’s income $10,317, designated as ££ Profit on debenture notes.” This is the item covered by section 11 of the stipulation. Although the facts are not complete or the meaning of the stipulated section entirely clear, it appears from the briefs that the issue is whether the difference of $10,317 between the face value of debentures originally issued by petitioner at par and the lower prices paid by petitioner in their repurchase in 1920 is income in 1920.
Following National Sugar Manufacturing Co., 7 B. T. A. 577, the Board holds that the amount is not income and that respondent erred in treating it as if it were.
3. From the foregoing it appears that instead of gross income of $370,994.68, as determined by respondent, the gross income from all sources is $258,658.16, of which $255,364.54 was from sources within the United States and $3,293.62 was from sources without the United States. (In the state of the record, we will not undertake to account for inconsequential discrepancies appearing in the stipulation.)
In accordance with Bevenue Act of 1918, section 234(b), petitioner is entitled to deductions “ to the extent that they are connected with income arising from a source within the United States; and the proper apportionment and allocation of the deductions with respect to sources of income within and without the United States shall be determined under rules and regulations prescribed by the Commissioner with the approval of.the Secretary.” The respondent, purporting to act under this section, prorated the expenses shown by section 6 of the stipulation on a percentage basis, treating the foregoing two items of $102,019.52 and $10,317 as foreign income. Since by our decision these items are eliminated from the gross income, it would appear that satisfactory adjustment can be made by the parties of the deductions, and we therefore omit this from present consideration.
The question of special assessment has been expressly reserved under Buie 62 for further hearing. In the event further hearing is necessary the proceeding will be placed on the day calendar upon motion. |
4,490,044 | 2020-01-17 22:02:09.95255+00 | Black | null | *431OPINION.
Black :
The petitioner bases its claim for the deduction of $10,000 as a loss upon section 234 (a) (4) of the Revenue Act of 1918. This section provides that in computing net income there shall be allowed as a deduction “losses sustained during the taxable year and not compensated for by insurance or otherwise if incurred in trade or business.” The respondent has denied the claim upon the ground that it is not deductible as a loss under the provisions of the revenue act above cited.
In the concluding paragraph of article 142 of Regulations 45, relating to the income tax, war-profits and excess-profits tax under the Revenue Act of 1918, on page 64, the Commissioner of Internal Revenue says:
When a taxpayer buys real estate upo-n which is located a building which he proceeds to raze with a view to erecting thereon another building, it will be considered that the taxpayer has sustained no deductible loss by reason of the demolition of the old building and no deductible expense on account of the cost of such removal, the value of the real estate, exclusive of old improvements, being presumably equal to the purchase price of the land and building plus the cost of removing the useless building.
We think the above cited regulation sets forth a sound rule, but whether or not a loss is sustained by a taxpayer as a result of the demolition of the whole or part of the building must be decided in light of the facts in any given case, and any presumption arising from the acts of the taxpayer in proceeding to raze the building and erecting a new one, that taxpayer sustained no deductible loss, is rebutted by showing that the purpose of taxpayer in so purchasing the building was with a view of the actual use of a part of the building and for a fixed and definite purpose and that he was not able so to use it because of latent defects which were not discovered at the time of purchase. Our opinion is that the facts in this case show that the petitioner purchased the property in question with the full intent of using a part of the building in the remodeled structure which it intended to use as a location for its business, and that the portion which petitioner so intended to use was of the value of $10,000 for such use, and that the necessary demolition of such part resulted in a loss to taxpayer in 1920 of said $10,000, except $1,750, which was the value of the foundation of the old building which he used and the material which he was able to salvage. There is some testimony in the record that the cost of tearing down the portion of the building which it was not intended to tear down at the time it was purchased was equal to the cost of the foundation saved and the value of the material salvaged, but we find that the evidence offered in this respect is not sufficient to establish that contention.
*432Our conclusion follows that petitioner did sustain a loss in the taxable year 1920 amounting to $8,250 and that such loss is deductible under section 234 (a) (4) of the Revenue Act of 1918. Winter Garden,, Inc., 10 B. T. A. 71; Southern Amusement Co., 14 B. T. A. 300; Arthur H. Ingle, 1 B. T. A. 595; Multibestos Co., 6 B. T. A. 1060; First National Bank of Evanston, Wyo., 1 B. T. A. 9.
Judgment will be entered under Rule 50. |
4,639,321 | 2020-12-03 20:08:41.109585+00 | null | http://www.courts.state.ny.us/reporter/3dseries/2020/2020_07296.htm | People v Reyes (2020 NY Slip Op 07296)
People v Reyes
2020 NY Slip Op 07296
Decided on December 03, 2020
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided and Entered: December 03, 2020
Before: Friedman, J.P., Kapnick, Gische, Kern, Shulman, JJ.
Ind No. 2301/14 2301/14 Appeal No. 12548 Case No. 2019-5657
[*1]The People of the State of New York, Respondent,
v
Eric Reyes, Defendant-Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Arielle Reid of counsel), for appellant.
Darcel D. Clark, District Attorney, Bronx (Julia L. Chariott of counsel), for respondent.
Judgment, Supreme Court, Bronx County (April A. Newbauer, J.), rendered October 21, 2016, convicting defendant, after a jury trial, of assault in the first degree, and sentencing him to a term of seven years, unanimously affirmed.
The verdict was not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348-349 [2007]). There is no basis for disturbing the jury's credibility determinations, including those relating to the victim's description of his medical condition over the period from the incident to the time of the trial.
The element of serious physical injury was established by evidence that the victim [*2]sustained a blowout fracture of his orbital lobe. This caused his right eye to swell shut, requiring corrective surgery, and leaving the victim with protracted impairment, which was ongoing at the time of the trial (see People v Joco, 83 AD3d 608 [1st Dept 2009]). The jury could have reasonably concluded, from all the evidence presented, that the victim's surgery was unsuccessful in preventing long term vision problems, and that those problems were caused by, and were a foreseeable result of, the attack (see People v DaCosta, 6 NY3d 181, 184 [2006]).
Defendant's intent to cause serious physical injury was readily inferable from his conduct (see generally People v Getch, 50 NY2d 456, 465 [1980]), which included punching the victim in the face and kicking him in the head.
We perceive no basis for reducing the sentence.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: December 3, 2020 |
4,639,322 | 2020-12-03 20:08:41.409836+00 | null | http://www.courts.state.ny.us/reporter/3dseries/2020/2020_07301.htm | People v Ramirez (2020 NY Slip Op 07301)
People v Ramirez
2020 NY Slip Op 07301
Decided on December 03, 2020
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided and Entered: December 03, 2020
Before: Renwick, J.P., Manzanet-Daniels, Mazzarelli, Singh, Scarpulla, JJ.
Ind No. 3031/16, 3483/16 Appeal No. 12532 Case No. 2018-2206
[*1]The People of the State of New York, Respondent,
v
Justin Ramirez, Defendant-Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Gilbert Zelaya of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Michael J. Yetter of counsel), for respondent.
An appeal having been taken to this Court by the above-named appellant from a judgment of the Supreme Court, New York County (Patrick J. McGrath, J.), rendered December 21, 2017,
Said appeal having been argued by counsel for the respective parties, due deliberation having been had thereon, and finding the sentence not excessive,
It is unanimously ordered that the judgment so appealed from be and the same is hereby affirmed.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: December 3, 2020
Counsel for appellant is referred to
§ 606.5, Rules of the Appellate Division,
First Department. |
4,639,323 | 2020-12-03 20:08:41.635985+00 | null | http://www.courts.state.ny.us/reporter/3dseries/2020/2020_07293.htm | People v Polanco (2020 NY Slip Op 07293)
People v Polanco
2020 NY Slip Op 07293
Decided on December 03, 2020
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided and Entered: December 03, 2020
Before: Renwick, J.P., Manzanet-Daniels, Mazzarelli, Singh, Scarpulla, JJ.
Ind No. 871/16 871/16 Appeal No. 12526 Case No. 2019-1845
[*1]The People of the State of New York, Respondent,
v
David Polanco, Defendant-Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Mark W. Zeno of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Victoria Muth of counsel), for respondent.
Judgment, Supreme Court, New York County (Ann E. Scherzer, J.), rendered August 15, 2018, convicting defendant, after a jury trial, of assault in the first degree, and two counts of criminal possession of a weapon in the second degree, and sentencing him to an aggregate term of 12 years, unanimously modified, as a matter of discretion in the interest of justice, to the extent of reducing the sentences to concurrent terms of 6 years, 3 ½ years and 3 ½ years, respectively, and otherwise affirmed.
The court properly denied defendant's request for a justification charge. Viewing the evidence, including defendant's testimony and a surveillance videotape of the incident, in the [*2]light most favorable to defendant, we find no reasonable view of the evidence to support such a charge. There was no such view of the evidence that defendant had an objectively reasonable belief that the victim was about to use deadly physical force against defendant or his mother, and that it was necessary for defendant to shoot the victim (see Penal Law § 35.15[1], [2][a]; People v Cox , 92 NY2d 1002, 1004 [1998]; People v Goetz , 68 NY2d 96, 114-15 [1986]).
We find the sentence excessive to the extent indicated.THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: December 3, 2020 |
4,639,324 | 2020-12-03 20:08:41.858219+00 | null | http://www.courts.state.ny.us/reporter/3dseries/2020/2020_07299.htm | People v Norris (2020 NY Slip Op 07299)
People v Norris
2020 NY Slip Op 07299
Decided on December 03, 2020
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided and Entered: December 03, 2020
Before: Renwick, J.P., Manzanet-Daniels, Mazzarelli, Singh, Scarpulla, JJ.
Ind No. 985/14 985/14 Appeal No. 12522 Case No. 2017-02640
[*1]The People of the State of New York, Respondent,
v
Malik Norris, Defendant-Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (John Vang of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Elizabeth T. Schmidt of counsel), for respondent.
Judgment, Supreme Court, New York County (Daniel P. Conviser, J.), rendered March 21, 2017, convicting defendant, upon his plea of guilty, of two counts of assault in the first degree, and sentencing him, as a second violent felony offender, to concurrent terms of 18 years, unanimously affirmed.
Defendant made a valid waiver of his right to appeal. The court's oral colloquy, taken together with a written waiver, established that the waiver was knowing, intelligent and voluntary (see People v Thomas, 34 NY3d 545 [2019], cert denied US, 140 S. Ct. 2634 [2020]; People v Bryant, 28 NY3d 1094, 1096 [2016]).
Regardless of the validity of defendant's waiver of the right to appeal, we perceive no basis for reducing the sentence or remanding for resentencing. Before sentencing, defendant alerted the court that he had not been produced for an interview by the Probation Department (see People v Pinkston, 138 AD3d 431, 432 [1st Dept 2016], lv denied 27 NY3d 1137 [2016]. However, we find that defendant was not prejudiced by the lack of an interview. This was not a case where no presentence report had been prepared at all (see People v Andujar, 110 AD2d 606, 607 [1st Dept 1985]). Moreover, there is no allegation that the report here was so deficient as to be a nullity, and defendant received the precise sentence he was promised (see People v Rosa, 150 AD3d 442 [1st Dept 2017], lv denied 29 NY3d 1094 [2017]).THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: December 3, 2020 |
4,639,326 | 2020-12-03 20:08:42.319774+00 | null | http://www.courts.state.ny.us/reporter/3dseries/2020/2020_07298.htm | People v Lafontant (2020 NY Slip Op 07298)
People v Lafontant
2020 NY Slip Op 07298
Decided on December 03, 2020
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided and Entered: December 03, 2020
Before: Friedman, J.P., Kapnick, Gesmer, Kern, Shulman, JJ.
Ind No. 3042/17 3042/17 Appeal No. 12556 Case No. 2019-3951
[*1]The People of the State of New York, Respondent,
v
Luders Lafontant, Defendant-Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Danielle Krumholz of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Michael J. Yetter of counsel), for respondent.
Judgment, Supreme Court, New York County (Kevin McGrath, Jr., J. at plea; Curtis Farber, J. at sentencing), rendered April 2, 2018, convicting defendant of attempted identity theft in the first degree, and sentencing him, as a second felony offender, to a term of 1½ to 3 years, unanimously affirmed.
Defendant's claim of ineffective assistance of counsel is not reviewable on direct appeal because the existing record does not reveal what advice trial counsel actually gave defendant concerning the immigration consequences of his guilty plea. The existing record shows that, after the plea court made general references to some possible immigration consequences, it [*2]asked if defense counsel had "explained those potential negative immigration consequences" to defendant, and counsel answered "yes, I did, your Honor." Defendant argues that this interchange establishes that his counsel rendered ineffective assistance by misadvising him that there merely was a "potential" for deportation, when in fact deportation was mandatory (see Padilla v Kentucky, 559 U.S. 356 [2010]; People v Pequero, 158 AD3d 421, 422 [1st Dept 2018]). However, counsel did not elaborate on the content of his conversation with defendant, including whether he told defendant that deportation was a "potential" or "mandatory" consequence of his plea. The plea court's yes-or-no question did not call on counsel to volunteer any details of the conversation or clarify what advice he gave. Thus, the record does not establish whether counsel's advice was accurate or inaccurate. "Without further development of the record by way of a CPL 440.10 motion, it cannot be determined exactly what discussions were had with defendant regarding the immigration consequences of his plea" (People v Gomez, 186 AD3d 422, 423 [1st Dept 2020]; see also People v Ramos, 169 AD3d 425 [1st Dept 2019]).
All concur except Gesmer, J. who concurs in a separate memorandum as follows:
GESMER, J. (concurring)
I join the majority in affirming because I am constrained to do so by this Court's decision in People v Gomez (186 AD3d 422 [1st Dept 2020]). However, I continue to believe that was wrongly decided for the reasons stated in my dissent.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: December 3, 2020 |
4,639,327 | 2020-12-03 20:08:42.712417+00 | null | http://www.courts.state.ny.us/reporter/3dseries/2020/2020_07297.htm | People v Guevara (2020 NY Slip Op 07297)
People v Guevara
2020 NY Slip Op 07297
Decided on December 03, 2020
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided and Entered: December 03, 2020
Before: Renwick, J.P., Gesmer, Kern, Singh, JJ.
Index No. 527/12 Appeal No. 12230 Case No. 2017-2006
[*1]The People of the State of New York, Respondent,
v
Jose Guevara, Defendant-Appellant.
Stephen Chu, Interim Attorney-in-Charge, Office of the Appellate Defender, New York (Gabe Newland of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Susan Axelrod of counsel), for respondent.
Judgment, Supreme Court, New York County (Laura A. Ward, J. at suppression hearing; Ruth Pickholz, J. at jury trial and sentencing), rendered June 21, 2016, as amended June 18, 2019, convicting defendant of manslaughter in the first degree, and sentencing him to a term of 20 years, unanimously affirmed.
The court should not have permitted the People to introduce photographs taken by the police of an M9 bayonet that was found in a collection of knives in defendant's bedroom, but was concededly not the weapon used in the crime. The photographs were irrelevant as demonstrative evidence (see People v Acevedo, 40 NY2d 701, 704-705 [1976]), because nothing [*2]in the record provided a basis for the court to conclude that the bayonet in the photographs resembled the weapon that defendant used to stab the victim (see People v Del Vermo, 192 NY 470, 482-483 [1908]). Even assuming that defendant's statement supported the inference that the unrecovered weapon used in the crime was also a bayonet, and that it came from defendant's collection, there was no evidence that all of defendant's bayonets, which could have come from different eras and armed forces, looked like M9s. Nevertheless, we find that the error was harmless (see People v Crimmins, 36 NY2d 230, 237 [1975]). Defendant conceded that he stabbed the victim, causing his death, and the evidence, including expert testimony, overwhelmingly refuted defendant's sole defense, which was that his actions were rendered involuntary by automatism.
The record establishes that defense counsel was denied access to defendant's second psychiatric examination by the People's expert, in violation of defendant's right to have counsel present (CPL 250.10[3]; Matter of Lee v County Ct. of Erie County, 27 NY2d 432, 444 [1971], cert denied 404 U.S. 823 [1971]). Nevertheless, the error was harmless, because defense counsel was provided with a copy of the expert's report and permitted to cross-examine the expert on the stand. In addition, the court permitted defendant's own expert to be present during testimony by the People's expert, and permitted defense counsel to recall him if needed, and defense counsel was able to consult with the defense's expert before commencing cross-examination of the People's expert. Furthermore, nothing in the record indicates that counsel's presence at the psychiatric examination "would have enhanced that cross-examination and in any way affected the outcome" (People v Perkins, 166 AD2d 737, 740 [3d Dept 1990], lv denied 76 NY2d 1023 [1990]). We find unpersuasive defendant's arguments that this type of right to counsel violation automatically requires reversal, or that reversal is required on the particular facts presented.
The court providently exercised its discretion in prohibiting defense counsel from asking the prospective jurors during voir dire whether they could follow the "voluntary act" requirement of Penal Law § 15.10 (see People v Jean, 75 NY2d 744, 745 [1989]; CPL 270.15[1][c]]). Questioning the jury about the voluntariness of defendant's acts would have been premature, because the content of the prospective expert testimony was unclear at that point, and it also could have confused the jury given the lack of context. Further, unlike the situation in People v Miller (28 NY3d 355 [2016]), counsel was able to adequately explore the prospective jurors' views by asking them whether they could keep an open mind that defendant may not have "intended" or had a "conscious awareness" of his acts.
The court's charge thoroughly addressed defendant's automatism defense, and fully explained the requirement of a voluntary act, as set forth in Penal Law § 15.10. Because voluntary action is subsumed within the intent elements of the crimes charged, the court properly declined to instruct the jury that voluntariness is an element of the offenses. Defendant's other challenge to the court's charge is unpreserved and we decline to review it in the interest of justice. As an alternative holding, we reject it on the merits.
The court properly denied defendant's suppression motion. The arresting officer could have reasonably inferred that the security guard who reported the stabbing had a satisfactory basis of knowledge. In addition, the officer's personal observation of defendant standing in a stairwell in a manner suggesting that he was trying to hide corroborated the guard's statement (see People v Elwell, 50 NY2d 231, 237 [1993]).
We perceive no basis for reducing the sentence.
All concur except Gesmer, J. who dissents in a
memorandum as follows:
GESMER, J. (dissent)
I respectfully dissent. I agree with the majority that the trial court erred in admitting into evidence two photographs of a bayonet knife belonging to defendant. However, I disagree with my colleagues that this error did not prejudice defendant. Rather, I conclude that the introduction of the photographs, even though only for demonstrative purposes, denied defendant a fair trial, especially in light of the People's improper comments about them during its summation (see People v Smith, 192 AD2d 394, 395 [1st Dept 1993], lv denied 81 NY2d 1080 [1993]). I would therefore reverse defendant's conviction and remand the matter for a new trial.
On January 2012, defendant was living in a split-level duplex apartment, which he shared with five other people, including his step-brother, Hector Thomas; his step-brother's wife, Yamila Thomas; and Ramon Wolmart, who was Yamila's best friend. In the previous months, tensions had grown between defendant on the one hand, and Hector, Yamila and Ramon on the other hand, over what defendant perceived to be their lack of respect for others in the household.
On January 31, 2012, Yamila was preparing dinner for Hector and Ramon when defendant entered the kitchen. The parties exchanged words, and a fight broke out between defendant and Ramon, which Hector joined in. At some point, defendant fell backwards and hit his head on the bottom step of a staircase. With the scuffle temporarily ceased, defendant got up and went to his bedroom. In a statement written later at the police precinct, he described what happened next:
"When I got away from [Hector and Ramon] I went down the stairs to my room. I went into my dresser-nightstand. And inside the drawer I have these collector types of bayonet knives that I purchased on-line. I grabbed one of the knives. I don't remember which one."
Meanwhile, Yamila, Hector, and Ramon began to leave the apartment. As they stepped into the outside hallway, defendant reappeared with a knife in his hand. Walking past Yamila and Hector, defendant pushed Ramon into the building's stairwell, where he stabbed him twice in the torso, killing him. In a later videotaped statement, defendant said that he swung at Ramon with one of the two knives that he grabbed from his room.
Defendant was arrested soon afterwards.
The police executed a search warrant on defendant's bedroom. They found on top of a dresser a foot-long, black bayonet with the words "M-9 Bayonet" inscribed on it. The police took photographs of the bayonet and, after running tests, determined that it contained no traces of blood or DNA and concluded that it had not been used to stab Ramon. The knife used in Ramon's stabbing was never recovered.
In their case-in-chief, the People presented defendant's written statement, defendant's videotaped statement, two photographs of the M-9 Bayonet knife that was found in defendant's bedroom, and testimony from a Crime Scene Unit detective who testified that the M-9 Bayonet knife was a "a military or survival type knife."
During the People's summation, with the two photographs of the M-9 Bayonet knife on display for the jury, the following colloquy took place:
"Prosecutor: Remember, this is a man who collects bayonets. Take a look at that weapon.
"Counsel:Objection.
"Court:What's your objection?
"Counsel:We had a conference about that.
"Court:That's not the weapon.
"Prosecutor: Right. It's a weapon similar to this, right. He said, "I collect bayonets."
"Counsel: Your Honor, there was no testimony that knife [in the photo] was similar to that.
"Court: [The jury will] decide what the testimony is.
"Prosecutor: You see what's written here [on the bayonet in the photo], it says bayonet. M-9 Bayonet. Okay. This is a man who collects bayonets.
. . .
"Prosecutor: He went and got a bayonet because you know why, there is only one use for a bayonet. Right? You don't spread jelly with a bayonet. You don't open things with a bayonet. A bayonet is designed to kill.
. . .
"Prosecutor: The army doesn't give you weapons to hurt people, right? The military doesn't say, "Here take this knife. You can really hurt guys with this." It's to kill people.
"Counsel: Objection. There's no evidence to—
"Court: It's an argument.
"Counsel: It's got to be based on evidence."
At the conclusion of the trial, the jury acquitted defendant of second-degree murder but convicted him of first-degree manslaughter as a lesser-included offense. In the instant appeal, defendant argues, among other claims, that the introduction of the photographs of the M-9 Bayonet knife outweighed their limited probative value. I agree.
"[W]hile all relevant evidence is admissible unless its admission violates some exclusionary rule, evidence is relevant only if it tends to prove the existence or nonexistence of a material fact directly at issue in the case" (People v Robinson, 143 AD3d 744, 746 [2016], lv denied 28 NY3d 1126 [2016], citing People v Jin Cheng Lin, 26 NY3d 701, 727 [2016]). Trial judges may exclude relevant evidence "'If its probative value is outweighed by certain other [*3]factors such as unfair prejudice, confusion of the issues, or potential to mislead the jury'" (People v Powell, 27 NY3d 523, 530 [2016], quoting Holmes v South Carolina, 547 U.S. 319, 326 [2006]).
Here, the photographs of the M-9 Bayonet knife were completely irrelevant to the charges leveled against defendant and could have been offered for no other purpose than to inflame the jury (see Smith, 192 AD2d at 395; People v Pyne, 223 AD2d 910, 911 [3d Dept 1996], lv denied 88 NY2d 940 [1996]). I reach this conclusion for several reasons. First, the People conceded that the M-9 Bayonet knife was not the murder weapon. Second, and as stated by the majority, there was no evidence that the M-9 Bayonet knife resembled the murder weapon and therefore could not be used as demonstrative evidence. Third, the mere fact that defendant possessed "collector types" of bayonet knives was not probative of his intent to unlawfully use one of them to kill Ramon (see People v Singleton, 139 AD3d 208, 213 [1st Dept 2016]). Lastly, the People have not offered any theory to show that the photographs served to rebut defendant's automatism defense (see generally People v Santarelli, 49 NY2d 241, 248 [1980][when a defendant raises an insanity defense, "evidence of uncharged criminal or immoral conduct may be admitted as part of the People's case on rebuttal if it has a tendency to disprove the defendant's claim"].
Moreover, even if the photographs of the M-9 Bayonet knife had been relevant, the People's comments about them during its summation were so prejudicial as to outweigh any possible relevance.
"It is fundamental that the jury must decide the issues on the evidence, and therefore fundamental that counsel, in summing up, must stay within the four corners of the evidence" (People v Ashwal, 39 NY2d 105, 109 [1976][internal quotation marks omitted]). The summation must be "based on a reasonable inference from the evidence" (People v Donato, 176 AD2d 125, 125 [1st Dept 1991], lv denied 78 NY2d 1127). However, where the summation is in response to a defense counsel's summation, the argument need not be based on the evidence presented (see id.).
Here, the People told the jury in its summation that a bayonet knife is designed to kill people; that killing people is the only use for a bayonet knife; that a bayonet knife is not used to open things; and that the army and military gives out weapons, like bayonet knives, to kill people. None of these statements were elicited during the testimony of any witness or made in response to defense counsel's summation, nor could they have been reasonably inferred from the evidence. Moreover, the defense had no opportunity to cure these prejudicial comments; the court overruled defense counsel's objections, stating that the People's summation was merely "an argument." Finally, given that the voluntariness of defendant's actions was the main issue for the jury to consider, the prosecutor's comments that defendant grabbed his bayonet knife because they are "designed to kill" is clearly reversible error.
As discussed above, the majority holds that the introduction of the photographs of the M-9 Bayonet knife was harmless given the overwhelming evidence of defendant's guilt. While I do not concede that the error, standing alone, was harmless, it is clear that it was significantly compounded by the People's extremely prejudicial comments in its summation (see People v McGhee, 180 AD3d 26, 37 [1st Dept 2019], lv granted, 34 NY3d 1083 [2019]). These cumulative errors deprived defendant of a fair trial, even when weighed against the significant evidence suggesting defendant's guilt. Our courts have long held that "every accused in our criminal justice system, no matter how strong the evidence against him, is entitled to a fair trial, [*4]and that includes having his or her case heard by a jury that finds the facts solely on the evidence, ideally via cool and detached deliberations" (People v Nevedo, 202 AD2d 183, 185 [1st Dept 1994]; see also People v Crimmins, 36 NY2d 230, 238 [1975]["[t]he right to a fair trial is self-standing and proof of guilt, however overwhelming, can never be permitted to negate this right"]). Accordingly, I would reverse defendant's conviction and remand the matter for a new trial.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: December 3, 2020 |
4,639,328 | 2020-12-03 20:08:42.941847+00 | null | http://www.courts.state.ny.us/reporter/3dseries/2020/2020_07294.htm | People v Busgith (2020 NY Slip Op 07294)
People v Busgith
2020 NY Slip Op 07294
Decided on December 03, 2020
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided and Entered: December 03, 2020
Before: Friedman, J.P., Kapnick, Gesmer, Kern, Shulman, JJ.
Ind No. 1434/14,1439/14 1434/14 1439/14 Appeal No. 12551 Case No. 2018-520
[*1]The People of the State of New York, Respondent,
v
Debbie Busgith, Defendant-Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Jan Hoth of counsel), for appellant.
Darcel D. Clark, District Attorney, Bronx (Noah J. Chamoy of counsel), for respondent.
Judgment, Supreme Court, Bronx County (Ralph Fabrizio, J.), rendered May 5, 2017, convicting defendant, after a jury trial, of assault in the second degree and criminal possession of a weapon in the fourth degree, and sentencing her to an aggregate term of 6 months, with 5 years' probation, unanimously affirmed.
The verdict was not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348 [2007]). There is no basis for disturbing the jury's credibility determinations. A videotape of the incident, coupled with other evidence, supports the conclusion that defendant is [*2]the person who stabbed the victim. The physical injury element was met by the victim's substantial pain, which was established by, among other things, his "subjective description of what he felt" (People v Chiddick, 8 NY3d 445, 447 [2007]; see also People v Guidice, 83 NY2d 630, 636-637 [1994]). The victim's hospital treatment immediately after the incident, while not dispositive, is another "indication that his pain was significant" (Chiddick, 8 NY3d at 447).
The People laid a proper foundation to admit post-incident surveillance video footage recorded by cameras installed in an apartment building near the crime scene, by establishing an overlap and consistency between the beginning of that exhibit and an uncontested surveillance video, as well as by presenting testimony from the building's superintendent and the detective who recovered the videos (see People v Patterson, 93 NY2d 80, 84-85 [1999]). In any event, any error in receiving the videotape at issue, which only depicted defendant's later conduct evincing her consciousness of guilt, was harmless (see People v Crimmins, 36 NY2d 230 [1975]).THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: December 3, 2020 |
4,490,085 | 2020-01-17 22:02:11.145392+00 | Smith | null | *569OPINION.
Smith:
The issues before us are (1) the deductibility of commissions paid to branch managers; and (2) the method to be employed in computing taxable net income. With respect to the first issue a great deal of testimony was introduced at the hearing to show that the manager of each branch office was paid a commission upon the net amount of money the petitioner withdrew from that branch office *570during the year; that the percentages paid to the managers of each of nine offices were 5 per cent, to one office 10 per cent, and to another office 20 per cent; that the records kept by the petitioner in the home office, which were introduced in evidence, reflected the withdrawals during the year, and that the managers were paid commissions.
A certified public accountant, appearing as a witness on behalf of the petitioner, testified as to withdrawals made by the petitioner from each of the branch offices. The petitioner testified that no commission was paid upon a withdrawal which represented the return of additional capital temporarily furnished by him to a branch office and that, therefore, the testimony of the accountant might be inaccurate as to the amount of withdrawals. However, an examination of the records which were introduced in evidence, coupled with the uncontradicted testimony of the petitioner relative to the payment of the commissions, convinces us that the petitioner is entitled to deductions for the years 1922 and 1923 on account of commissions paid to branch managers amounting to $3,373.64 and $4,385.25, respectively.
With respect to the second issue we are confronted with a record which, to say the least, is very perplexing and confusing. The petitioner himself testified that he did not know what his income was from interest paid in cash. That the records of the branch offices kept by the petitioner, which were introduced in evidence, are susceptible of almost any interpretation is witnessed by the fact that the record in this proceeding presents for our consideration four possible methods of computing the income of the petitioner’s business, with no guarantee that any of those methods or any other method would properly differentiate between items of principal and interest.
In his return the petitioner considered as income only the amount of cash which he was able to withdraw from the branch offices. The Commissioner has taken the totals of the interest received columns as shown by the records of the petitioner and has deducted therefrom expense items, depreciation, and bad debts. The petitioner claims, and the evidence shows, that the interest received columns in the petitioner’s records can not definitely be said to reflect either interest, principal, or a combination of interest and principal. For this reason petitioner claims that his net income can not be arrived at by the method employed by the respondent. On the other hand, the respondent claims that any error on account of uncollected interest represented by a portion of notes for both principal and interest is taken care of by an allowance for bad debts, which it is noted he has allowed in the sum of $40,585.53 on a gross business of $179,052.07 for the year 1922, the corresponding figures for the year 1923 being $40,521.43 and $198,334.48, respectively.
*571The third method presented for our consideration was that advanced by the petitioner, who now claims that his income consisted of cash withdrawn from the business, plus excess of cash at the end of the year over cash at the beginning of the year minus amounts sent to the branch offices from the home office. This method suggests an alternative method, namely, to consider as income with-diawals during the year plus the difference between the opening and closing cash. With respect to the method now claimed by the petitioner as being the correct one, it should be pointed out that such method does not take care of nor reflect interest received in cash during the year which is put back in the business by the branch manager. To illustrate, the difference between opening and closing cash on hand for any office for any year might be $100, whereas had the balance been struck the day previously it might have been $1,000, or any other amount.
With respect to the books .in their entirety the evidence presented on behalf of the petitioner is uncontradicted to the effect that it is impossible to analyze his records so as to disclose the actual cash interest received by him. Furthermore, the petitioner testified that he did not know what his .income was for either of the years in question. Since the petitioner has failed to show affirmatively either the amount of his net income for the years in question or the incorrectness of the respondent’s computation of such income, the computation of the respondent will not be disturbed, except in so far as it may be modified (1) by reason of the corrections to the figures employed in that computation which were agreed to at the hearing and which are set out in the findings of fact, and (2) by the deductions on account of commissions paid to branch managers which have been allowed.
Judgment will be entered under Rule b0. |
4,490,087 | 2020-01-17 22:02:11.225149+00 | Trttssell | null | *576OPINION.
Trttssell :
In these proceedings we have before use the question of the tax liability of J. M. Walsh, as an individual, for the year 1920, and the tax liability of G. L. Kilmer, as an individual, for the years 1920 and 1922. The issues are whether they each owned 12% shares or 50 shares of stock of the Mobile-Gulfport Lumber Co. on the date of the sale thereof in 1920, and whether they filed false and fraudulent returns.
Early in 1920 petitioners received an offer to purchase the assets of the lumber company, all of the stock of which they owned. After seeking and receiving the advice of an accountant as to the amount of tax which would be exacted upon the large profits derived from such a sale, the offer was definitely refused, for petitioners considered the tax prohibitive. Petitioners did not seek a method to evade taxation upon their individual incomes, but were advised that they had a legal right to make a gift of their stock or part of it and that in the event of the sale thereof the donees’ taxable profit would only be the difference between the value on the date of the gift and the sale price. Relying Upon the advice of an attorney, and for the admitted purpose of avoiding the payment of a large tax and with the intent to make absolute and irrevocable gifts, petitioners executed on April 9, 1920, the trust instrument set forth in the findings of fact. To complete the transaction to divest themselves of the ownership of three-fourths of their Mobile-Gulfport Lumber Co. stock, they transferred that amount of their stocks to themselves as trustees; surrendered the old certificates of stock which were canceled and had new certificates issued by the corporation, one to Walsh for 12% shares, one to Kilmer for 12% shares and one to Walsh and Kilmer, trustees, for 75 shares. Walsh and Kilmer, as trustees, exercised their powers under the trust in selling the property which they held in trust and they received payments from the purchasers, as trustees. Also, they had the trust instrument recorded in the probate court of Mobile County, Alabama.
In the case of Robert Jemison, Jr., et al., 3 B. T. A. 780, the taxpayers negotiated for the sale of the assets of a corporation whose stock they owned, but discovered that the tax would be substantial if the corporation carried out the transaction, so they consulted an attorney as to a legal method to avoid the large corporation tax. Upon *577advice of counsel each of the taxpayers gave one-half of his stock to his wife, the corporation’s assets were distributed, and it was dissolved. The individuals sold the said assets and received the purchase price as individuals. The Board held that the gifts to the wives were bona fide, and that the profits from the sale of the said assets inured to the several individuals and were not taxable to the corporation, nor entirely to the taxpayers. In its opinion, the Board said:
These transactions were either fraudulent or they were what the taxpayers claim them to have been. The parties either accomplished what they set out to accomplish, namely, the registration of the profit in the names and on the part of the individuals, or they failed to do so. If they succeeded they owe a tax upon the transaction as individuals, and if they Imowingly and willfully failed to report that profit as taxable gain they were guilty of fraud. If the corporation made the profit and its officers willfully and knowingly failed to return that profit they and the corporation were guilty of fraud. If the tax was successfully avoided there was neither a fraud nor a tax. The two are inseparable. If the device succeeded it avoided the tax; if it failed the transaction was fraudulent; and there is no concealment on the part of the parties that they intended to do exactly what they did. If what they did was unlawful they were guilty of fraud, whether or not they specifically intended to violate the law. Horning v. District of Columbia, 254 U. S. 135.
The courts have also held that a device to avoid or minimize the burden of the revenue acts may be resorted to if effectuated by legal means. United States v. Isham, 17 Wall. 496; Frazer v. Nauts, 8 Fed. (2d) 106; Ford v. Naught, 25 Fed. (2d) 1015.
There can be no doubt that petitioners had the legal right to make a gift of a portion of the Mobile-Gulfport Lumber Co. stock which they owned outright on April 9, 1920, and the main issue at bar is whether they succeeded in making a valid and completed gift of such stock prior to April 13, 1920, the date of the sale thereof.
In the case of Parrott v. Noel, 8 Fed. (2d) 368, £he court said:
The essential elements of a gift are an intention to deliver, gratuitously and without legal consideration, and a delivery, either actual or constructive, of the thing given. There must be both the purpose and the execution of the purpose. The expression of the purpose may be either oral or in writing and it must be carried into effect by delivery of the thing itself and by acceptance of it by the donee. When those essentials obtain the gift is complete.
Also, see Lee v. Lee, 5 Fed. (2d) 767; Lust v. Miller, 4 Fed. (2d) 293.
To create a trust the settlor or donor must use language which dearly indicates the intention to stamp such character upon a gift and the declaration must be unequivocal. Eschen v. Steers, 10 Fed. (2d) 739; 26 R. C. L., p. 1180, §18.
The trust deed executed by petitioners on April 9,1920, clearly and unequivocally establishes their intention to make the gifts in question and to stamp such gifts with the character of a trust with no power *578of revocation reserved. On the same date the stock was transferred on the records of the corporation, the old shares were canceled and new ones issued — one certificate to each of the petitioners, as individuals, for 1214 shares and one certificate for 75 shares to petitioners as trustees for the various donees, thus vesting the beneficial and equitable title in the donees. When petitioners received and accepted the said 75 shares of stock as trustees on April 9, 1920, sufficient delivery had been made and the gifts were completed. Conlon v. Turley, 10 Fed. (2d) 890; Grisson v. Sternberger, 10 Fed.(2d) 764; 12 R. C. L., p. 943, Gifts, §11; Wiggs v. Winn, 127 Ala. 621; 29 So. 96; Johnson v. Amberson, 140 Ala. 324; 37 So. 273. It is well settled that the donor may constitute himself trustee without affecting the validity of the trust; 26 R. C. L., p. 1191, §27; Johnson v. Amberson, supra; Bath Sav. Inst. v. Hathorn, 88 Me. 122; 33 Atl. 836.
It was not necessary to the validity of the gifts for the donees to formally signify their acceptance of the gifts nor even to have knowledge of the same, for the trust was for their benefit and acceptance is presumed unless there be actual dissent of the donees. Arrington v. Arrington, 122 Ala. 517; 26 So. 152; Grisson v. Sternberger, supra; Roberts v. Taylor, 300 Fed. 257. Furthermore, when a gift has been completed it vests in the donee and remains so vested until he repudiates it. Miller v. Herzfeld, 4 Fed. (2d) 355.
Where a trust is perfectly created, though voluntary, without the power of revocation, it is irrevocable and may not be repudiated or affected by the subsequent acts of the settlor or donor. Stoehr v. Miller, 296 Fed. 414; Stark v. United States, 14 Fed. (2d) 621; Grisson v. Sternberger, supra; Conlon v. Turley, supra. In the Conlon v. Turley case, John Rudden sold certain property and directed a bank to purchase certain bonds with the proceeds. When the bonds had been purchased and were ready for delivery, Rudden directed the bank to hold them in the name of his niece, Margaret Turley, whom he called his adopted daughter. The bonds were placed in the bank’s vault in an envelope marked “ Margaret Y. Turley ” and the bank gave Rudden a receipt stating that the bonds had been received from Margaret V. Turley. The receipt was shown to Margaret, but was kept in Rudden’s office safe. Rudden instructed the bank to clip the coupons when they became payable and credit them to his account, which was done. After Rudden’s death the aforementioned receipt was found in his office safe. The issue was whether Rudden had made a valid gift or whether the bonds were a part of his estate. The court held that delivery was sufficient and that a valid and completed gift bad been made. The court further held that where a valid completed gift has been made, no subsequent action of the donor alone can rescind it.
*579In view of the facts of record and the decisions hereinbefore cited, we are of the opinion that on April 9, 1920, each of the petitioners divested himself of the ownership of 87y2 shares of stock of the Mobile-Gulfport Lumber Co. by making valid, bona fide and completed gifts of the same on that date. While it is true that prior to such gifts negotiations had been entered into for the sale of the lumber company’s assets, the actual sale of the stock was made on April 13, 1920, subsequent to the date of the gifts, and there is no evidence establishing the contrary as contended by respondent, nor is there any evidence establishing a lack of genuineness in the acts of the petitioners. Respondent lays stress upon the fact that the petitioners commingled the trust funds with their personal funds for a period of time, but that fact is more or less immaterial, for as pointed out hereinbefore the subsequent acts of the donors alone can not rescind the gifts. The petitioners’ liability as trustees remained.
The Board has heretofore considered cases involving similar issues. In the case of M. J. Sullivan, 2 B. T. A. 1012, the taxpayer negotiated with an oil company for the sale of his interest in an oil lease, he then assigned that interest to his wife as a gift, after which he and his wife and the oil company entered into a written contract whereby the oil company agreed to purchase the said interest in the lease from the wife. The Board held the transfer of the interest in the lease to be a bona fide gift and that the taxpayer realized .no taxable income upon the sale thereof.
In the case of H. B. Garden, 16 B. T. A. 592, the taxpayer surrendered certain shares of his stock in a corporation and had them reissued in the name of his wife to whom he delivered them. Several months later, with the consent of his wife, the taxpayer contracted in his own name for the sale of stock standing in his wife’s name and also some of the same stock standing in his name. The proceeds from the sale were deposited in their respective bank accounts, but the wife checked hers out and loaned it to the taxpayer for oil operations. The taxpayer gave no notes or security for the loans, but paid back certain amounts in subsequent years. The board held the gift of stock to his wife to have been bona fide and complete prior to the sale thereof. Also, compare Harry C. Moores, 3 B. T. A. 301; John W. Bailey, 3 B. T. A. 362; Frederick H. Hoffman., 3 B. T. A. 964; Earl O. Johnson, 5 B. T. A. 253; Charles W. Walworth, 6 B. T. A. 788; H. C. Wiess et al., 7 B. T. A. 467; Estate of James F. Foster, 13 B. T. A. 496; Fidelity-Philadelphia Trust Co., Executor, 16 B. T. A. 1214; and George W. Dulany, Jr., et al., 17 B. T. A. 486.
The respondent erred in determining that each of the petitioners owned 50 shares instead of 12^ shares of the said stock on the date *580of the sale thereof; that they each derived profits therefrom in excess of $24,176.70; and that they filed false and fraudulent returns with the intent to evade income taxes.
The respondent further erred in determining that Kilmer received $4,958.52 as interest in 1922 as his individual income instead of as trustee.
Reviewed by the Board.
Judgment will he entered pursuant to Rule 50.
Lansdon, Sternhagen, Murdock, and Black dissent. |
4,654,835 | 2021-01-27 07:14:56.078809+00 | null | http://www.search.txcourts.gov/RetrieveDocument.aspx?DocId=17952&Index=%5c%5c10%2e20%2e4%2e7%5cTamesIndexes%5ccoa05%5cOpinion | Affirm and Opinion Filed January 21, 2021
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-19-01085-CR
No. 05-19-01086-CR
EDUARDO GUADALUPE GONZALEZ, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 382nd Judicial District Court
Rockwall County, Texas
Trial Court Cause No. 2-19-0187
MEMORANDUM OPINION
Before Chief Justice Burns,1 Justice Pedersen, III, Justice Goldstein2
Opinion by Justice Pedersen, III
A jury convicted appellant of two counts of aggravated sexual assault of a
child and assessed his punishment at thirty years’ confinement in the Institutional
Division of the Texas Department of Criminal Justice in each case. In a single issue,
appellant argues he received ineffective assistance of counsel. We affirm.
1
The Honorable Justice David L. Bridges participated in the submission of this case; however, he did
not participate in the issuance of this memorandum opinion due to his death on July 25, 2020. Chief Justice
Robert Burns has substituted for Justice Bridges in this cause.
2
The Honorable Justice Bonnie Goldstein succeeded the Honorable Justice David Evans, a member of
the original panel. Justice Goldstein has reviewed the briefs and the record before the Court.
Background
Appellant and the complainant attended the same high school and met on
Instagram. They agreed to meet up at a Walmart, and after meeting there, they drove
their own cars to a nearby park where they were to meet up with friends of appellant.
Once at the park, they got into appellant’s car. The complainant testified that,
although she told him to stop, appellant forcibly penetrated her sexual organ and
then forced her to engage in oral sex. Appellant concedes that the two had sex on
that occasion, but he testified that the sex was consensual. At the time of the charged
offense, the evidence showed that appellant was seventeen years old; the
complainant was fifteen.
Appellant was charged with two counts of aggravated sexual assault of the
complainant by penetrating both her mouth3 and her sexual organ4 with his sexual
organ. See TEX. PENAL CODE ANN. § 22.021(a)(1)(B)(i), (ii); (a)(2)(A)(ii), (iv). In each
charge, jurors were asked whether appellant committed aggravated sexual assault or
the lesser included offense of sexual assault. Jurors found him guilty, in both cases,
of aggravated sexual assault.
This appeal followed.
3
This is trial court case number 2-19-0187 and our case number 05-19-01085-CR.
4
This is trial court case number 2-19-0188 and our case number 05-19-01086-CR.
–2–
Ineffective Assistance of Counsel
Appellant argues that his trial counsel was ineffective because he failed to
request a jury question on the lesser included offense of indecency with a child. He
observes that both submitted questions—aggravated sexual assault and sexual
assault—include an element of force or lack of consent. Thus, jurors were given only
the choice between agreeing that force was used and acquitting appellant. He
acknowledges that it would have been difficult for jurors to choose acquittal—even
if they found his testimony credible—when he had acknowledged having sex with a
minor. He contends that if offered the further option of indecency with a child, the
jurors could have believed his testimony that there was consent, but still found him
guilty and punished him for having sex with a minor.
The offense of indecency with a child requires proof the defendant engaged
in sexual contact with a child younger than seventeen years of age, PENAL § 21.11(a),
which appellant admitted to at trial. Thus, he contends, the facts “fit” this offense.
He contends further that the facts fit an affirmative defense to indecency of a child,
namely that he:
(1) was not more than three years older than the victim and of the
opposite sex;
(2) did not use duress, force, or a threat against the victim at the time of
the offense; and
(3) at the time of the offense:
(A) was not required under Chapter 62, Code of Criminal
Procedure, to register for life as a sex offender; or
–3–
(B) was not a person who under Chapter 62 had a reportable
conviction or adjudication for an offense under this section.
Id. § 21.11(b). Had his counsel requested the indecency submission, appellant
argues, the result of the trial could have been very different.
The State concedes that indecency with a child can be a lesser included
offense of aggravated sexual assault, citing Evans v. State,
299 S.W.3d 138
, 143
(Tex. Crim. App. 2009). But it argues that (1) the record is insufficiently developed
for us to determine whether appellant’s counsel was ineffective for not requesting
the jury question, and (2) given the complainant’s testimony, “a jury could not
rationally have found that if [appellant] was guilty, he was guilty only of indecency
with a child.” We conclude the State’s first argument is dispositive, and therefore
we do not reach the issue of the viability of the lesser included offense in this case.
To prevail on an ineffective assistance of counsel claim, appellant must prove
by a preponderance of the evidence that counsel’s representation fell below an
objective standard of reasonableness and that there is a reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding would have been
different. See Strickland v. Washington,
466 U.S. 668
, 687–88 (1984); Salinas v.
State,
163 S.W.3d 734
, 740 (Tex. Crim. App. 2005). We examine the totality of
counsel’s representation to determine whether appellant received effective
assistance. Thompson v. State,
9 S.W.3d 808
, 813 (Tex. Crim. App. 1999). We do
not judge counsel’s strategic decisions in hindsight, and we strongly presume
counsel’s competence.
Id.
Any allegation of ineffectiveness must be firmly founded
–4–
in the record, and the record must affirmatively demonstrate the alleged
ineffectiveness.
Id.
In most cases, a silent record that provides no explanation for
counsel’s actions will not overcome the strong presumption of reasonable assistance.
Id.
at 813–14. When the record contains no evidence of the reasoning behind the
trial counsel’s actions, we cannot conclude that counsel’s performance was deficient.
See Jackson v. State,
877 S.W.2d 768
, 772 (Tex. Crim. App. 1994).
In this case, appellant did not file a motion for new trial. Thus, the record
provides no discernible explanation of the motivation behind counsel’s decision for
which appellant claims harm. We will not speculate as to counsel’s possible motives.
“Ineffective assistance of counsel claims are not built on retrospective speculation;
they must ‘be firmly founded in the record.’” Bone v. State,
77 S.W.3d 828
, 835
(Tex. Crim. App. 2002) (quoting Thompson,
9 S.W.3d at
813–14). No such record
exists in this case. Accordingly, we cannot say that appellant received ineffective
assistance from his counsel.
We overrule appellant’s single issue.5
5
Because the reasonableness of counsel’s choices often involves facts that do not appear in the
appellate record, a petition for writ of habeas corpus is usually the appropriate vehicle to investigate
ineffective assistance claims. Mitchell v. State,
68 S.W.3d 640
, 642 (Tex. Crim. App. 2002). The Texas
Code of Criminal Procedure entitles an indigent habeas applicant to appointed post-conviction counsel
whenever the court concludes that the interests of justice require representation. TEX. CRIM. PROC. ANN.
art. 1.051(d)(3); see also Ex parte Garcia,
486 S.W.3d 565
, 578 (Tex. Crim. App. 2016) (Alcala, J.
dissenting) (“The existing statutes, therefore, provide an adequate basis upon which to conclude that
appointment of counsel is required in any case in which either the pleadings or the face of the record gives
rise to a colorable, nonfrivolous claim for which legal expertise is required in order to ensure that the claim
is afforded meaningful consideration.”); Mercado-Pena v. State, No. 05-18-01008-CR,
2020 WL 1685336
,
at *6, n.5 (Tex. App.—Dallas Apr. 7, 2020, pet. ref’d) (mem. op.; not designated for publication).
–5–
Conclusion
We affirm the trial court’s judgments.
/Bill Pedersen, III//
BILL PEDERSEN, III
191085f.u05 JUSTICE
191086f.u05
Do Not Publish
TEX. R. APP. P. 47
–6–
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
EDUARDO GUADALUPE On Appeal from the 382nd Judicial
GONZALEZ, Appellant District Court, Rockwall County,
Texas
No. 05-19-01085-CR V. Trial Court Cause No. 2-19-0187.
Opinion delivered by Justice
THE STATE OF TEXAS, Appellee Pedersen, III. Chief Justice Burns and
Justice Goldstein participating.
Based on the Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.
Judgment entered this 21st day of January, 2021.
–7–
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
EDUARDO GUADALUPE On Appeal from the 382nd Judicial
GONZALEZ, Appellant District Court, Rockwall County,
Texas
No. 05-19-01086-CR V. Trial Court Cause No. 2-19-0188.
Opinion delivered by Justice
THE STATE OF TEXAS, Appellee Pedersen, III. Chief Justice Burns and
Justice Goldstein participating.
Based on the Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.
Judgment entered this 21st day of January, 2021.
–8– |
4,669,358 | 2021-03-19 05:08:52.872721+00 | null | https://www.nebraska.gov/apps-courts-epub/public/viewOpinion?docId=N00007637PUB | Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
03/19/2021 12:08 AM CDT
- 527 -
Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
STATE v. STARKS
Cite as
308 Neb. 527
State of Nebraska, appellee. v.
Gary L. Starks, appellant.
___ N.W.2d ___
Filed February 26, 2021. Nos. S-20-585 through S-20-587.
1. Sentences: Appeal and Error. An appellate court will not disturb a sen-
tence imposed within statutory limits unless the sentence was an abuse
of discretion.
2. ____: ____. An abuse of discretion takes place when the sentencing
court’s reasons or rulings are clearly untenable and unfairly deprive a
litigant of a substantial right and a just result.
3. ____: ____. When a defendant challenges a sentence imposed by the
district court as excessive and the State believes the sentence to be
erroneous but has not cross-appealed in accordance with
Neb. Rev. Stat. § 29-2315.01
(Cum. Supp. 2020) or
Neb. Rev. Stat. § 29-2321
(Reissue
2016), an appellate court considers the State’s suggestion of error to the
extent that the court chooses, at its option, to notice plain error.
4. Appeal and Error. Plain error exists where there is an error, plainly
evident from the record but not complained of at trial, which prejudi-
cially affects a substantial right of a litigant and is of such a nature that
to leave it uncorrected would cause a miscarriage of justice or result in
damage to the integrity, reputation, and fairness of the judicial process.
5. Sentences: Appeal and Error. A sentence that is contrary to the court’s
statutory authority is an appropriate matter for plain error review.
6. ____: ____. Whether a sentence is authorized by statute presents a ques-
tion of law, which an appellate court reviews de novo.
7. ____: ____. In reviewing whether an abuse of discretion occurred during
sentencing, an appellate court determines whether the sentencing court
considered and applied the relevant factors and any applicable legal
principles in determining the sentence to be imposed.
8. ____: ____. Relevant factors in determining whether an abuse of dis-
cretion occurred during sentencing may include the defendant’s (1)
age, (2) mentality, (3) education and experience, (4) social and cultural
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308 Nebraska Reports
STATE v. STARKS
Cite as
308 Neb. 527
background, (5) past criminal record or record of law-abiding conduct,
and (6) motivation for the offense, as well as (7) the nature of the
offense and (8) the amount of violence involved in the commission of
the crime.
9. ____: ____. While the factors for determining whether an abuse of dis-
cretion occurred during sentencing should instruct a sentencing court,
they do not comprise a mathematical formula that must be rigidly
implemented. Rather, they are among the relevant factors that may
be considered.
10. Sentences. A sentence should be tailored and based on factors that fit
the offender and not merely the crime.
11. ____. The appropriateness of a sentence is necessarily a subjective judg-
ment that includes the sentencing judge’s observation of the defendant’s
demeanor and attitude and of all the facts and circumstances surround-
ing the defendant’s life.
12. Sentences: Appeal and Error. It is not an appellate court’s function to
conduct a de novo review and a reweighing of the sentencing factors in
the record.
13. Sentences. A determinate sentence is imposed when the defendant is
sentenced to a single term of years.
14. ____. When imposing an indeterminate sentence, a sentencing court
ordinarily articulates either a minimum term and maximum term or a
range of time for which a defendant is to be incarcerated.
15. ____. The fact that the minimum term and maximum term of a sentence
are the same does not affect the sentence’s status as an indetermi-
nate sentence.
16. Sentences: Appeal and Error. The failure to impose an indeterminate
sentence when required to do so by statute constitutes plain error.
17. ____: ____. An appellate court has the power on direct appeal to remand
a cause for the imposition of a lawful sentence where an erroneous one
has been pronounced.
Appeal from the District Court for Douglas County: James
T. Gleason, Judge. Affirmed in part, and in part vacated and
remanded for resentencing.
Thomas C. Riley, Douglas County Public Defender, and Ann
O. Petersen for appellant.
Douglas J. Peterson, Attorney General, and Siobhan E.
Duffy for appellee.
- 529 -
Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
STATE v. STARKS
Cite as
308 Neb. 527
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
and Papik, JJ.
Heavican, C.J.
INTRODUCTION
Based on Gary L. Starks’ plea-based convictions for one
Class IIA felony and three Class IV felonies, he was sen-
tenced to consecutive terms of 8 to 16 years’ imprisonment
for the Class IIA felony and 2 years’ imprisonment for each
Class IV felony. Starks appeals the terms of his total sentence
as excessive. The State notes that the determinate sentences
for Starks’ Class IV felonies may have violated
Neb. Rev. Stat. § 29-2204.02
(Reissue 2016).
We affirm the sentence for Starks’ Class IIA felony, but
vacate the sentences imposed for his Class IV felonies and
remand the cause for resentencing.
BACKGROUND
In September 2019, Starks was charged by information with
possession of a controlled substance, a Class IV felony. 1 The
charge stemmed from the police’s discovery, during a routine
traffic stop, of marijuana “joints” and .7 gram of methamphet-
amine in Starks’ vehicle. Starks pled guilty and, in February
2020, was sentenced to 18 months’ probation.
Over the next 2 months, Starks failed to report for at least
three scheduled appointments with his probation officer. He
also failed to submit for drug tests and to apprise his proba-
tion officer of his places of employment. In June 2020, on the
basis that Starks had violated his probation, the district court
reinstated Starks’ Class IV felony charge for possession of a
controlled substance. 2
While on probation, Starks was also charged with six
counts of theft by shoplifting. The informations alleged that
1
See
Neb. Rev. Stat. § 28-416
(3) (Supp. 2017).
2
See
Neb. Rev. Stat. § 29-2268
(Cum. Supp. 2020).
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308 Nebraska Reports
STATE v. STARKS
Cite as
308 Neb. 527
between December 2019 and March 2020, Starks had misap-
propriated merchandise from various retail stores. Based on
the value of the items taken, and on Starks’ status as a repeat
shoplifter, four shoplifting counts were charged as Class IV
felonies and two shoplifting counts were charged as Class IIA
felonies. 3
Represented by counsel, Starks appeared before the district
court for Douglas County in June 2020. Starks informed the
court that he had reached a plea agreement with the State.
Pursuant to the plea agreement, Starks pled guilty to violat-
ing his probation, a Class IV felony, and to three counts of
shoplifting, including two Class IV felonies and one Class IIA
felony. In exchange, the State dismissed Starks’ remaining
charges. The court accepted Starks’ guilty pleas and ordered a
presentence investigation (PSI). 4
A sentencing hearing was held on July 28, 2020. At the hear-
ing, Starks’ counsel urged the court to impose a sentence “on
the lower range” of what was statutorily authorized. Starks’
counsel noted that Starks’ offenses were nonviolent, that the
PSI report had rated Starks as a low risk for violence and
aggression, and that Starks’ behavior could be partly explained
by the physical abuse he had suffered as a child and by his
drug addiction and lack of stable housing as an adult.
Starks himself testified that while growing up, he had learned
to steal to survive. As an adult, Starks pawned his stolen wares
so that he could afford drugs and temporary housing. He stated
that he was sorry for his actions and expressed a desire to “get
help for my drug addiction. Using methamphetamine, I’ve been
struggling with that for about, like, six years now.” Starks peti-
tioned the court for “another opportunity out there in society”
to become rehabilitated and to take care of his family, includ-
ing his girlfriend and six children.
The State responded by observing that the PSI report indi-
cated Starks was a “very high” risk to reoffend, that the value
3
See
Neb. Rev. Stat. § 28-518
(Reissue 2016).
4
See
Neb. Rev. Stat. § 29-2261
(Cum. Supp. 2020).
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308 Nebraska Reports
STATE v. STARKS
Cite as
308 Neb. 527
of goods he had shoplifted was significant, and that Starks had
not consistently expressed remorse for his actions. The State,
accordingly, recommended to the court a “straight sentence”
of incarceration.
After noting that it had considered the PSI report and the
parties’ arguments and testimony, the court ordered a sentence
of incarceration for each offense. For Starks’ Class IIA felony
conviction, he was sentenced to 8 to 16 years’ imprisonment,
and for each Class IV felony conviction, he was sentenced to
2 years’ imprisonment. Subject to 190 days’ credit for time
served, the sentences were ordered to run consecutively from
the date of sentencing.
Starks perfected timely appeals, which we moved to
our docket. 5
ASSIGNMENT OF ERROR
Starks assigns that the district court imposed excessive
sentences.
The State contests this assigned error but, in its responsive
brief, notes that the determinate sentences for Starks’ Class
IV felonies may have violated § 29-2204.02. Although the
State has not cross-appealed Starks’ sentences on this basis, it
requests that we notice plain error.
STANDARD OF REVIEW
[1,2] An appellate court will not disturb a sentence
imposed within statutory limits unless the sentence was an
abuse of discretion. 6 An abuse of discretion takes place when
the sentencing court’s reasons or rulings are clearly unten-
able and unfairly deprive a litigant of a substantial right and a
just result. 7
5
See
Neb. Rev. Stat. §§ 24-1106
(3) and 25-1912 (Cum. Supp. 2020).
6
See State v. Clausen,
307 Neb. 968
,
951 N.W.2d 764
(2020). See, also,
Neb. Rev. Stat. § 29-2308
(1) (Reissue 2016).
7
State v. McCulley,
305 Neb. 139
,
939 N.W.2d 373
(2020).
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STATE v. STARKS
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308 Neb. 527
[3] When a defendant challenges a sentence imposed by the
district court as excessive and the State believes the sentence
to be erroneous but has not cross-appealed in accordance with
Neb. Rev. Stat. § 29-2315.01
(Cum. Supp. 2020) or
Neb. Rev. Stat. § 29-2321
(Reissue 2016), an appellate court consid-
ers the State’s suggestion of error to the extent that the court
chooses, at its option, to notice plain error. 8
[4-6] Plain error exists where there is an error, plainly evi-
dent from the record but not complained of at trial, which prej-
udicially affects a substantial right of a litigant and is of such
a nature that to leave it uncorrected would cause a miscarriage
of justice or result in damage to the integrity, reputation, and
fairness of the judicial process. 9 A sentence that is contrary to
the court’s statutory authority is an appropriate matter for plain
error review. 10 Whether a sentence is authorized by statute
presents a question of law, which we review de novo. 11
ANALYSIS
Excessive Sentences Claim
We begin by considering Starks’ claim that his sentences
are excessive.
The first step in analyzing whether sentences are exces-
sive is to examine the statutory limits on penalties for such
offenses. 12
Neb. Rev. Stat. § 28-105
(Cum. Supp. 2020) sets
maximum penalties for the felony offenses at issue here. Under
that statute, a Class IIA felony is punishable by a maximum
term of 20 years’ imprisonment and a Class IV felony is pun-
ishable by a maximum term of 2 years’ imprisonment. 13
8
See State v. Guzman,
305 Neb. 376
,
940 N.W.2d 552
(2020).
9
See Clausen,
supra note 6
.
10
State v. Galvan,
305 Neb. 513
,
941 N.W.2d 183
(2020), modified on denial
of rehearing
306 Neb. 498
,
945 N.W.2d 888
.
11
See State v. Kantaras,
294 Neb. 960
,
885 N.W.2d 558
(2016).
12
See Clausen,
supra note 6
.
13
§ 28-105(1).
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STATE v. STARKS
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308 Neb. 527
Starks was sentenced to 8 to 16 years’ imprisonment for
his Class IIA felony and 2 years’ imprisonment for each of
his Class IV felonies. Those sentences did not exceed the
limits of § 28-105(1). Consequently, our analysis of whether
Starks’ sentences are excessive is limited to a review for abuse
of discretion. 14
Before imposing Starks’ sentences, the district court stated
that it “ha[d] considered everything in the [PSI report]” and
everything stated at the sentencing hearing. Starks character-
izes this analysis as inadequate. He contends that it demon-
strates the district court’s failure to adequately weigh various
factors that mitigated the severity of his offenses. According to
Starks, “the district court abused its discretion by tailoring the
sentence to the crime, not the individual offender.” 15
[7,8] In reviewing whether an abuse of discretion occurred
during sentencing, an appellate court determines whether the
sentencing court considered and applied the relevant factors
and any applicable legal principles in determining the sentence
to be imposed. 16 Relevant factors in that analysis may include
the defendant’s (1) age, (2) mentality, (3) education and expe-
rience, (4) social and cultural background, (5) past criminal
record or record of law-abiding conduct, and (6) motivation
for the offense, as well as (7) the nature of the offense and
(8) the amount of violence involved in the commission of
the crime. 17
[9-11] While these factors should instruct a sentencing
court, they do not comprise a mathematical formula that
must be rigidly implemented. 18 Rather, they are among the
relevant factors that may be considered. 19 A sentence should
14
See Clausen,
supra note 6
.
15
Brief for appellant at 5.
16
See State v. Stack,
307 Neb. 773
,
950 N.W.2d 611
(2020).
17
See Clausen,
supra note 6
.
18
See State v. Gray,
307 Neb. 418
,
949 N.W.2d 320
(2020).
19
See
id.
See, also, Clausen,
supra note 6
.
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STATE v. STARKS
Cite as
308 Neb. 527
be tailored and based on factors that “fit the offender and
not merely the crime.” 20 The appropriateness of a sentence is
necessarily a subjective judgment that includes the sentencing
judge’s observation of the defendant’s demeanor and attitude
and of all the facts and circumstances surrounding the defend
ant’s life. 21
Here, the sources cited in the district court’s order amply
support the sentences that were imposed. Both the parties’
testimony and the PSI report provide highly personalized,
relevant evidence about Starks’ life, character, and previous
conduct. 22
And while some of that evidence mitigated the severity of
Starks’ offenses, other evidence did not. The evidence revealed,
for example, Starks’ lengthy criminal history, including previ-
ous convictions for drug use and theft; his troubling signs of
drug and alcohol abuse and of antisocial behavior; and his
resistance to rehabilitative efforts in the past, as demonstrated
by his noncooperation with the terms of probation following
his possession of a controlled substance conviction. These
individualized factors led to a sentencing recommendation in
the PSI report of a term of incarceration based on Starks’ “very
high risk to re-offend.”
[12] It is not this court’s function to conduct a de novo
review and a reweighing of the sentencing factors in the
record. 23 Instead, it is enough for us to conclude that the district
court’s reasons for Starks’ sentences are not clearly untenable
and do not unfairly deprive him of a substantial right and just
result. 24 We thus cannot say that Starks’ sentences are an abuse
of discretion. Starks’ lone assigned error is without merit.
20
See State v. Gibson,
302 Neb. 833
, 844,
925 N.W.2d 678
, 686 (2019)
(citing State v. Harrison,
255 Neb. 990
,
588 N.W.2d 556
(1999)).
21
Clausen,
supra note 6
.
22
See State v. Hurd,
307 Neb. 393
,
949 N.W.2d 339
(2020).
23
See State v. Montoya,
305 Neb. 581
,
941 N.W.2d 474
(2020).
24
See
id.
See, also, Clausen,
supra note 6
.
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STATE v. STARKS
Cite as
308 Neb. 527
Plain Error Analysis
The State notes in its brief that even though Starks’ sen-
tences are not excessive, the district court’s formulation of
those sentences was, in part, erroneous. According to the State,
the district court erred in rendering determinate sentences for
each of Starks’ Class IV felonies.
[13-15] We recently explained the distinction between a
determinate and indeterminate sentence:
“A determinate sentence is imposed when the defendant
is sentenced to a single term of years, such as a sentence
of 2 years’ imprisonment. . . . In contrast, when imposing
an indeterminate sentence, a sentencing court ordinarily
articulates either a minimum term and maximum term or
a range of time for which a defendant is to be incarcer-
ated. In Nebraska, the fact that the minimum term and
maximum term of a sentence are the same does not affect
the sentence’s status as an indeterminate sentence.” 25
Starks’ sentences for the Class IV felonies were determi-
nate because they each consisted of a single term of 2 years’
imprisonment. The district court did not list a range of terms or
minimum and maximum terms. For each Class IV felony, only
a single period of incarceration—2 years—was ordered.
Accordingly, the State contends that the district court’s
formulation of Starks’ sentences was plain error under
Neb. Rev. Stat. § 29-2204
(Reissue 2016) and § 29-2204.02. Under
§ 29-2204, the general rule is that the sentence for most
felonies—except Class III, Class IIIA, and Class IV felonies—
should be indeterminate. In complement, § 29-2204.02(4) then
provides an indeterminacy requirement for some Class III,
Class IIIA, and Class IV felony sentences:
For any sentence of imprisonment for a Class III, IIIA,
or IV felony for an offense committed on or after
25
State v. Thompson,
301 Neb. 472
, 483,
919 N.W.2d 122
, 130 (2018)
(quoting State v. Artis,
296 Neb. 172
,
893 N.W.2d 421
(2017), modified on
denial of rehearing
296 Neb. 606
,
894 N.W.2d 349
).
- 536 -
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STATE v. STARKS
Cite as
308 Neb. 527
August 30, 2015, imposed consecutively or concurrently
with . . . a sentence of imprisonment for a Class I, IA,
IB, IC, ID, II, or IIA felony, the court shall impose an
indeterminate sentence within the applicable range in sec-
tion 28-105 that does not include a period of post-release
supervision, in accordance with the process set forth in
section 29-2204.
(Emphasis supplied.)
For purposes of this indeterminacy requirement, it matters
not when the underlying offenses occurred in relation to each
other or that some of the relevant charges were brought via
different charging documents. Section 29-2204.02(4) is broad
enough that it theoretically could be read to impose an indeter-
minacy requirement upon a Class III, Class IIIA, or Class IV
felony sentence imposed consecutively or concurrently with a
Class I, IA, IB, IC, ID, II, or IIA felony sentence that is already
in progress. What matters under § 29-2204.02(4) is that the
sentences for those offenses are “imposed consecutively or
concurrently” to each other.
On our de novo review, we agree with the State. Because
Starks’ Class IIA and Class IV felony sentences were imposed
consecutively, § 29-2204.02(4) required that the Class IV
felony sentences be formulated as “indeterminate sentence[s].”
Yet, Starks was sentenced to determinate terms of 2 years’
imprisonment. These sentences violated § 29-2204.02(4).
[16,17] The failure to impose an indeterminate sentence
when required to do so by statute constitutes plain error. 26
An appellate court has the power on direct appeal to remand
a cause for the imposition of a lawful sentence where an
erroneous one has been pronounced. 27 We therefore find that
Starks’ three sentences for Class IV felonies were plain error,
26
See, Galvan,
supra note 10
; Guzman,
supra note 8
.
27
Guzman,
supra note 8
. See State v. Valdez,
305 Neb. 441
,
940 N.W.2d 840
(2020).
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STATE v. STARKS
Cite as
308 Neb. 527
and we vacate those sentences and remand the cause to the
district court for resentencing.
CONCLUSION
We vacate in their entirety the sentences imposed by the
district court for Starks’ three Class IV felonies. We other-
wise affirm the judgment of the district court and remand the
cause to the district court for resentencing for Starks’ three
Class IV felonies.
Affirmed in part, and in part vacated
and remanded for resentencing.
Freudenberg, J., not participating.
Cassel, J., concurring.
Because (1) the court today correctly holds that
Neb. Rev. Stat. § 29
‑2204.02(4) (Reissue 2016) applies to charges
“brought via different charging documents,” i.e., in separately
docketed cases; (2) this court has characterized the failure to
impose an indeterminate sentence when required to do so by
statute as plain error 1; and (3) it is not unusual for the sentenc-
ing judgment in a particular case to record only the sentence(s)
imposed in that case, I make two suggestions. An appellate
court should be careful to find plain error only where it is
reasonably certain it has the “whole picture.” A sentencing
court should craft its judgment in each case with some thought
regarding how that judgment, viewed in isolation, might appear
to an appellate court.
1
See State v. Guzman,
305 Neb. 376
,
940 N.W.2d 552
(2020). See, also,
State v. Dill,
300 Neb. 344
,
913 N.W.2d 470
(2018). |
4,622,872 | 2020-11-21 02:51:42.253647+00 | null | null | JOHN REID, JR., PETITIONER, v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT.
REID v. COMMISSIONER
Docket Nos. 46761, 53208.
United States Board of Tax Appeals
28 B.T.A. 1217; 1933 BTA LEXIS 1038;
August 22, 1933, Promulgated
*1038 The city architect of San Francisco who, in addition to his own work for the city, conducted a private practice as an architect, and who was compensated by the city upon the basis of a percentage of the cost of construction projects in respect of which his services were performed, held not immune from Federal income tax upon such compensation.
Fred E. Youngman, Esq., for the petitioner.
C. A. Ray, Esq., for the respondent.
STERNHAGEN
*1217 Respondent determined the following deficiencies in petitioner's income taxes:
1924$952.24
19251,271.09
19262,324.11
19277,805.02
19281,648.73
Respondent added to petitioner's reported income compensation paid to him in each year for his services as city architect. Petitioner contends that this compensation is exempt.
FINDINGS OF FACT.
Petitioner is an individual, residing at San Francisco, California. From July 3, 1919, until December 4, 1928, he held the position and discharged the functions of city architect of San Francisco by virtue of a resolution of the board of public works, containing the following definition of his duties and provision for his compensation:
*1039 RESOLVED, that the duties of the City Architect shall be to prepare plans and specifications for all public buildings, works or improvements for which the *1218 Board of Public Works shall direct him to prepare such plans and specifications, and to supervise the construction of all public buildings, works or improvements the construction of which the Board of Public Works shall direct him to supervise. Further
RESOLVED, that the compensation of said John Reid, Jr., as such City Architect shall be six percent of the total cost of the construction of the respective public buildings, works or improvements the plans and specifications of which he shall so prepare and the construction of which he shall so supervise; provided, however, that if he prepares the plans and specifications, when directed by the Board of Public Works as aforesaid, but is not directed to, or does not, supervise the construction of any particular public building, work or improvement, his compensation for preparing such plans and specifications alone shall be four and one-half percent of the total cost of the construction of such public building, work, or improvement. Further
RESOLVED, that payments*1040 to said John Reid, Jr., as such City Architect, on account of such compensation, shall be made as his work progresses as follows:
Upon completion of the preliminary studies for the plans and specifications for any particular public building, work or improvement one-fifth of the entire compensation for that job.
Upon completion of specifications and general working drawings (exclusive of details) two-fifths additional.
And the remainder from time to time in proportion to the amount of service rendered.
Until the actual cost of construction of any particular public building, work or improvement shall be ascertained, the payments on account of such compensation of the City Architect as aforesaid shall be based upon the estimated cost of construction of said public building, work, or improvement, but such payments shall be applied on account of the compensation due as determined by the actual cost of the work.
The board or department of public works is an executive branch of the municipal government under the management of three commissioners appointed by the mayor. By article VI of the city charter it is empowered to employ such clerks, superintendents, inspectors, engineers, *1041 surveyors, deputies, architects, and workmen as shall be necessary to a proper discharge of its duties and to fix their compensation, and is directed to require adequate bonds from its officers and employees, except laborers. It is charged with the construction, maintenance, care, and control of all public ways, buildings and sewers, and with the supervision of all construction work in the city or county. Examinations, plans and estimates for public improvements required by the supervisors of the city are made by it, and all public works authorized are directed to be done under its supervision by written contract with the best competitive bidder.
On October 16, 1907, the board of supervisors, a legislative branch of the city government, authorized the board to appoint a city architect with fixed salary, bond, and duties; on May 12, 1913, this ordinance was superseded by a second, allowing the board in its discretion to employ persons necessary to perform architectural services *1219 for the city under contracts to pay them 6 percent of the cost of the building to be erected. Section 2 of the ordinance provides:
Section 2. Nothing herein contained shall be deemed or*1042 construed as preventing the Board of Public Works from appointing a City Architect or such persons as said Board of Public Works may deem necessary to perform architectural services for the City and County of San Francisco or to inspect and supervise the construction of public buildings, the intent and purpose of this Ordinance being to place in the discretion of the Board of Public Works the manner and method of obtaining plans and specifications for public buildings and the supervision of the construction thereof.
Prior to petitioner's appointment as city architect in July 1919, he was one of three consulting architects appointed by the board on March 29, 1912.
Petitioner was consulted on every architectural problem of the municipal government both by the board of public works and by the agency primarily interested in the project under consideration, he made recommendations of every kind thereon, advising on proper sites, equipment, etc.; he supervised the erection of all public buildings, with the assistance of ten or fifteen municipal inspectors, who were employed and discharged by the city on his recommendation. He was present at all meetings of the Board of Public Works, *1043 and attended meetings of other municipal agencies as its representative. He submitted monthly reports to the board on the progress of his bureau's work, and annual reports covering the field of its activities.
During the period 1924 to 1928, inclusive, the bureau of architecture had supervision over some ninety construction projects, comprising school buildings, hospitals, fire and police stations. Of these, petitioner did the architectural work for twenty-four; architects for the remainder were recommended by him, and after their appointment he consulted with them, and passed upon the drawings and plans which they submitted, with recommendations for acceptance or rejection. He was also consulted on contracts for all construction work, recommending to whom such contracts should be awarded and exercising official supervision over their execution. He recommended subsequent alterations in plans or materials, and advised on the settlement of claims.
In respect of those projects for which petitioner was designated as architect, he proceeded to draw plans and perform all other architectural services in accordance with the board's resolution of authorization and without other contract*1044 or agreement. Most of his work was on school buildings, about which the board of education consulted him from the beginning in respect of sites and requirements. Correspondence relating to all the city's building projects was addressed to or referred to him. He was provided with an office, technical assistants and clerical help in the city hall. He *1220 also maintained at his own expense another office on Sansome Street, where he employed a staff of from twenty to thirty employees, comprising engineers, draftsmen, and clerical help. He personally paid their salaries and all other expenses incident to his business, most of which was for the city. He was not prohibited from accepting outside employment, but he refused this whenever it might conflict with the city's interest.
Petitioner received as compensation from the city 6 percent of the cost of those projects on which he was designated to do the architectural work. In sworn statements submitted by him to the Bureau of Internal Revenue, he and the president of the board of public works said that he performed without compensation the numerous services in addition to those on architectural work specifically assigned*1045 to him. His personal office staff assisted him in all his work, whether for the city or others. Of his fees for the city's work he received one fifth when his preliminary sketches were approved, two fifths when his working drawings were approved, and the remainder from time to time on certificates which he issued. Other architects appointed by the city received compensation on the same basis, but none was given so much work. This basis is that prescribed by the Institute of Architects of San Francisco, of which petitioner is president. The commissioners constituting the Board of Public Works were not architects; in approving or disapproving petitioner's plans, they relied on his skill in technical matters.
The following schedule reflects the compensation received by petitioner from the city for his architectural services, the expenses of his business, and the amounts added by respondent to the reported income as not tax-exempt because received from the city:
YearCompensationExpensesAdded to income
1924$108,680.43$91,335.11$17,345.32
1925104,636.0087,981.7216,654.28
1926101,069.3474,688.9226,380.42
192782,466.9526,370.5656,096.39
192822,999.615,293.0017,706.61
*1046 OPINION.
STERNHAGEN: The respondent added to petitioner's income the compensation received for his architectural services to the city of San Francisco during the year 1924 to 1928, inclusive. Article 88 of Regulations 62, 65, and 69, and article 643 of Regulations 74, all provide in part that:
Compensation paid to its officers and employees by a State or political subdivision thereof * * * is not taxable.
*1221 Regulations 69 and 74 restrict the article's application to compensation paid for services rendered in connection with the exercise of an essential governmental function. The 1926 Act, section 1211, provides:
SEC. 1211. Any taxes imposed by the Revenue Act of 1924 or prior revenue acts upon any individual in respect of amounts received by him as compensation for personal services as an officer or employee of any State or political subdivision thereof (except to the extent that such compensation is paid by the United States Government directly or indirectly), shall, subject to the statutory period of limitations properly applicable thereto, be abated, credited, or refunded.
The cited regulations are not based upon any section of the acts, but upon the*1047 constitutional ground that those agencies through which the state or the Federal Government immediately and directly exercises its sovereignty are immune from the taxing powers of the other. ; . The exemption, however, is limited to an exercise of those powers which are governmental in character and does not extend to a state's activities in the operation of water or lighting plants, which have the characteristics of an ordinary private business, or to other proprietary functions. ; ; .
Petitioner has introduced a mass of evidence establishing that he was designated city architect of San Francisco by a resolution of the board of public works; that the board's appointment of him as such was authorized by an ordinance of the board of supervisors, a legislative branch of the city government, and that his compensation as architect was fixed at 6 percent of the cost of the specific projects assigned*1048 him for planning and supervising or 4 1/2 percent in the case of those which he was to plan but not supervise. The resolution specifies no duties other than those required in the proper performance of specific assignments, but in practice petitioner rendered very substantial additional services in advising, supervising, reporting, recording, and making recommendations on all the architectural and construction work in which the board of public works and other city agencies were interested. He was provided with an office and staff in the city hall, and maintained at his own expense another office and another staff elsewhere. In his dealings with the public he acted generally as if he were a public official. He argues that his additional routine duties, his advice on all matters in which the board was interested, and the official recognition accorded him show that his own position and general supervision differentiate him from the other architects to whom the board also assigned specific work, and constitute him an officer or employee of a state agency.
*1222 The case is so similar to *1049 (), that the decision must likewise sustain the respondent's determination. In that case a joint building committee, authorized by a North Carolina statute and consisting of commissioners appointed by the Governor, engaged Underwood by contract to devote his entire time and services as an architect to specified state projects at a monthly salary of $500, plus expenses, which included those of his office and staff of assistants. In 1923 this contract was abrogated; petitioner continued as architect and supervisor of public construction work, but in lieu of salary and expenses he received as compensation from 1 1/2 to 6 percent of the moneys expended on the several projects, the percentage being measured by the services which he performed. He continued to devote his entire time to the public buildings, remained under the direction of the joint building committee, and attended meetings of the various boards interested in the projects. But he personally maintained his office, employed his own staff, and paid all expenses incident to his business out of the fees received from*1050 the state. In deciding that he was a private contractor and not a state employee, it was held that the services which he performed were those ordinarily performed by an architect and engineer, that he complied with the instructions and directions of his employers, but brought about the desired results through his own methods and instrumentalities; that the joint building committee was without technical skill and that their control of petitioner was confined to a determination of the kind and character of building construction and repairs to be undertaken, which petitioner proceeded to execute free from interference by the committee. These circumstances, together with the fact that his compensation was regulated by the value or amount of work done, the necessity for the use of judgment by petitioner, the maintenance of an office and staff of his own, and his personal liability for expenses, were held to establish that petitioner was an independent contractor although he had no other employment and was always at the command of the commission for a continuous and indefinite period.
There is no material difference in the facts here. Petitioner seeks to distinguish the Underwood*1051 case on the ground that Underwood's relation with the state was contractual, obliging him to devote his entire time and attention to state services. He contends that the resolution appointing him has no resemblance to a contract "other than that inherent in the acceptance by every officer or employee of the position tendered him." This distinction is not valid. In the first place the original contract of Underwood was abrogated in 1923, and while he continued to perform the same duties required by it, his *1223 compensation and liabilities were altogether changed. The "contract" referred to in the opinion is the new contract arising from the later arrangement. In any event, petitioner's acceptance of the conditions of employment listed in the resolution here resulted in an implied contract equally as effective as a written one.
The Underwood case is in conformity with the holdings of other courts. In , followed in , the Supreme Court said:
An office is a public station conferred by the appointment of government. The term embraces the idea of tenure, duration, *1052 emolument and duties fixed by law. Where an office is created, the law usually fixes its incidents, including its term, its duties and its compensation. ; . The term "officer" is one inseparably connected with an office; * * *
In refusing to exempt from taxation compensation paid to construction engineers, the Court said:
They took no oath of office; they were free to accept any other concurrent employment; none of their engagements was for work of a permanent or continuous character. * * * Their duties were prescribed by their contracts and it does not appear to what extent, if at all, they were defined or prescribed by statute. * * * the performance of their contract involved the use of judgment and discretion on their part, and they were required to use their best professional skill to bring about the desired result. This permitted to them liberty of action which excludes the idea of that control or right of control by the employer which characterizes the relation of employer and employee and differentiates the employee or servant from the independent contractor. *1053 * * * we do not find that it (i.e., taxation of compensation) impairs in any substantial manner the ability of plaintiffs in error to discharge their obligations to the state or the ability of a state or its sub-divisions to procure the services of private individuals to aid them in their undertakings.
; , cited by respondent, is not directly in point. It merely construed a local statute and held that petitioner was not such an employee or officer of the city "in the ordinary sense" as to prevent his being paid other than monthly.
In ; certiorari denied, , Mesce was employed by virtue of a Chicago ordinance authorizing the board of local improvements to retain the services of a building expert for testimony in court proceedings growing out of public improvements. The ordinance prescribed compensation of $50 a day and a percentage of the value of buildings for which plans, diagrams, etc., had to be prepared. In denying Mesce exemption as a city officer, the Court said:
He selected his own office, paid the rent and*1054 for its equipment, and employed at his own expense his assistants. * * * He used his own methods and instrumentalities and did the work of appraising values in his own way and as his judgment dictated, and in so doing he was free, and for such work he received his pay.
*1224 Again in ; affirming , the Eighth Circuit Court of Appeals denied exemption to a construction engineer, employed by contract to repair state buildings, and said:
He was not compelled to devote all his time to the work. There were no working hours. He was not on any payroll. He did not receive a salary or wages; he could accept concurrent employment * * *; was liable for damages caused by delay; employed and paid his own men * * *.
Similar considerations have supported similar conclusions in numerous other case. See ; reversing ; and affirming ; ; *1055 ; ; ; ; dismissed on respondent's motion, ; .
On the other hand, if an architect, lawyer, physician or other professional man is employed by a state to perform whatever tasks may be assigned him (although not precluded from accepting other employment), if his service is continuous and regular, if his work is of a routine and recurring character, or if no definite object is to be accomplished, he has been held an officer or employee and not an independent contractor. ; ; affirming ; ; ; ; *1056 ; ; . Although petitioner's service was in fact regular and continuous, this was because of the city's building activity; had it ceased, he would have been without work or remuneration. While he did much routine, attended meetings, and made recurring reports, and in fact gave recommendations whenever asked, these services were beyond the express contemplation of the resolution and had no effect upon his compensation. Each task which the resolution authorized had to be specially assigned, and any compensation which he might draw had to rest entirely on such special assignment, which, moreover, the board of public works was not legally bound to give in any instance. Had it become dissatisfied with his services, no discharge would have been necessary to dismiss him; a mere failure to assign him new projects would instantly have left him without responsibility of any kind and without compensation. If his services were continuous, the continuity resulted from no term employment, but from a series of fresh employments which kept him steadily*1057 engaged. This is characteristic of an independent contractor, not an employee.
*1225 In his brief petitioner refers to sworn statements made before the Internal Revenue Bureau, wherein he said that the numerous services performed by him in addition to those required by the projects assigned for his preparation and supervision were done in a spirit of public service and not for compensation. He now seeks to deny that this is true, and argues that such statements are not admissions against interest. It seems unnecessary to pass upon the question of admission because the record is sufficiently complete to indicate that no part of the compensation paid was expressly intended to cover these additional services. The resolution of appointment limits the duties of the city architect to the preparation of plans for and supervision of construction of those works which "the Board shall direct him to plan and supervise," and his compensation is limited to the cost of these specific projects. Petitioner stated that he was unwilling to accept a salary as city architect because it would infringe a rule of the local Institute of Architects regarding fees. He and other architects were*1058 all paid on the same basis and that basis was prescribed by the institute. If a part of petitioner's compensation is expressly allocated to his additional services, he would not be receiving the 6 per cent for his specific services, and would hence infringe the rule which his scruples require him to observe strictly.
This uniform 6 percent rule has a further significance, for if all available architects in the city were committed to charge alike and all others paid income tax, there is in fact no burden upon the municipality in taxing the petitioner likewise. Cf. . Thus the petitioner's principal ground for his derivative Constitutional claim is absent.
Judgment will be entered for the respondent. |
4,623,764 | 2020-11-21 02:53:42.290784+00 | null | null | LINDA J. WACHNER, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
Wachner v. Commissioner
Docket No. 6291-93
United States Tax Court
T.C. Memo 1995-88; 1995 Tax Ct. Memo LEXIS 88; 69 T.C.M. (CCH) 1982;
March 2, 1995, Filed
*88 Decision will be entered for respondent.
For petitioner: Robert A. Jacobs.
For respondent: Stephen C. Best, John Aletta, and Powell W. Holly, Jr.
WELLS
WELLS
MEMORANDUM FINDINGS OF FACT AND OPINION
WELLS, Judge: Respondent determined a deficiency in petitioner's 1986 Federal income tax in the amount of $ 820,730. The issue to be decided 1 arises out of a settlement of a lawsuit concerning a failed leveraged buyout of a subsidiary of Revlon, Inc. (Revlon). We must decide whether the portion of the settlement proceeds received by petitioner during 1986 is taxable as ordinary income or is entitled to long-term capital gains treatment. Unless otherwise indicated, all section references are to the Internal Revenue Code for the taxable year in issue, and all Rule references are to the Tax Court Rules of Practice and Procedure.
*89 FINDINGS OF FACT
Some of the facts and certain documents have been stipulated for trial pursuant to Rule 91. The stipulated facts are incorporated in our findings of fact by reference and are found accordingly. At the time the petition was filed in the instant case, petitioner resided in New York, New York. Petitioner reported her income for her taxable year 1986 on the cash receipts and disbursements method of accounting. During 1984, 1985, and part of 1986, petitioner held the position of managing director at Adler & Shaykin (A&S). A&S was a partnership formed under the laws of the State of New York. A&S' partners included Frederick R. Adler and Leonard P. Shaykin. During 1985 and 1986, Philip H. Behr, John G. Quigley, Michael R. Bruce, and John J. Murphy were also partners in A&S. Petitioner was never a partner in A&S.
A&S managed a leveraged buyout fund (the Fund) on behalf of its investors. The Fund was established to acquire equity or equity equivalents in a series of leveraged acquisitions. Once A&S identified an acquisition target, it would organize a limited partnership to facilitate the Fund's investment in the target company. A&S would then contribute capital*90 to the limited partnership on behalf of the Fund's participants. Petitioner assisted A&S in negotiating and consummating leveraged buyout transactions, and consulted and advised A&S regarding any target companies in the retail or consumer products industries. On December 18, 1984, petitioner and A&S executed an agreement specifying petitioner's responsibilities with regard to A&S' leveraged buyout activities and petitioner's compensation. The December 18, 1984, agreement, in pertinent part, provides:
1. A&S hereby agrees to employ you as Managing Director, Consumer Products for a period beginning on December 18, 1984 and ending on November 30, 1985 (the "Term").
2. During the Term, A&S will pay you $ 10,000 at the beginning of each month * * * and will, in addition, reimburse you, upon presentation of receipts, for reasonable out-of-pocket business expenses of up to $ 2,000 per month incurred in connection with your performance of duties hereunder. It is contemplated that A&S will be reimbursed for all amounts paid to you hereunder as part of the closing costs of any leveraged buyout or other transaction that you will have brought to the attention of A&S or for which you*91 will have provided substantial consulting services (if such a transaction is ultimately closed).
* * *
5. a. For target companies in the retail and/or consumer products industry that A&S invests in and that you brought to the attention of A&S or for which you provided substantial consulting services, A&S will provide you with the following additional compensation:
(i) If you are appointed chief executive officer of the target company and you are expected to devote more than 20% of your business time to the affairs of the target company, you will receive one-fourth of A&S's closing fee for consummating the transaction and you and your management group will have the right to buy no less than 20-30% of the target company, as determined in the discretion of A&S. Your right to buy a portion of the target company shall be on substantially the same terms as those at which A&S is purchasing target company stock, except that you and your management group may pay a portion of the consideration for such stock with notes as reasonably determined by A&S.
(ii) If you are not appointed chief executive officer of the target company (or if you are appointed chief executive officer but*92 are not expected to devote more than 20% of your business time to the affairs of the target company), you will receive one-half of A&S's closing fee for consummating the transaction and will have the right to buy 10% of the Co-Investment, as defined in the Commitment Agreement dated October 3, 1983. Your right to buy a portion of the Co-Investment shall be on substantially the same terms as those at which A&S is purchasing target company stock.
b. For target companies not in the retail and/or consumer products industry in which A&S invests during the Term, you will be made aware of all such target companies and have the right to purchase up to 5%, as determined in your discretion, of the Co-Investment. Your right to buy a portion of the Co-Investment shall be on substantially the same terms as those of A&S.
6. A&S further agrees that, during the Term, you will be entitled to receive medical insurance benefits customarily accorded to employees of A&S of like stature.
7. The parties to this Agreement will review their relationship and the terms of this Agreement beginning in September 1985.
During 1985, A&S paid $ 120,000 to petitioner, which A&S reported on Form 1099-MISC. *93 During 1986, A&S paid $ 55,000 to petitioner, which A&S reported on Form 1099-MISC.
Petitioner identified Revlon's Beauty and Fragrance Division (the RBFD) as a suitable acquisition target and brought it to the attention of A&S. Petitioner, on behalf of A&S, negotiated the purchase price for the RBFD, the outside financing for the transaction, and the asset purchase agreement with Revlon. Petitioner, on behalf of A&S, also developed cash flow projections, balance sheets, inventory, debt and account receivables schedules, and performed a due diligence investigation, which included analyzing legal contracts, visiting plants and operations, and interviewing employees of the RBFD. If the purchase and sale of the RBFD had closed, the amount of A&S' closing fee that petitioner would have received under the December 18, 1984, agreement would have been compensation for services.
On October 1, 1985, to facilitate the purchase of the RBFD, A&S organized a Delaware corporation, Beauty Acquisition Corp. (BAC). 2BAC's certificate of incorporation named Mr. Shaykin as BAC's sole director. On October 1, 1985, Mr. Shaykin, as BAC's sole director, elected the following officers of BAC: Mr. *94 Shaykin, president; petitioner, vice president/treasurer; Mr. Quigley, vice president/secretary; and Mr. Kevin R. Evanich, vice president/assistant secretary.
The equity financing for the purchase of the RBFD was to be provided by the following parties: The Equitable Life Assurance Co. (Equitable); Outside Investors/Directors; Revlon Partners; 3 A&S' partners; and BAC's management team, which included petitioner. On October 2, 1985, Equitable executed a letter confirming that, subject to certain conditions, it would provide BAC with $ 375 million in debt financing and $ 34,500,000 in equity financing in order to facilitate BAC's purchase of the RBFD. 4 On October 2, 1985, Bankers Trust Co. (Bankers Trust) and Manufacturers Hanover Trust Co. (Manufacturers Hanover) issued a letter to A&S confirming their willingness to provide credit in the aggregate amount of $ 495 million to finance BAC's purchase of the RBFD. On October 3, 1985, A&S issued a letter in which it unconditionally committed*95 to purchase 55 percent, approximately $ 42 million, of the $ 76,670,000 of equity securities to be issued by BAC. An outline of BAC's equity financing arrangements prepared by Mr. Quigley, dated December 20, 1985, is attached as the appendix. 5
On October 3, 1985, Revlon entered into an asset purchase agreement (the RBFD contract) with BAC for the sale of the RBFD to BAC. A&S negotiated*96 and obtained for BAC a right to specific performance if Revlon failed to perform under the terms of the RBFD contract. Section 8.16 of the contract provides:
Right to Specific Performance. The parties agree that the assets of the * * * [RBFD] are unique and that Buyer is entitled to specific performance of this Agreement. In consideration of the execution of this Agreement by Buyer, Seller agrees that, if a court refuses to grant Buyer specific performance of this Agreement against Seller, Seller will promptly deliver to Buyer $ 20 million in immediately available funds as a break-up fee. Buyer's right to receive payments pursuant to section 8.16 is in addition to, and not in lieu or derogation of, Buyer's right to seek specific performance under this Agreement.
The RBFD contract was signed by Mr. Shaykin as president of BAC. The RBFD contract contained a provision in which A&S guaranteed the performance of BAC under the contract. Mr. Shaykin signed the guarantee as a general partner in A&S. Petitioner did not sign the contract or the guarantee. On October 9, 1985, A&S issued Communication #21 to its investors, which in pertinent part, states:
Pursuant to section*97 3.01 (a) of the Commitment Agreement for the Adler & Shaykin Fund, you are hereby notified of Adler & Shaykin's upcoming investment. On or about November 15, 1985, Adler & Shaykin will fund an investment in connection with the acquisition of Revlon, Inc.'s Beauty Products Group. * * *
The estimated aggregate investment by the Adler & Shaykin Fund will be $ 20 million or 20% of each limited partner's total commitment. In addition, the general partners of Adler & Shaykin, pursuant to section 1.01 (c) of the Commitment Agreement, will be investing $ 5 million, making the total investment by Adler & Shaykin $ 25 million (the maximum investment).
On or about October 31, 1985, we will notify you of the type and amounts of securities comprising this investment, the exact date of the closing, and payment instructions for the funding of this investment. * * *
This investment will be funded by the new A&S Holding Partnership (Revlon Partners), which is being established pursuant to Section 3.02 of the Commitment Agreement. * * *
On November 5, 1985, Pantry Pride, Inc. (Pantry Pride), acquired Revlon. On November 19, 1985, BAC filed a lawsuit against Revlon in the Delaware Chancery*98 Court. In its complaint, BAC sought specific performance of the RBFD contract. The complaint alleged that after Pantry Pride gained control of Revlon on November 5, 1985, Revlon breached the RBFD contract by taking actions which BAC believed were designed to prevent it from consummating the purchase of the RBFD. On November 21, 1985, BAC issued 100 shares of common stock to A&S as record owner. That same day, Mr. Shaykin, as BAC's sole director, elected the following officers of BAC: Petitioner, chief executive officer; Leonard P. Shaykin, president; and John G. Quigley, secretary/treasurer. Mr. Shaykin, as BAC's sole director, also adopted a resolution naming petitioner as the chairman of BAC's board of directors and naming Frederick R. Adler to BAC's board of directors.
On December 6, 1985, petitioner sent a memorandum to Mr. Adler concerning her employment by A&S. In her memorandum, petitioner states:
Attached are a series of documents starting prior to October 18 on BAC. Also attached is a copy of my Adler & Shaykin agreement which ended on November 30, 1985.
The open issues are:
1. The break-up fee and/or damages which we might obtain in BAC.
2. The BAC Agreement*99 - term sheets relating to my agreement with BAC along with two pages that you dictated prior to your vacation.
3. My continuing agreement with Adler & Shaykin.
4. An open issue is still my personal indemnification in any litigation that might arise with respect to Pantry Pride.
I only wish to be fair and just on any of these matters.
I am appreciative of your time, and hope we can finalize these this Sunday.
A handwritten note beneath the typed portion of petitioner's memorandum indicates that 25 percent of A&S' portion of the "break-up fee", less expenses, would be paid to "L.W."
On December 12, 1985, petitioner and A&S entered into a letter agreement. The December 12, 1985, letter agreement provides:
Your contract ends November 30, 1985. This is to confirm our understanding as follows:
1) On the assumption that the BAC acquisition goes through, you will continue as a principal of Adler & Shaykin at a compensation of $ 5,000 per month at an at will basis that is terminable at any time. It would be our intention and your intention that we continue to work closely and develop additional situations for investment as well as for you to be involved in questions involving*100 open market investments, our present portfolio; etc.; and
2) Until such time as the BAC acquisition consummates or if it fails, you will continue as a principal of Adler & Shaykin at your present compensation of $ 10,000 per month plus normal out of pocket expenses up to $ 2,000.00 per month, unless terminated by either you or by us on not less than ninety days' notice. For this interim period, your rights to fees and co-investment opportunities of Adler & Shaykin shall be at the discretion of Adler & Shaykin. It is understood, however, that if the BAC acquisition does not close, both of us intend to arrive at a more defined agreement.
3) The amount received from any break-up fee or settlement of the Revlon matter shall be as follows:
a) First shall be deducted all expenses, not otherwise compensated for, of the Revlon transaction, including fees for accountants, lawyers, consultants, other expenses provided for by the December 18, 1984 agreement, litigation expenses, any other cost of any nature whatsoever.
b) Then shall be deducted any amounts due to the Banks and Equitable.
c) Then of the first gross $ 20,000,000 breakup fee or settlement paid, you shall be entitled*101 to 25% of the net profits before allocation to limited partners.
d) Then of amounts in excess of such gross $ 20,000,000, you shall be entitled to 15% of the net profits computed after deduction for a) and b) and after any payments made to limited partners.
4) If the BAC acquisition goes through, in addition to the provisions in Paragraph 1), your rights shall be governed by the separate agreement, attached as Exhibit A, and you shall also be paid 25% of the Adler & Shaykin General Partner portion of the closing payment which is currently estimated at $ 8,000,000 (i.e., 25% of $ 8,000,000).
The letter agreement was signed by petitioner on December 20, 1985.
On December 16, 1985, petitioner signed another letter agreement with A&S concerning her equity participation and employment by BAC. The December 16, 1985, letter agreement, in pertinent part, provides:
This letter confirms our understanding and, when signed, our agreement concerning your equity participation in and employment by Beauty Acquisition Corporation ("BAC").
I.
Wachner's Stock
A. Payment.
(1) At the Closing, Wachner will pay BAC $ 1 million in cash and will deliver to BAC a note for $ 2.75 million*102 (the "Note") for her 5% of BAC's common and preferred stock.
* * *
B. Vesting. 40% of Wachner's BAC common and preferred stock will fully vest at the Closing. Vesting on the remaining 60% will be determined under a time vesting schedule and a performance vesting schedule, both of which must be satisfied in order for stock to fully vest.
(i) Time vesting. Stock will time vest during the period that Wachner is employed by BAC with 20% of Wachner's BAC stock time vesting during the first year following the Closing and 10% vesting in each of the next four years, on a daily pro rata basis.
(ii) Performance vesting. Stock which has time vested will performance vest if both the annual debt reduction and operating profit goals are met.
* * *
(iii) Example. If, for example, Wachner's employment terminates on June 30, 1986, one-half of the 20% for 1986 will be time vested. If both the 1986 performance goals are met (based on BAC's debt reduction and operating profit for 1986), 10% of the stock will vest.
(iv) Cumulative vesting. If for any year both of such year's annual performance goals are not achieved so that some stock has time*103 vested but not performance vested, such partially vested stock will thereafter performance vest (i.e., become fully vested) only if for any subsequent year both the cumulative debt reduction and operating profit goals are met and Wachner is employed on the last day of such year:
* * *
(v) Addition Vesting. On Wachner's death, permanent disability or termination without cause, 50% of the BAC stock which has not yet time vested will fully vest.
* * *
D. Repurchase Rights. Upon the termination of Wachner's employment agreement for any reason (including death), BAC will have the right to purchase (i) Wachner's unvested stock for cost plus 10% simple interest accruing from the Closing through the repurchase date and (ii) Wachner's vested stock for the fair market value as determined in good faith by BAC's board, except that if Wachner disagrees with the board's determination, an independent investment banker employed by or a partner of a member firm of the New York Stock Exchange and selected by BAC will determine such stock's fair market value. After BAC financial statements for the year ended 12/31/90 have become available, if any of Wachner's*104 stock has not fully vested, BAC will have the right to purchase such unvested stock for cost plus 10% simple interest accruing from the Closing through the repurchase date.
II.
Wachner's Employment Agreement
A. Position. Wachner will be employed for the term of this agreement as BAC's Chief Executive Officer with the title of either Chairman or President, or both, as the board from time to time may designate.
B. Term. The agreement will have a five year term, provided that if Wachner is employed on the fourth anniversary of the Closing, or any subsequent anniversary through the eighth anniversary, then the agreement's term in each such case will be extended by an additional year, e.g., if Wachner is employed on the fifth anniversary, the agreement will have a seven year term.
C. Base Compensation. $ 500,000 per year; provided that the board, in its absolute discretion and without obligation, will review her base compensation and bonus structure every year, beginning at the end of two full years of employment.
D. Bonus. $ 125,000 in each year in which BAC achieves the following operating profit goal, and $ 125,000 in each year in which BAC achieves*105 the following debt reduction goal:
* * *
If Wachner is terminated without cause, BAC's board, in its absolute discretion and without obligation, will determine whether she is entitled to a bonus for such year. Upon her termination for any other reason, Wachner will not receive a bonus.
E. Addition Bonus. If annual operating profits * * * for the second year or any subsequent year exceed $ 150 million, Wachner will receive a cash bonus equal to 1% of such year's operating profits over $ 150 million until operating profits reach $ 200 million and 1-1/2% of the operating profits over $ 200 million; provided, however, that the required operating profits shall be adjusted upwards proportionately to the extent that the CPI increases in excess of .75 of 1% per quarter or 3% per year. If Wachner is terminated without cause, BAC's board will, in its absolute discretion and without obligation, determine whether she is entitled to a bonus for such year. Upon her termination for any other reason, Wachner will not receive a bonus.
* * *
G. Covenant Not to Compete. If Wachner quits, or is terminated with cause, she will not be employed or affiliated, for a period of eighteen*106 months, with any company engaged in any business in which, at the time of her departure, BAC was either engaged or contemplated being engaged.
H. Business Time. For the term of the agreement, Wachner will devote substantially all of her business time to BAC, provided that she may devote up to 10% of her business time to other matters for Adler & Shaykin, in which she serves as a principal, plus such other time, as from time to time, may be approved by the BAC board for services on other boards of directors.
* * *
K. Legal Expenses. BAC will pay Wachner's legal expenses for an amount up to $ 10,000, in connection with the transactions contemplated hereby, whether or not consummated.
* * *
This letter outlines the terms of agreements which will eventually be embodied in definitive agreements. However, until definitive agreements can be prepared, this letter agreement will be binding upon both parties hereto. Part II (K) above will be effective whether or not BAC acquires Revlon. The remainder of this agreement will be effective only if BAC acquires Revlon. [Fn. ref. omitted.]
A management agreement, dated December 24, 1985, was prepared, but was not executed*107 by either BAC or petitioner. 6 The management agreement embodies the terms of the December 16, 1985, agreement executed by petitioner and A&S.
Manufacturers Hanover agreed to lend petitioner $ 1 million to enable her to pay the cash portion of her BAC stock subscription. Petitioner signed a demand note and general loan and security agreement with Manufacturers Hanover on December 24, 1985. Petitioner, however, did not receive a loan from Manufacturers Hanover, did not invest in BAC, and never delivered a note to BAC for the purchase of any stock in BAC.
On December 30, 1985, A&S issued a memorandum to the partners in Revlon Partners concerning BAC's failure to close the RBFD purchase. The memorandum states:
The purchase of Revlon's Beauty Group did not close on December 26, 1985 as previously announced because the Seller did not perform in accordance with the terms and*108 conditions of the contract they have with us. We intend to pursue the matter vigorously, and will keep you informed, as best we can, of future developments.
We are, however, refunding your investment, with interest, in Revlon Partners at this time. We will inform you of a revised closing schedule as the matter progresses.
On April 2, 1986, A&S issued a memorandum to the partners in Revlon Partners concerning the distribution of interest that had accrued on each partner's capital contribution to Revlon Partners.
On June 23, 1986, petitioner sent a letter to Mr. Shaykin concerning her agreement with A&S. The letter, in pertinent part, states:
As you know, we have an interim agreement, spanning the time from the end of my actual agreement until the settlement of Revlon.
When we had dinner last month, you indicated that you wanted to do an entirely new agreement with me.
Leonard, although I sincerely appreciate your thoughtfulness, it seems that my time is very much allocated to the operating responsibility at Warnaco. Therefore, I think that after we settle the Revlon situation as spelled out in my Agreement Letter, signed by Fred, we should conclude my existing arrangement*109 with Adler and Shaykin.
On July 10, 1986, BAC adopted a plan of liquidation. On September 29, 1986, Mr. Shaykin, as president of BAC, executed a document entitled "Transfer and Assignment of Assets", in which BAC transferred its only asset, its claim against Revlon for breach of the RBFD contract, to the holders in interest of BAC in exchange for the 100 shares of BAC's common stock. On October 2, 1986, BAC formally dissolved. On October 3, 1986, a certificate of dissolution was filed on behalf of BAC with the Office of the Secretary of State of Delaware. On October 27, 1986, Revlon paid $ 21,300,000 as a partial settlement of the Beauty Acquisition Corp. v. Revlon, Inc., No. 8253 (Del. Ch., Dec. 12, 1985), lawsuit to Equitable, Bankers Trust, and Manufacturers Hanover in exchange for the release of their claims against Revlon arising out of the litigation concerning the RBFD contract. On December 2, 1986, A&S, as the agent for the holders in interest in BAC, executed a settlement agreement with Revlon that required Revlon to pay $ 23,700,000 to A&S to settle the litigation with Revlon over the RBFD contract.
On December 2, 1986, Mr. Shaykin sent a memorandum to Mr. Adler*110 discussing the amount to be paid to petitioner as her share of the settlement proceeds from the Beauty Acquisition Corp. v. Revlon, Inc., supra, lawsuit. The memorandum, in pertinent part, states:
2. Attached is a copy of the indemnification agreement between ourselves and Linda. Knowing Linda, she will want to have her lawyer review this, and she will only be willing to sign it, I would imagine, after you and she discuss in detail the computation and characterization of her distribution.
With respect to the amount which she should receive, I would propose that the following simple explanation be given to her:
We first take the gross amount ($ 23.7 million) and subtract from it all of our out-of-pocket third party fees and expenses (i.e. lawyers, accountants, public relations people etc.). We then subtract all of our outside third party payments to people who assisted us in this transaction (i.e. Shearson, AMA, and various equity individuals). That will leave a remainder which will be in the neighborhood of $ 18 million.
From that amount, we then subtract $ 7 million (representing our collective portion of the first tranche of $ 20 million). Linda gets *111 25% of this first $ 7 million or $ 1.750 million. That leaves the remainder of $ 11 million.
We then divide the $ 11 million - 40% to our limited partners and 60% to ourselves and Linda. Per our letter agreement with her, Linda would receive 15% of our 60%, or 9% of the total remainder. If the amount of the remainder is $ 11 million, Linda would then get $ 990,000 of this second tranche.
In sum, Linda would get 25% of the first $ 7 million ($ 1.75 million) and 9% of the remainder (approximately $ 1 million if the remainder is $ 11 million or so). Thus her total would be roughly $ 2.75 million.
Linda, along with us, will be entitled to take capital gains treatment on her distribution and will, like us, be responsible for signing a tax indemnification agreement. Linda will also be responsible for repaying to us the $ 50,000 advance which we made to her towards the end of 1985 without interest.
On December 5, 1986, petitioner and A&S executed a letter agreement, which in pertinent part, provides:
A. In consideration of the payment to Wachner of $ 2,785,000 by A&S, receipt of which is hereby acknowledged, Wachner hereby releases and discharges A&S and the former holders*112 of interests in BAC * * * from all actions, causes of action, debts, demands and claims * * * with respect to the Asset Purchase Agreement, the [December 12, 1985] Letter Agreement and the transactions contemplated thereby * * * which Wachner ever had, now has or hereafter may have against [A&S and the former holders of interests in BAC] * * *.
B. Notwithstanding the foregoing, Wachner, on the one hand, and the A&S Group (comprised of A&S and partners therein, Revlon Partners, a New York limited partnership, and partners therein, and others who receive amounts through A&S other than Wachner), on the other hand, shall share * * * any Federal, state or local tax, including interest and penalties, and the reasonable expenses of contesting any such tax (the "Tax") incurred by, or assessed against, BAC * * * which is attributable to the Settlement Amount and which is not paid by the Equitable Group pursuant to the Equitable Agreement.
On December 17, 1986, A&S issued a check to petitioner in the amount of $ 2,785,000 (the settlement payment) from the proceeds it received pursuant to the settlement agreement with Revlon. The settlement payment was made pursuant to paragraph 3 of the*113 December 12, 1985, letter agreement executed by A&S and petitioner.
A&S sent a memorandum, dated December 17, 1986, to the limited partners of Revlon Partners discussing the amount of the settlement proceeds A&S proposed to distribute to them. The memorandum, in relevant part, states:
The result of approximately one year of effort and in excess of $ 3.5 million in gross litigation expenses, is that, in early November, our banks received $ 6,000,000 as a settlement from Revlon and Equitable received $ 15,300,000, less its direct expenses.
On December 2, 1986, A&S settled separately with Revlon for $ 23,700,000. After all third party expenses, including contractual payments to Linda Wachner, and payments to key A&S personnel who worked on the matter, the net settlement came to approximately $ 13,800,000.
* * *
Trying to balance all of this and be more than fair to all parties concerned, we have decided to pay $ 4,600,000 to the Limited Partners and $ 4,600,000 to L. P. Shaykin and $ 4,600,000 to F. R. Adler. * * *
Subsequently, a dispute arose between A&S and some of the limited partners of Revlon Partners regarding the amount of the settlement proceeds to be distributed*114 to the limited partners. A&S distributed $ 2,783,000 to those limited partners who accepted the $ 4,600,000 as the limited partners' share of the settlement proceeds. The remaining limited partners formed an investment committee to dispute the amount of the settlement proceeds that A&S proposed to pay to the limited partners. On April 23, 1987, A&S and the investors' committee reached a settlement whereby A&S agreed to pay all the limited partners an aggregate amount of $ 9,937,500 as their share of the settlement proceeds from the Beauty Acquisition Corp. v. Revlon, Inc., supra, lawsuit. On May 7, 1987, A&S, for itself and the former holders of interest in BAC, entered into tax indemnification agreements with its investors.
On May 15, 1987, A&S sent a letter to petitioner requesting that she return $ 810,375 of the settlement payment. In the letter, A&S states the following:
On December 12, 1985 Linda Wachner ("Wachner") and Adler & Shaykin ("A&S") entered into a letter agreement (the "1985 Letter") pursuant to which A&S agreed to pay to Wachner a specified portion of the net amount retained by A&S (after payment of expenses and payments to its limited partners) *115 out of the amount received by A&S in connection with claims against Revlon, Inc. and its affiliates (collectively "Revlon"). On December 5, 1986, Wachner and A&S entered into a letter agreement (the "1986 Letter") pursuant to which A&S delivered to Wachner $ 2,785,000 in payment of amount due to Wachner under the 1985 Letter. The amount paid to Wachner under the 1986 Letter was based upon A&S' belief that $ 4,600,000 of the amount received by A&S from Revlon would be paid to A&S' limited partners.
Subsequent to the 1986 Letter, a dispute arose between A&S and its limited partners, resulting in the amount paid by A&S to the limited partners being increased from $ 4,600,000 to $ 9,937,500. As a result, the net amount retained by A&S out of the Revlon settlement decreased and the parties hereto agree that the amount paid to Wachner will be decreased to $ 1,974,625. To effectuate such decrease, Wachner will repay to A&S $ 810,375 by May 22, 1987.
As a result of Wachner's repayment to A&S, Wachner will be deemed to have received the net amount of $ 1,974,625 from A&S pursuant to the 1986 Letter. Except as expressly set forth herein, the 1986 Letter will remain in full force and*116 effect (including but not limited to the release and tax indemnification provision thereof). The parties acknowledge that Wachner's liability in respect of the tax indemnity set forth in the 1986 Letter will be reduced in proportion to the reduced percentage of the Settlement Amount (as defined in the 1986 Letter) received by Wachner. In particular, the portion of the Settlement Amount received by Wachner will be deemed to be $ 1,974,625, rather than $ 2,785,000.
On June 17, 1987, A&S sent another letter to petitioner, which states:
As already discussed with you, pursuant to the understanding of the parties, should the Revlon transaction not close, you were to receive the following payment from any resulting break-up fee or settlement: $ 1,750,000, representing 25% of our share of the first gross $ 20,000,000 break-up fee before allocation to the limited partners; and an additional 15% of the general partner's share of the proceeds after payment of out-of-pocket and third party expenses and payments to Adler & Shaykin's limited partners. As you are aware, the Revlon transaction did not close and litigation ensued.
Initially, at the time of settlement, in December 1986, *117 all parties anticipated payments to our limited partners of $ 4.6 million. In order that you promptly receive your share of the proceeds upon the settlement of the Revlon litigation, we paid you $ 2,785,000 based on that $ 4.6 million figure. At that time it was explained to you that the payment which you received was based on an estimate of your entitlement and you would have to return an allocable portion if payments to the limited partners turned out to be greater than contemplated.
Subsequently, on April 23, 1987, pursuant to our agreement with the limited partners, it was determined that the limited partners were entitled to a final distribution of $ 9,937,500 from the proceeds of the Revlon settlement. Accordingly, in our letter of May 15, 1987, we notified you that payments to the limited partners exceeded our original estimate, and requested, per our prior understanding, that you return to us $ 810,375, which figure represents the decrease in your share of the Revlon settlement based on the final distribution to our limited partners. Despite our requests, you have not repaid this money
We have discussed this matter with our counsel, Dennis J. Block of Weil, Gotshal*118 & Manges, and must now insist that you forthwith remit to us the $ 810,375 owed pursuant to our understanding. If you continue to refuse to abide by your agreements, we will be forced to authorize Mr. Block to take all action necessary to obtain payment. We trust this action will not be necessary.
On or about August 10, 1987, A&S brought a lawsuit against petitioner in the Supreme Court of the State of New York seeking a refund from petitioner of $ 810,375 of the settlement payment. The suit was removed to the U.S. District Court for the Southern District of New York. On August 24, 1987, A&S paid the Revlon Partners limited partners $ 9,937,000. Petitioner reported the settlement payment as long-term capital gains, with a basis of zero, on her Federal income tax return for her taxable year 1986.
OPINION
We are asked to decide whether the settlement payment is taxable as ordinary income or is entitled to long-term capital gains treatment. Petitioner argues that her contractual right to purchase stock in BAC is a capital asset, that the settlement payment was in exchange for her equitable interest in BAC and that she is therefore entitled to long-term capital gains treatment. *119 Respondent, on the other hand, contends that petitioner never had an equity interest in BAC, that the settlement payment was compensation for services she performed in connection with the RBFD transaction, and that the settlement payment is taxable as ordinary income. 7Respondent's determination is presumed correct, and petitioner bears the burden of proving that the determination is erroneous. Rule 142(a); Welch v. Helvering, 290 U.S. 111">290 U.S. 111, 115 (1933).
An executory contract to acquire a capital asset may itself be a capital asset. Turzillo v. Commissioner, 346 F.2d 884 (6th Cir. 1965), revg. and remanding T.C. Memo. 1963-317; Dorman v. United States, 27">296 F.2d 27 (9th Cir. 1961); Meldon v. Commissioner, 225 F.2d 467">225 F.2d 467 (3d Cir. 1955),*120 affg. in part and vacating in part T.C. Memo. 1954-120; Denison v. Commissioner, T.C. Memo. 1977-430. The release of a contractual right to acquire a capital asset may constitute a sale or exchange of a capital asset. Commissioner v. Ferrer, 304 F.2d 125 (2d Cir. 1962), revg. in part and remanding 35 T.C. 617">35 T.C. 617 (1961). On the other hand, an amount received as a substitute for ordinary income is taxable as ordinary income even though a property right has technically been transferred. See Commissioner v. P.G. Lake, Inc., 356 U.S. 260">356 U.S. 260 (1958); Hort v. Commissioner, 313 U.S. 28">313 U.S. 28 (1941); United States v. Dresser Indus., Inc., 324 F.2d 56">324 F.2d 56, 59 (5th Cir. 1963); Wiseman v. Halliburton Oil Well Cementing Co., 301 F.2d 654">301 F.2d 654, 658 (10th Cir. 1962); Foy v. Commissioner, 84 T.C. 50">84 T.C. 50, 68 (1985). 8 For instance, contracts for personal services are not considered capital assets in the hands of the person who is to render the services*121 even though they may be considered "property" for purposes of State law. See Commissioner v. Gillette Motor Transp., Inc., 364 U.S. 130">364 U.S. 130, 135 (1960); Burnet v. Harmel, 287 U.S. 103">287 U.S. 103, 110 (1932); Freese v. United States, 455 F.2d 1146">455 F.2d 1146 (10th Cir. 1972); Shuster v. Helvering, 121 F.2d 643">121 F.2d 643, 645 (2d Cir. 1941), affg. 42 B.T.A. 255">42 B.T.A. 255 (1940); Rothstein v. Commissioner, 90 T.C. 488">90 T.C. 488, 494 (1988); Kingsbury v. Commissioner, 65 T.C. 1068">65 T.C. 1068, 1081 (1976); Putchat v. Commissioner, 52 T.C. 470">52 T.C. 470 (1969), affd. 425 F.2d 737">425 F.2d 737 (3d Cir. 1970). Consequently, in the instant case, petitioner must prove that she received the settlement payment (or a portion thereof) in exchange for her right to purchase an equity interest in BAC. Otherwise, we must sustain respondent's determination that the settlement payment was for personal services performed by petitioner in connection with BAC's failed attempt to acquire the RBFD, and is taxable as ordinary*122 income. Freese v. United States, supra; Rothstein v. Commissioner, supra at 493; see also Elliott v. United States, 431 F.2d 1149 (10th Cir. 1970). The question of whether the settlement payment represents fruits of labor or fruits of a sale or exchange of a capital asset is a question of fact. Foy v. Commissioner, supra at 69-70; Buena Vista Farms, Inc. v. Commissioner, 68 T.C. 405">68 T.C. 405, 411-412 (1977); Denison v. Commissioner, supra.
Respondent contends that the documentary evidence establishes that petitioner received the settlement payment as compensation for services. Petitioner contends that the testimony*123 establishes that the settlement payment was received in exchange for her equity interest in BAC. We hold that petitioner has failed to prove that the settlement payment was received in exchange for her equity interest in BAC.
On December 18, 1984, petitioner signed a letter agreement with A&S in which A&S agreed to pay petitioner $ 10,000 per month and to reimburse her up to $ 2,000 a month for out-of-pocket expenses. The letter agreement provided that, if petitioner identified a company in the retail or consumer products industries leading to A&S' decision to invest in the company and if she provided substantial consulting services, petitioner would be entitled to additional compensation upon her devotion of more than 20 percent of her business time to operating the target corporation. The additional compensation was to be one-fourth of A&S' closing fee for consummating the transaction and an option to purchase 20 to 30 percent of the target company on substantially the same terms as A&S. The letter agreement also stated that petitioner was entitled to receive medical insurance benefits "customarily accorded to employees of A&S of like stature".
Petitioner identified the RBFD*124 as a suitable investment for A&S and brought it to A&S' attention as an acquisition target. On behalf of A&S, petitioner negotiated the purchase price for the RBFD, the RBFD contract, and the outside financing for the transaction, and performed other services that were necessary to facilitate the transaction.
After it became likely that the RBFD transaction would not close as scheduled, petitioner, on December 6, 1985, sent a memorandum to Mr. Adler concerning her status with A&S. 9 In her memorandum, petitioner expressed a desire to come to a resolution with A&S over what percentage of any breakup fee or settlement that BAC might obtain from Revlon would be allocated to her. Petitioner and Mr. Adler agreed on a formula for allocating the proceeds from the RBFD litigation to petitioner. 10 The agreement they reached concerning the allocation of the settlement proceeds was included in the December 12, 1985, letter agreement executed by petitioner and A&S. Both respondent and petitioner agree that the settlement payment was made pursuant to paragraph 3 of the December 12, 1985, letter agreement. Paragraph 3 provides:
3) The amount to be received from any breakup fee or settlement*125 of the Revlon matter shall be as follows:
a) First shall be deducted all expenses, not otherwise compensated for, of the Revlon transaction, including fees for accountants, lawyers, consultants, other expenses provided for by the December 18, 1984 agreement, litigation expenses, any other cost of any nature whatsoever.
b) Then shall be deducted any amounts due to the Banks and Equitable.
c) Then of the first gross $ 20,000,000 breakup fee or settlement paid, you shall be entitled to 25% of the net profits before allocation to limited partners.
d) Then of amounts in excess of such gross $ 20,000,000, you shall be entitled to 15% of the net profits computed after deduction for a) and b) and after any payments made to limited partners.
At trial, Mr. Adler, Mr. *126 Shaykin, and Mr. Quigley testified that they regarded petitioner as a "partner" or "coventurer" in the RBFD transaction, and that the settlement payment was not compensation for the services that she performed in connection with the RBFD transaction. Mr. Shaykin, Mr. Adler, and petitioner also testified that the settlement payment was made in exchange for petitioner's equity interest in BAC.
Some of the documentary evidence in the record tends to support the proposition that at least some portion of the settlement payment was made in exchange for an equity interest in BAC. Mr. Shaykin's memorandum, dated December 2, 1986, concerning the amount of the settlement proceeds that was to be allocated to petitioner, states that petitioner, like the partners in A&S, would be entitled to capital gains treatment. While such a statement is by no means dispositive of the question of whether the settlement payment is taxable as a capital gain, it does corroborate Mr. Shaykin's testimony that petitioner was regarded as an equity investor in the RBFD transaction and that she had the same status as the other equity investors. Petitioner's contention also finds some support in the "final breakdown*127 of Revlon expenses and allocations" prepared by A&S on September 22, 1987, which lists the settlement payment on the same schedule as the payments that were made to the partners of A&S on account of their equity interests in BAC.
Nevertheless, other documents in the record tend to support the proposition that the settlement payment was received by petitioner as compensation for services that she performed in connection with the RBFD transaction. A&S' December 17, 1986, memorandum to the limited partners of Revlon partners states, in part:
On December 2, 1986, A&S settled separately with Revlon for $ 23,700,000. After all third party expenses, including contractual payments to Linda Wachner, and payments to key A&S personnel who worked on the matter, the net settlement came to approximately $ 13,800,000.
A&S' characterization of the contractual payments it made to petitioner as "third party expenses" -- in the same category as "key A&S personnel who worked on the matter" -- suggests that A&S intended to compensate petitioner for services rendered in connection with the RBFD transaction, rather than for petitioner's equity participation in the RBFD transaction. Moreover, the*128 "final breakdown of Revlon expenses and allocations" prepared by A&S on September 22, 1987, also lists the settlement payment made to petitioner in the same category as "net expenses" 11 and payments made to "third parties". 12
Finally, paragraph 3 of the December 12, 1985, letter agreement and Mr. Shaykin's memorandum to Mr. Adler, dated December 2, 1986, *129 states that any payment made to petitioner was to be reduced by the amount of the out-of-pocket expenses A&S advanced to petitioner during 1985. 13 The requirement that petitioner "reimburse" A&S for the out-of-pocket expenses A&S advanced to her during the course of the RBFD transaction supports respondent's contention that petitioner was receiving a commission for arranging the RBFD transaction. 14
Petitioner bears the burden of proving that she received the entire settlement payment in exchange for her equity interest in BAC. At trial, petitioner testified that*130 she was the one who brought the RBFD transaction to the attention of A&S. She also testified at length about the extensive services she performed in connection with the RBFD transaction, yet she contends that the only compensation she received for those services was the $ 10,000 per month retainer fee A&S paid her. Petitioner concedes that, if BAC had acquired the RBFD, she would have been entitled to a $ 2 million payment (25 percent of the A&S' projected $ 8 million closing fee) as compensation for services she performed in connection with the RBFD transaction.
None of the documentary evidence contained in the record is conclusive as to the issue of whether the settlement payment was made to compensate petitioner for the loss of a right to acquire an equity interest in BAC. Moreover, neither the testimony presented at trial nor the documentary evidence in the record establishes a clear connection between the formula contained in paragraph 3 of the December 12, 1985, letter agreement and any equity interest petitioner might have acquired in BAC if the Revlon acquisition had gone through. Consequently, we hold that petitioner has failed to meet her burden of proving that she *131 received the settlement payment, or any portion of it, in exchange for the loss of a right to acquire an equity interest in BAC.
Additionally, even if petitioner had received the settlement payment in exchange for an equity interest in BAC, such an interest would have been received by petitioner in connection with her performance of services. Section 83 governs the taxation of property transferred to a person "in connection with the performance of services". Section 83(a) provides that, where property is transferred in connection with the performance of services, the excess of the fair market value of the property over the amount paid for the property, if any, is includable in the gross income of the taxpayer who performed the services. 15 A transfer of property is subject to section 83 if made "in respect of past, present, or future services". Sec. 1.83-3(f), Income Tax Regs. Whether property was transferred in connection with the performance of services is a question of fact. Bagley v. Commissioner, 85 T.C. 663">85 T.C. 663, 669 (1985), affd. 806 F.2d 169">806 F.2d 169 (8th Cir. 1986). Where the transfer of property is governed by the terms *132 of an employment agreement, we have generally found that the taxpayer received the property in connection with the performance of services. Id. at 669; Alves v. Commissioner, 79 T.C. 864 (1982) (Court-reviewed), affd. 734 F.2d 478">734 F.2d 478 (9th Cir. 1984); see also Puchat v. Commissioner, 52 T.C. 470">52 T.C. 470 (1969), affd. 425 F.2d 737">425 F.2d 737 (3d Cir. 1970) (holding that an amount received by a taxpayer in exchange for the release of all his rights under an employment agreement, which included the release of his right to exercise a stock option, was compensatory in nature, and was therefore taxable as ordinary income).
In the instant case, the documents in the record*133 clearly demonstrate that petitioner's right to invest in any of A&S' ventures involving companies in the retail or consumer products industries was contingent on her performing services on behalf of either A&S or the acquisition target. Moreover, in the December 16, 1985, letter agreement executed by both petitioner and A&S, petitioner's right to purchase a 5-percent equity interest in BAC was made contingent on her performing services for BAC. According to the December 16, 1985, letter agreement, only 40 percent of petitioner's 5-percent equity interest in BAC vested upon the closing of the RBFD transaction. The remaining portion of petitioner's equity interest in BAC was to vest over the length of the employment contract, and then only if BAC met certain debt reduction and profit projection schedules contained in the agreement.
Neither petitioner nor respondent addressed the application of section 83 to the transaction in issue. At trial, however, petitioner offered, and the Court received into evidence, a document containing a section 83(b) election for petitioner's potential equity interest in BAC. The document had not been executed by petitioner. Additionally, at trial, *134 petitioner testified as follows:
Q. Do you recall having seen this document before?
A. Yes.
Q. What is it?
A. It is an 83(b) election.
Q. Was it ever finalized?
A. Well it wasn't finalized because the deal never closed, but effectively what it is, it allows me -- or would have allowed me, had the deal closed, and had my stock been a vesting stock, which it would have been, as Quigley described in his testimony here that this stock was going to vest in two ways, one on performance and the other on time. So what this did was allow me to not pay the gross amount of income tax that would have come had I owned the stock 100 percent outright had the deal closed, and I would have paid capital gains on the sale of any stock in the future. So that is, without being technical, the result of the 83(b).
Q. It sounds better than what most tax lawyers would do.
A. I have done a lot of deals.
Had petitioner acquired an equity interest in BAC, it clearly would have been received in connection with her performance of services; i.e., either for services she performed for A&S or for the services that she would have performed for BAC had the RBFD transaction closed. *135 Consequently, even if we were to classify a part of the settlement payment as having been received in lieu of petitioner's equity interest in BAC, it would not end the inquiry. If property is to be received in connection with the performance of services, as in the instant case, it is still taxable under section 83 as ordinary income, absent the filing of a section 83(b) election. Alves v. Commissioner, supra at 877. Consequently, we hold that, even if petitioner had shown that the settlement payment she received from A&S related in whole or part to her potential equity interest in BAC, we would conclude that it was received in connection with the performance of services, and therefore, is taxable as ordinary income. 16
*136 Because we hold for respondent on other grounds, we need not decide whether BAC was a collapsible corporation within the meaning of section 341.
Based on the foregoing,
Decision will be entered for respondent.
Appendix
BAC
Equity Ownership
Amount
ShareholderPercentage(in millions)
Equitable46.00$ 34.50
Management 115.0011.25
Outside investors/3.002.25
directors 2*137
A&S
Revlon Partners26.6720.00
Co-Investment 36.6733.335.0025.00
Subtotal97.3373.00
Overage2.672.00
Total100.004 75.00
Footnotes |
4,490,048 | 2020-01-17 22:02:10.07648+00 | Murdock | null | *437OPINION.
Murdock:
The Revenue Act of 1921, in section 234(a), provides that the following may be deducted:
(5) Debts ascertained to be worthless and charged off within the taxable year (or in the discretion of the Commissioner, a reasonable addition to a reserve for bad debts) ; and when satisfied that a debt is recoverable only in part, the Commissioner may allow such debt to be charged off in part.
The petitioner does not claim the deductions in question under that part of the above provision which relates to a reserve. Although it admits that neither an ascertainment of worthlessness nor a charge-off was made in the taxable years, it nevertheless contends that the debts were eventually ascertained to be worthless and charged off, and its right to the deductions was not lost because of *438the delay. We need not decide this question, since in any event the petitioner has failed to offer sufficient evidence from which we can determine that it ever ascertained these debts to be worthless within the meaning of the Act.
We are asked to hold that the petitioner ascertained certain debts to be worthless. The Commissioner has refused to so hold. In such a situation the petitioner does not make out its case by merely having witnesses testify in so many words that the debts were ascertained to be Avorthless. Such a statement of a witness is a conclusion based upon the judgment of the witness as to what is necessary to ascertain a debt to be worthless. This is a question upon which we are to exercise our judgment and the judgment of the witness may not be substituted for ours and forced upon us in this way. Facts, not conclusions alone, must be presented, the facts which moved the officers of the petitioner to reach their conclusion that the debts were worthless. Alemite Die Casting & Manufacturing Co., 1 B. T. A. 548; Higginbotham-Bailey-Logan Co., 8 B. T. A. 566; American National Bank., 10 B. T. A. 490, affd. 31 Fed. (2d) 47; Atlantic Bank & Trust Co., 10 B. T. A. 796; Cullum Motor Co., 15 B. T. A. 1253.
Einhorn was asked, “ Did you question the accounts and go into the question as to why they had not been paid?” He answered, “ Yes. I remember I asked Mr. Levin why they were not paid.” He further testified that he examined the accounts receivable ledger and discovered certain balances were being carried, some of which were three or four years old. He did not remember referring to any correspondence relating to these accounts which might have been in the files. And he did not toll us of anything further that he did other than that he consulted with the accountant. The accountant testified that he carefully scrutinized every account in the ledger and if there was any correspondence in the file he examined it, and from his investigation he prepared a schedule showing the name of the debtor, his address, the date of the last sale, the date of the'last payment, and the amount charged off. This man knew nothing of the debts except what he learned from the files of the company. We have not been told what information as to particular debts was contained in the files. On the facts before us we can not say that a reasonably prudent business man would have concluded that these particular debts were worthless in the taxable years. Even if we were satisfied that the debts were worthless at the time the investigation was made, we could not approve the accountant’s method of allocating part of the charge off to one year and part to the other without additional proof on this point.
Judgment will be entered for the respondent. |
4,490,049 | 2020-01-17 22:02:10.105845+00 | Akundell | null | *440OPINION.
Akundell :
The only issue before us for decision is whether the respondent erred in refusing to determine the petitioner’s income-*441tax liability in 1923 on the basis of a consolidated return. All other assignments of error were abandoned by the petitioner at the hearing.
The petitioner contends that it was not affiliated with the Brownsville Brewing Co. in 1922, and accordingly, the filing of a separate return in that year does not preclude it from filing a consolidated return for the year 1923, during which it was affiliated. The respondent, on the other hand, contends that it was affiliated in 1922, and since the petitioner elected to have its tax liability for that year'determined on the basis of a separate return, the same basis must be used for the taxable year.
The question to be determined is whether or not an ownership by the same persons "in substantially equal proportions of approximately 92 per cent of the voting stock of the two domestic corporations, without any control by such persons over the remaining stock, serves to create an affiliated status for such corporations within the meaning of the statute and to require them to file consolidated returns.
Section 240 (c) of the Revenue Act of 1921 provides that domestic corporations shall be deemed to be affiliated “ if substantially all the stock of two or more corporations is owned or controlled by the same interests.” There can be no doubt that the persons who held stock in both corporations constituted the “ same interests ” referred to in the statute.
Whether the same interests own or control substantially all of the stock of two or more corporations depends upon the peculiar facts of the case under consideration. “ ‘ Substantially all the stock ’ is a lax, indefinite expression. * * *. Its limitations cannot be defined with exactness or certainty.” Great Lakes Hotel Co. v. Commissioner, 30 Fed. (2d) 1, reversing 10 B. T. A. 120. To the same effect are Commissioner v. Adolph Hirsch & Co., 30 Fed. (2d) 645, and numerous cases of this Board.
Here, about 92 per cent of the voting stock of both corporations was held by 24 stockholders in substantially the same proportions. In only one instance was the percentage greater 'than about 1 per cent. In that one particular, the difference was only about 4 per cent. Hone of the remaining 10 stockholders of the petitioner held more than about 1.75 per cent of its outstanding stock. Most of such stockholders had less than 1 per cent. The remaining stock of the Brownsville Brewing Co. was held by 14 persons in proportions ranging from about .08 per cent to approximately 2.5 per cent. The close relationship between the corporations is illustrated by the fact that the Brownsville Brewing Co. allowed the use by petitioner of its office, heating and refrigerating plants, and trackage, without charge.
In our opinion in 1922 substantially all of the stock of the petitioner and the Brownsville Brewing Co. was owned by the same interests, It necessarily follows that the corporations were affiliated. *442See H. B. Smith Machine Co., 7 B. T. A. 525; All America Cables, Inc., 10 B. T. A. 213; Peavey-Byrnes Lumber Co. et al., 14 B. T. A. 625; Good Manufacturing Co., 15 B. T. A. 583.
Section 240(a) of the taxing act provides that affiliated corporations may for any year beginning on or after January 1, 1922, file separate returns or a consolidated return and after making an election “ all returns thereafter made shall be upon the same basis unless permission to change the basis is granted by the Commissioner.” The petitioner filed a separate return for the year 1922 and a consolidated return for the taxable year. No evidence was offered to show that the respondent ever authorized a change in the basis for reporting income. The filing of a separate return for the year 1922 constituted an election under the statute and the respondent did not err in declining to determine the petitioner’s taxes for 1923 on the basis of a consolidated return. Belvidere Lumber Co., 6 B. T. A. 84; Geneva Theatres, Inc., 15 B. T. A. 1073; and Alameda Investment Co. v. McLaughlin, 28 Fed. (2d) 81; affd., 33 Fed. (2d) 120.
Decision will be entered for the respondent. |
4,490,052 | 2020-01-17 22:02:10.191253+00 | Fossan | null | *445OPINION.
Van Fossan :
Eespondent determined deficiencies in tax, penalties, and interest for the several years as follows:
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When the proceeding was called for hearing no appearance was made by or on behalf of the petitioner. All material averments of fact that, if proven, might have supported petitioner’s allegations of error as to the correctness of the deficiencies being denied by respondent’s answer and no other facts appearing, we hold that petitioner has not sustained the burden of proving error and the deficiencies are approved.
Respondent determined penalties for filing delinquent returns for the years 1920 and 1922 and fraud penalties for 1923 and 1924.
As to the delinquency penalties petitioner admits filing delinquent returns for 1920 and 1922 and alleges the payment of delinquency penalties for such years. Returns, which are in evidence, bear date of November 6, 1923, and a stamp indicating the delinquency penalty of 25 per cent. In this situation the admissions and facts before us establish the correctness of respondent’s action in adding delinquency penalties to the deficiencies for 1920 and 1922.
There remains the issue of fraud as to the years 1923 and 1924, the statutory burden of proving which rested on the respondent. He relies on the admissions appearing in the pleadings and the tax returns which he introduced to support his findings.
Though the burden of proving fraud is placed on the Commissioner by section 907 (a) of the Revenue Act of 1928, obviously this does not mean that all the evidence in support thereof must be elicited from his witnesses or from documents which he presents. If, before respondent had introduced any evidence, the petitioner should admit a fraudulent filing with intent to evade tax, it would be a stilted adherence to the burden of proof rule that would require the Commissioner to adduce further or corroborative evidence. It would seem indisputable that we are entitled to consider all admitted facts appearing in the pleadings as being properly before us, whether they were originally averred by the petitioner or the respondent, and though no other evidence be introduced, if such facts are sufficient to establish an issue, to render decision accordingly.
In his petition petitioner avers, and in his answer respondent admits, that petitiQner engaged illegally in the wholesale liquor business *446during part of the period in question; that during the 1923 November term of the United States District Court at Wheeling, W. Va., he pleaded guilty to a charge of conspiring to violate the National Prohibition Act and was sentenced to serve sixteen months in the Atlanta penitentiary and pay a fine of $4,000; that about the same time he filed delinquent income-tax returns for the years 1920 to 1922, inclusive; that he was confined in Federal prison until after the close of 1924.
Petitioner also avers that he gave as complete information to the Commissioner on his returns for 1920-1922 as he could without incriminating himself and that if he had filed the returns on time and given all information asked for in the schedules he would have disclosed that the income was earned in the commission of crime. He alleges the same to be true of the 1923 return, and that he had no income from business for 1924 while confined in the Atlanta prison, as to #which year he filed what he alleges was a fair and honest return. These averments and allegations of petitioner are expressly denied by respondent.
The above are all of the material facts before us. The approval of a deficiency for failure of a petitioner to shoulder and carry the burden of proof does not establish as true the controverted facts alleged by one party and either denied or not admitted by the other. Thus, we are not at liberty to consider as part of the proof of the intent of petitioner the bank transactions, nor may we consider the allegations set forth in the preceding paragraph, which allegations were denied by respondent.
In his brief respondent’s counsel argues that “ the only conclusion that can be drawn from these admissions is that, the criminal conspiracy to defeat the National Prohibition Act and the evasion of the tax arising from income derived from this conspiracy were founded on the same state of mind in both instances, and that fraudulent concealment of profits was a natural corollary to overt acts committed in persistent violation of the National Prohibition Act.”
We do not find in the above facts sufficient basis of fact or fair inference to justify us in holding that petitioner filed false and fraudulent returns for 1923 and 1924, with intent to evade tax. Fraud must be established by clear and convincing evidence and here the evidence falls far short of that degree of proof.
The facts that petitioner was an admitted bootlegger, pleaded guilty to a crime in 1923 and served a sentence therefor, and meanwhile filed delinquent returns for other years do not prove that as to the years 1923 and 1924 he was guilty of fraudulent evasion of tax. We may entertain whatever suspicions we choose, or infer whatever probabilities our imaginations dictate, but to find a man *447guilty of fraud requires more than suspicion or mere probabilities-of dereliction. It requires evidence from which an intent to defraud and the fact of defrauding appear. Here the evidence on which respondent relies is inadequate to establish his case.
Decision will be entered -finding the deficiencies as determined by respondent, with penalties for delinquency for the years 19W and 19BB and disallowing the penalties for fraud for the years 19B3 and 19BI¡.. |
4,654,848 | 2021-01-27 07:15:03.848402+00 | null | http://www.search.txcourts.gov/RetrieveDocument.aspx?DocId=17969&Index=%5c%5c10%2e20%2e4%2e7%5cTamesIndexes%5ccoa05%5cOpinion | AFFIMRED and Opinion Filed January 20, 2021
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-19-00717-CV
F 1 CONSTRUCTION, INC., Appellant
V.
PHILLIP W. BANZ AND MARCOS GUTIERREZ, Appellee
On Appeal from the County Court at Law No. 4
Collin County, Texas
Trial Court Cause No. 004-01308-2018
MEMORANDUM OPINION
Before Justices Schenck, Smith, and Garcia
Opinion by Justice Garcia
This case involves the automatic exclusion of damages evidence for failure to
timely respond to discovery and a subsequent take-nothing judgment against
appellant. In three issues, appellant F1 Construction (“Construction”) argues the trial
court abused its discretion by awarding death penalty sanctions because there was
no evidence of bad faith and the court failed to consider less drastic measures.1 As
discussed below, we disagree, and affirm the trial court’s judgment.
1
Appellee has not filed a brief.
I. Background
Construction filed an Original Petition against defendants Phillip Banz and
Marcos Gutierrez (together, “Defendants”) on May 30, 2018. The petition alleged
that Construction entered into a contract with Defendants for plumbing work on six
projects. According to Construction, the work was not performed or was deficient.
Construction sought recovery of “actual or economic damages for all incomplete and
remedial work in excess of $25,000 . . . special or consequential damages for loss of
use permits, cancellation costs, and loss of goodwill in excess of $25,000,”
exemplary damages, and attorney’s fees based on claims for breach of contract,
fraudulent inducement, negligent misrepresentation, and common law fraud.
The Defendants were served and answered. Gutierrez’s answer included a
Rule 194 request for disclosure in the body of the pleading. Banz’s pleading was
entitled “Original Answer, Rule 193.7 Notice, and Request for Disclosure,” and also
made the Rule 194 request in the body of the pleading.
The case was dismissed for want of prosecution but was subsequently
reinstated. Thereafter, the case was set for trial but continued pursuant to a joint
motion for continuance.
The case was ultimately called to trial on June 6, 2019. The day before trial,
Gutierrez filed an objection to and motion to exclude Construction’s evidence of
damages because Construction never responded to the Rule 194 requests for
–2–
disclosure. After receiving the motion, at approximately 4:00 p.m., Construction
provided Defendants with some damages evidence.2
The court considered the motion to exclude before trial began. Defendants
argued that Construction failed to disclose the amount and method of calculating
damages and that Rule 193.6 required exclusion of the evidence. Counsel for
Construction argued that he wasn’t aware of the disclosure requests until the motion
was filed and his failure to respond was inadvertent.
The trial court granted the motion and excluded the evidence, and
Construction made a bill of exception. The trial court entered a take-nothing
judgment against Construction and, at Construction’s request, made findings of fact
and conclusions of law.3
II. Analysis
Construction’s three issues seek to characterize the exclusion of the evidence
as an improper death penalty sanction under TEX. R. CIV. P. 215. To this end, it
argues that the exclusion of the evidence constituted a death penalty sanction
because it was case-determinative, and the sanction was unjust because the record
does not show the court considered a lesser sanction. It further argues that the court
erred by granting Rule 215 relief as to Banz because only Gutierrez’s motion was in
2
The record is not entirely clear about what information was provided, but it appears there was a
damages calculation and a previously undisclosed witness.
3
The findings and conclusions generally pertain to the final judgment, and do not include particular
findings on the motion to exclude.
–3–
writing, and Banz made his motion orally, thereby depriving Construction of the
requisite Rule 215 notice and a hearing.
Notwithstanding Construction’s characterization, this is not a Rule 215
sanctions case. Sanctions for discovery abuse under Rule 215 are discretionary. See
TEX. R. CIV. P. 215; TransAmerican Natural Gas Corp. v. Powell,
811 S.W.2d 913
,
917 (Tex. 1991) (orig. proceeding); see also In re First Transit, Inc.,
499 S.W.3d 584
, 591 (Tex. App.—Houston [14th Dist.] 2016) (orig. proceeding) (discretionary
sanction under Rule 215 must be just).4 The Rule 193.6 penalty, however, is
mandatory. See TEX. R. CIV. P. 193.6; Cornejo v. Jones, No. 05-12-01256-CV,
2014 WL 316607
, at *3, (Tex. App.—Dallas Jan. 29, 2014, no pet.) (mem. op.) (stating
that per Rule 193.6, the trial court possesses no discretion and must exclude evidence
not timely provided, amended, or supplemented in response).5 Because Rule 193.6’s
sanction is automatic and not discretionary, the trial court’s imposition of the
required sanction is not reviewed under a TransAmerican death penalty sanction
analysis. White v. Perez, No. 02-09-251-CV,
2010 WL 87469
, at *2 (Tex. App.—
4
A trial court may sanction a party for failing to comply with discovery requests or orders. See TEX.
R. CIV. P. 215. Among other things, permissible sanctions include disallowing further discovery, striking
pleadings or parts thereof, prohibiting the disobedient party from introducing designated matters into
evidence, dismissing the action with or without prejudice, rendering judgment by default, and requiring the
disobedient party or the disobedient party’s attorney to pay reasonable expenses relating to the discovery
abuse. TEX. R. CIV. P. 215.2(b). A death-penalty sanction is any sanction that adjudicates a claim and
precludes the presentation of the claim on the merits. Braden v. Downey,
811 S.W.2d 922
, 929 (Tex. 1991).
5
The court does have the discretion under Rule 193.6 (c) to grant a continuance to allow additional
discovery, but neither party requested a continuance. See TEX. R. CIV. P. 193.6(c).
–4–
Fort Worth Jan. 7, 2010, pet. denied) (mem. op.) (citing TransAmerican, 811 S.W.2d
at 917).
The court did not impose a Rule 215 discretionary sanction here. There was
no Rule 215 motion for sanctions, nor was Rule 215 mentioned or argued at the
hearing or in the court’s findings. Instead, Defendants moved for the exclusion of
evidence under Rule 193, and this is the rule the court considered and applied. We
therefore consider whether the trial court’s application of Rule 193 was in error.
Rule 193.6 requires the exclusion of evidence and witnesses that are not
timely disclosed in response to discovery requests. TEX. R. CIV. P. 193.6(a). The Rule
“is mandatory, and the penalty—exclusion of evidence—is automatic, absent a
showing of: (1) good cause or (2) lack of unfair surprise or (3) unfair prejudice.”
Lopez v. La Madeleine of Tex., Inc.,
200 S.W.3d 854
, 860 (Tex. App.—Dallas 2006,
no pet.).
The burden of establishing good cause or lack of unfair surprise or unfair
prejudice is on the party seeking to introduce the evidence. TEX. R. CIV. P. 193.6(a).
The good cause exception “allows a trial judge to excuse a party’s failure to comply
with discovery obligations in difficult or impossible circumstances.” PopCap
Games, Inc. v. MumboJumbo, LLC,
350 S.W.3d 699
, 718 (Tex. App.—Dallas 2011,
pet. denied). Inadvertence, lack of surprise, or the uniqueness of the offered
evidence, however, do not constitute good cause.
Id.
If Construction failed to meet
this burden, then under rule 193.6, the trial court’s decision to exclude the evidence
–5–
should be affirmed. See Cunningham v. Columbia/St. David’s Healthcare Sys., L.P.,
185 S.W.3d 7
, 13 (Tex. App.—Austin 2005, no pet.).
We review the trial court’s decision for an abuse of discretion. VSDH
Vaquero Venture, LTD. v. Gross, No. 05-19-00217-CV,
2020 WL 3248481
, at *4
(Tex. App.—Dallas June 16, 2020, no pet.) (mem. op.). The general test for abuse
of discretion is whether the trial court acted without regard to any guiding rules or
principles. Cire v. Cummings,
134 S.W.3d 835
, 838–39 (Tex. 2004). This occurs
when either (1) the trial court fails to analyze or apply the law correctly, or (2) with
regard to factual issues or matters committed to its discretion, the trial court could
reasonably only reach one decision and failed to do so. Jaster-Quintanilla & Assocs.,
Inc. v. Prouty,
549 S.W.3d 183
, 188 (Tex. App.—Austin 2018, no pet).
The purposes of Rule 193.6 are threefold: (i) to promote responsible
assessment of settlement, (ii) to prevent trial by ambush, and (iii) to give the other
party the opportunity to prepare rebuttal to expert testimony. In re D.W.G.K.,
558 S.W.3d 671
, 680 (Tex. App.—Texarkana 2018, pet. denied). Accordingly, in order
to establish the absence of unfair surprise or prejudice, the party seeking to call an
untimely disclosed witness or introduce untimely disclosed evidence must establish
that the other party had enough evidence to reasonably assess settlement, to avoid
trial by ambush, and to prepare rebuttal to expert testimony.
Id.
Here, it is undisputed that the information was not timely provided. The
requests for disclosure were outstanding for almost a year and no information was
–6–
provided until the eve of trial. Construction acknowledged that its failure to respond
was inadvertent. Although Construction argued that exclusion was a harsh penalty,
it presented no evidence that it would have been difficult or impossible for it to have
timely disclosed the evidence. Nor does Construction argue on appeal that there is
evidence of good cause in the record.
Likewise, Construction offered no evidence to demonstrate the absence of
unfair surprise or prejudice. Indeed, there is nothing to suggest that Defendants had
enough evidence to reasonably assess settlement, avoid trial by ambush, or prepare
rebuttal to expert testimony. See In re D.W.G.K., 558 S.W.3d at 680.
In addition, Construction’s argument that Banz’s oral motion was
inappropriate because Rule 215 sanctions require notice and a hearing is misplaced.
Banz did not request discretionary sanctions for discovery abuse under Rule 215.
Instead, Banz simply stated orally that he joined Gutierrez’s written request for
exclusion under Rule 193. We are aware of no authority, nor does Construction
provide any, precluding the oral presentation of or joining in such a motion.
Because Construction did not meet its burden to show good cause or lack of
surprise or prejudice—an exception to Rule 193’s automatic, mandatory exclusion
penalty—the trial court did not abuse its discretion by excluding the untimely
disclosed evidence.
–7–
We resolve Construction’s issues against it and affirm the trial court’s
judgment.
/Dennise Garcia/
DENNISE GARCIA
JUSTICE
190717F.P05
–8–
S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
F 1 CONSTRUCTION, INC., On Appeal from the County Court at
Appellant Law No. 4, Collin County, Texas
Trial Court Cause No. 004-01308-
No. 05-19-00717-CV V. 2018.
Opinion delivered by Justice Garcia.
PHILLIP W. BANZ AND MARCOS Justices Schenck and Smith
GUTIERREZ, Appellee participating.
In accordance with this Court’s opinion of this date, the judgment of the trial
court is AFFIRMED.
It is ORDERED that appellee PHILLIP W. BANZ AND MARCOS
GUTIERREZ recover their costs of this appeal from appellant F 1
CONSTRUCTION, INC..
Judgment entered January 20, 2021.
–9– |
4,639,330 | 2020-12-03 20:08:43.467987+00 | null | http://www.courts.state.ny.us/reporter/3dseries/2020/2020_07302.htm | People v Allen (2020 NY Slip Op 07302)
People v Allen
2020 NY Slip Op 07302
Decided on December 03, 2020
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided and Entered: December 03, 2020
Before: Renwick, J.P., Manzanet-Daniels, Mazzarelli, Singh, Scarpulla, JJ.
Ind No. 1019/16 1019/16 Appeal No. 12517 Case No. 2018-4610
[*1]The People of the State of New York, Respondent,
v
Corey Allen, Defendant-Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Claudia Trupp of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Andrew E. Seewald of counsel), for respondent.
Judgment, Supreme Court, New York County (Bonnie G. Wittner, J. at jury trial; Mark Dwyer, J. at resettlement hearing and sentencing), rendered April 8, 2018, convicting defendant of two counts of robbery in the second degree, and sentencing him, as a persistent violent felony offender, to concurrent terms of 17 years to life, unanimously affirmed.
The verdict was based on legally sufficient evidence and was not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348-349 [2007]). There is no basis for disturbing the jury's credibility determinations. As we observed on a codefendant's appeal (People v Bryant, 180 AD3d 442 [1st Dept 2020], lv denied 35 NY3d 968 [2020]), the evidence [*2]established that the two defendants acted in concert with each other. In particular, the evidence supports the conclusion that when defendant assaulted the victim, he did so for the purpose of aiding the codefendant in taking the victim's property.
The court providently declined to declare a mistrial when the deliberating jury issued a note stating that it was unable to reach a unanimous verdict. Instead, the court gave an appropriate instruction that encouraged the jury to continue deliberating. This was the jury's only deadlock note, and there was no indication that further deliberations would be fruitless (see Matter of Plummer v Rothwax, 63 NY2d 243, 252 [1984]), Defendant's argument that the continuation of deliberations was coercive under the circumstances is speculative. Defendant did not preserve his challenge to the content of the court's response to the deadlock note, and we decline to review it in the interest of justice. As an alternative holding, we find no basis for reversal (see People v Morgan, 28 NY3d 516, 522 [2016]).
Most of defendant's ineffective assistance of counsel claims are unreviewable on direct appeal because they involve matters not reflected in, or fully explained by, the record (see People v Rivera, 71 NY2d 705, 709 [1988]; People v Love, 57 NY2d 998 [1982]). Accordingly, since defendant has not made a CPL 440.10 motion, the merits of the ineffectiveness claims, except the claim that defense counsel deferred to defendant whether to seek a jury charge on a lesser included offense, may not be addressed on appeal.
Defendant received ineffective assistance of counsel when defense counsel deferred to defendant whether to seek a jury charge on a lesser included offense (see People v Colville, 20 NY3d 20, 23 [2012] [Defendant denied his right to counsel when court permitted him, rather than defense counsel, to decide whether to request a jury charge on a lesser included offense]). However, the error was harmless beyond a reasonable doubt (see People v Crimmins, 36 NY2d 230, 238 [1975]; cf. People v Martin, 59 NY2d 704, 705 [1983]). Viewing the evidence in the light most favorable to defendant, there was no reasonable view of the evidence that defendant committed third-degree, but not second-degree, robbery, i.e., that he committed the robbery without the involvement of a second robber or did not cause the victim physical injury (see People v Camara, 44 AD3d 492, 492 [1st Dept 2007], lv denied 9 NY3d 1031 [2008]).
Defendant did not preserve his argument that the court improperly interfered with the trial, and displayed hostility toward him and his counsel. As an alternative holding, we find that nothing in the court's conduct was so egregious as to deprive defendant of a fair trial (see generally People v Moulton, 43 NY2d 944, 945 [1978]; People v Melendez, 31 AD3d 186, 196 [1st Dept 2006], lv denied 7 NY3d 927 [2006]).
Defendant's challenges to the receipt in evidence of the victim's 911 call, and to the court's response to a jury note requesting definitions of the crimes charged, are generally similar to arguments this Court rejected on the codefendant's appeal in our respective alternative holdings on these issues (Bryant, 180 AD3d at 442). We find no reason to reach a different result here.
The court presiding at the resettlement hearing providently exercised its discretion in determining that testimony from the trial Justice (who had retired while the resettlement issue was pending) concerning her recollection of a disputed portion of the trial transcript was unnecessary (see generally People v Bethune, 29 NY3d 539, 541 [2017]; People v Alomar, 93 NY2d 239, 247 [1999]). The trial Justice's recollection of the disputed colloquy was already in the record. In any event, even if the actual record is as defendant claims, rather than as the resettlement court found, there would be no basis for reversal.THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: December 3, 2020 |
4,639,331 | 2020-12-03 20:08:43.774468+00 | null | http://www.courts.state.ny.us/reporter/3dseries/2020/2020_07291.htm | Pelepelin v City of New York (2020 NY Slip Op 07291)
Pelepelin v City of New York
2020 NY Slip Op 07291
Decided on December 03, 2020
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided and Entered: December 03, 2020
Before: Renwick, J.P., Manzanet-Daniels, Mazzarelli, Singh, Scarpulla, JJ.
Index No. 154246/18 Appeal No. 12535 Case No. 2019-5743
[*1]Alex Pelepelin, Plaintiff-Appellant,
v
The City of New York et al., Defendants-Respondents.
Ballon Stoll Bader & Nadler, P.C., New York (Marshall B. Bellovin of counsel), for appellant.
James E. Johnson, Corporation Counsel, New York (Zachary S. Shapiro of counsel), for respondents.
Order, Supreme Court, New York County (Julio Rodriguez, III, J.), entered July 1, 2019, which granted defendants' CPLR 3211(a) motion to dismiss the first amended complaint, unanimously modified, on the law, to deny the motion as to the first amended complaint's causes of action for failure to promote under the New York State and City Human Rights Laws (HRLs) and retaliation under the City HRL, and otherwise affirmed, without costs.
Born in Russia in 1967, plaintiff was a detective with over 20 years of experience, assigned in 2014 to the New York City Police Department's Executive Protection Unit. Plaintiff alleges that, on account of his age and national origin, he was subjected to a series of [*2]assignments to less prestigious positions, amounting to functional demotion and undermining his promotion prospects, culminating with assignment to uniformed guard duty at the gates of City Hall.
Plaintiff's allegations in support of his causes of action for employment discrimination under the State and City HRLs fail to adequately plead that the alleged adverse or disadvantageous employment actions were made under circumstances supporting an inference of discrimination (see Matter of Local 621 v New York City Dept. of Transp., 178 AD3d 78, 81 [1st Dept 2019], lv dismissed 35 NY3d 1106 [2020]; Harrington v City of New York, 157 AD3d 582, 584 [1st Dept 2018]). Plaintiff alleges that defendants made "derogatory comments" to him. The only derogatory remarks identified by plaintiff, however (for instance, that he was "too intimidating for the Mayor's family"), do not evince any ageist or anti-Russian bias (see Matter of Tenenbein v New York City Dept. of Educ., 178 AD3d 510, 511 [1st Dept 2019]; Serdans v New York & Presbyt. Hosp., 112 AD3d 449, 450 [1st Dept 2013]).
Plaintiff's allegation that other, younger, non-Russian detectives did not receive similarly unfavorable assignments is similarly unavailing. Plaintiff alleges that he was the only Russian officer in the EPU. Hence, without some other evidence of anti-Russian bias, it is unreasonable to infer that any actions taken against him were motivated by discriminatory animus, since, by definition, he will always be the only Russian impacted by any employment action directed at him. Nor do plaintiff's bare allegations that younger officers did not receive disadvantageous assignments suffice to support an inference of age-related bias (see Massaro v Department of Educ. of the City of N.Y., 121 AD3d 569, 570 [1st Dept 2014], lv denied 26 NY3d 903 [2015]; Askin v Department of Educ. of City of N.Y., 110 AD3d 621, 622 [1st Dept 2013]). In fact, plaintiff does not allege that no younger officer received similarly disadvantageous assignments. Accordingly, plaintiff has failed to plead a claim for employment discrimination under the State or City HRLs.
The lack of discriminatory animus is likewise fatal to plaintiffs causes of action for hostile work environment (see Llanos v City of New York, 129 AD3d 620, 620 [1st Dept 2015]; Askin, 110 AD3d at 622).
In support of his causes of action for failure to promote, plaintiff alleges that two non-Russian, younger, and less qualified detectives — whom he specifically names — were promoted ahead of him, while he remains unpromoted. While plaintiff does not in the complaint flesh out some details which will be material — such as the precise age of the detectives promoted ahead of him — that does not vitiate his pleading. Plaintiff has amply met his pleading burden by naming as a comparator a specific individual whose details can be particularly verified during discovery. Nor was it necessary for plaintiff to allege that he applied for promotion (see Mejia v Roosevelt Is. Med. Assoc., 95 AD3d 570, 572 [1st Dept 2012], lv dismissed 20 NY3d 1045 [2013]), since he has alleged that promotions were typically made unannounced and unsolicited (see Uwoghiren v City of New York, 148 AD3d 457, 458 [1st Dept 2017]). Accordingly, plaintiff has stated claims for failure to promote under the State and City HRLs (see Petrosino v Bell Atl., 385 F3d 210, 226 [2d Cir 2004]; Leader v City of New York, 2020 NY Slip Op 30807[U], at 19-20 [Sup Ct, NY County 2020]).
In support of his causes of action for retaliation under the State and City HRLs, plaintiff alleges that, in October 2016, he emailed defendant Inspector Howard Redmond to complain that a younger, non-Russian, less senior, and less qualified, detective (whom plaintiff names in the complaint), had been promoted ahead of him. Inspector Redmond responded by having plaintiff, [*3]a detective with over 20 years of plainclothes experience, assigned to uniformed guard duty at the gates of City Hall.
The reassignment to guard duty, without any change in pay, did not by itself constitute an adverse employment action for purposes of the State HRL (see Ragoo v New York City Taxi & Limousine Commn., 132 AD3d 562, 562 [1st Dept 2015]; Gaffney v City of New York, 101 AD3d 410, 411 [1st Dept 2012], lv denied 21 NY3d 858 [2013]. It did, however, constitute a disadvantageous action for purposes of the City HRL. Plaintiff's email to Redmond constituted a protected activity, and a causal connection can be inferred from close temporal proximity of the immediate reassignment (see Krebaum v Capital One, N.A., 138 AD3d 528, 528-529 [1st Dept 2016]). Plaintiff has accordingly adequately pled a claim for retaliation under the City HRL (see Harrington, 157 AD3d at 585; Fletcher v The Dakota, Inc., 99 AD3d 43, 51-52 [1st Dept 2012]).THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: December 3, 2020 |
4,639,332 | 2020-12-03 20:08:44.087049+00 | null | http://www.courts.state.ny.us/reporter/3dseries/2020/2020_07303.htm | POFI Constr. Corp. v Rutgers Cas. Ins. Co. (2020 NY Slip Op 07303)
POFI Constr. Corp. v Rutgers Cas. Ins. Co.
2020 NY Slip Op 07303
Decided on December 03, 2020
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided and Entered: December 03, 2020
Before: Renwick, J.P., Manzanet-Daniels, Mazzarelli, Singh, Scarpulla, JJ.
Index No. 653019/16 Appeal No. 12525 Case No. 2020-02759
[*1]POFI Construction Corp., Plaintiff-Respondent,
v
Rutgers Casualty Insurance Company, Defendant-Appellant, Sky VL Construction Corp., Defendant.
Miranda Slone Sklarin Verveniotis, LLP, Mineola (Steven Verveniotis of counsel), for appellant.
Melito & Adolfsen P.C., New York (Michael F. Panayotou of counsel), for respondent.
Judgment, Supreme Court, New York County (Gerald Lebovits, J.), entered November 27, 2019, declaring that plaintiff is an additional insured under an insurance policy issued by defendant Rutgers Casualty Insurance Company to defendant Sky VL Construction Corp. and is therefore entitled to a primary non-contributory defense and indemnity in the underlying Labor Law action, unanimously affirmed, with costs.
In this action, plaintiff Pofi Construction Corp. (Pofi) seeks additional insured coverage for bodily injuries, under a policy issued by defendant Rutgers Casualty Insurance Company [*2](Rutgers) to Pofi's subcontractor, defendant Sky VL Construction Corp. The plaintiff in the underlying personal injury action was injured while performing work for his employer, defendant Sky VL Construction Corp. Pofi, as the general contractor on a repair and maintenance project for the subject building in Manhattan, subcontracted with Sky VL for restoration of the exterior faÇade of the building.
The motion court correctly found that plaintiff is an additional insured under the policy that defendant Rutgers issued to defendant Sky VI. The plaintiff in the underlying personal injury action alleged that he was injured while performing work on the premises; thus, his injury arose out of the subcontractor's ongoing operations on the construction project. Indeed, the injured worker testified that he was inspecting the work at the time he was injured. "[T]he focus of the inquiry 'is not on the precise cause of the accident but the general nature of the operation in the course of which the injury was sustained'" (Regal Constr. Corp. v National Union Fire Ins. Co. of Pittsburgh, PA, 15 NY3d 34, 38 [2010], quoting Worth Constr. Co., Inc. v Admiral Ins. Co., 10 NY3d 411, 416 [2008]). Plaintiff was not required to obtain a judgment against the subcontractor before bringing this action (see Insurance Law § 3420[a][2], [b][2]; compare Lang v Hanover Ins. Co., 3 NY3d 350 [2004] [dismissing injured party's complaint against tortfeasor's insurer for failure to obtain judgment against tortfeasor]).
The court also correctly found that Rutgers waived any reliance on the asserted coverage exclusions, as it sent notice only to plaintiff's insurer and not directly to plaintiff, the additional insured (see Sierra v 4401 Sunset Park, LLC, 24 NY3d 514, 518 [2014]). "'[T]he obligation imposed by the Insurance Law is to give timely notice to the mutual insureds . . . not to . . . another insurer'" (id. at 519; see Insurance Law § 3420[d]). Contrary to Rutgers's contention, the letter it sent to its insured, copying plaintiff, almost 21 months after the original tender and 11 months after the final tender, was not sent within a reasonable time, as Rutgers proffered no excuse for the delay (see First Fin. Ins. Co. v Jetco Contr. Corp., 1 NY3d 64, 68-69 [2003]).
In any event, none of the asserted exclusions apply. Plaintiff is not seeking coverage for liability assumed by contract (see e.g. Cucinotta v City of New York, 68 AD3d 682 [1st Dept 2009]). The injured worker was not plaintiff's employee (see Greaves v Public Serv. Mut. Ins. Co., 5 NY2d 120, 123-124 [1959]; see also Admiral Ins. Co. v Joy Contrs., Inc., 19 NY3d 448, 459-460 [2012]). Rutgers did not "demonstrate that the allegations of the [underlying] complaint can be interpreted only to exclude coverage" based on the Prior Work exclusion (Town of Massena v Healthcare Underwriters Mut. Ins. Co., 98 NY2d 435, 444 [2002]). There is no evidence that the subcontractor commenced the work prior to the effective date of the insurance policy.
The court correctly declined to dismiss the claims against the subcontractor. Since the attorneys for Rutgers do not represent the subcontractor in this action, they have no standing to seek relief on its behalf (Lipstick, Ltd. v Grupo Tribasa, S.A. de C.V., 304 AD2d 482 [1st Dept 2003]).
We have considered Rutgers's remaining contentions and find them unavailing.THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: December 3, 2020 |
4,639,333 | 2020-12-03 20:08:44.313035+00 | null | http://www.courts.state.ny.us/reporter/3dseries/2020/2020_07287.htm | Mirza v Tribeca Auto. Inc. (2020 NY Slip Op 07287)
Mirza v Tribeca Auto. Inc.
2020 NY Slip Op 07287
Decided on December 03, 2020
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided and Entered: December 03, 2020
Before: Renwick, J.P., Manzanet-Daniels, Mazzarelli, Singh, Scarpulla, JJ.
Index No. 33797/18E Appeal No. 12518 Case No. 2020-02551
[*1]Ali Mirza, Plaintiff-Respondent,
v
Tribeca Automotive Inc. et al., Defendants-Appellants.
O'Connor Reed Orlando LLP, Port Chester (Jerri A. DeCamp of counsel), for appellants.
Pollack, Pollack, Isaac & DeCicco, LLP, New York (Brian J. Isaac of counsel), for respondent.
Order, Supreme Court, Bronx County (Shawndya L. Simpson, J.), entered September 4, 2019, which granted plaintiff's motion for partial summary judgment on the issue of liability, unanimously affirmed, without costs.
In this rear-end collision case, defendants failed to raise an issue of fact as to an adequate, nonnegligent explanation for the accident (Urena v GVC Ltd., 160 AD3d 467 [1st Dept 2018]). Defendant driver Lajara-Lajara had the obligation to maintain a safe distance between himself and the cars in front of him so as to avoid collisions with stopped vehicles (Vehicle and Traffic Law § 1129[a]; LaMasa v Bachman, 56 AD3d 340 [1st Dept 2008]). While [*2]defendants contended that plaintiff's vehicle came to a sudden stop in heavy traffic on the Cross Bronx Expressway, and that defendant driver could not see that traffic had stopped around a bend in the road, that alone does constitute a non-negligent explanation (see Morales v Consolidated Bus Tr., Inc., 167 AD3d 457, 458 [1st Dept 2018]; Bajrami v Twinkle Cab Corp., 147 AD3d 649 [1st Dept 2017]). The circumstances did not constitute a sudden, unanticipated emergency (see Renteria v Simakov, 109 AD3d 749, 750 [1st Dept 2013]).
Additionally, the motion for summary judgment was not premature. Defendants did not identify any evidence in plaintiff's possession that would support a non negligent cause for the rear-end collision. Defendant driver did not dispute that his truck rear-ended plaintiff's vehicle after plaintiff came to a stop in heavy traffic, and defendants were in possession of all of relevant information as to why he did so (see Rodriguez v Garcia, 154 AD3d 581, 581 [1st Dept 2017]; Castaneda v DO&CO N.Y. Catering, Inc., 144 AD3d 407, 407 [1st Dept 2016]). Defendants' speculation that discovery might reveal what driving maneuvers plaintiff performed and the condition of plaintiff's car is insufficient to deny the motion for partial summary judgment (Tavarez v Herrasme, 140 AD3d 453, 454 [1st Dept 2016]). THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: December 3, 2020 |
4,639,334 | 2020-12-03 20:08:44.543359+00 | null | http://www.courts.state.ny.us/reporter/3dseries/2020/2020_07286.htm | Miller v Livanis (2020 NY Slip Op 07286)
Miller v Livanis
2020 NY Slip Op 07286
Decided on December 03, 2020
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided and Entered: December 03, 2020
Before: Friedman, J.P., Kapnick, Gesmer, Kern, Shulman, JJ.
Index No. 112216/09 Appeal No. 12542 Case No. 2019-04441
[*1]Adam Miller, Plaintiff-Appellant,
v
Olga Livanis, etc., Defendant-Respondent.
Wolin & Wolin, Jericho (Alan E. Wolin of counsel), for appellant.
James E. Johnson, Corporation Counsel, New York (MacKenzie Fillow of counsel), for respondent.
Order, Supreme Court, New York County (Lyle E. Frank, Jr.), entered July 31, 2019, which granted defendant's summary judgment motion to dismiss the complaint, unanimously affirmed, without costs.
Plaintiff's action arose out of the same set of circumstances as his prior CPLR article 78 proceeding, and thus was barred on the grounds of res judicata(Anderson v New York City Dept. of Educ., 93 AD3d 538, 538 [1st Dept 2012], lv denied 20 NY3d 852 [2012]). Both here and in the article 78 proceeding, plaintiff attacked Livanis's decision to give him a "U" rating and her refusal to allow him to rescind his resignation. In a similar vein, plaintiff was also precluded from challenging Livanis's actions in this action under the doctrine of collateral estoppel. When [*2]a party has been afforded a full and fair opportunity to litigate an issue and loses, collateral estoppel will bar him from litigating the issue a second time (Kaufman v Eli Lilly & Co., 65 NY2d 449, 455 [1985]).
The IAS court also properly granted summary judgment to Livanis on the merits. Plaintiff does not have a claim for tortious interference with contract, because, among other reasons, he has not properly alleged that he was party to a contract with a third party (Kronos, Inc. v AVX Corp., 81 NY2d 90, 94 [1993]). The IAS court properly found that the collective bargaining agreement could not serve as the basis for a tortious interference with contract claim (Britt v City of N.Y., 151 AD3d 606, 607 [1st Dept 2017]; see also Berlyn v Board of Educ. of E. Meadow Union Free School Dist., 80 AD2d 572, 573 [2d Dept 1981], affd 55 NY2d 912 [1982]).
The Court also properly dismissed plaintiff's claim for tortious interference with prospective business relations. Plaintiff is unable to show that Livanis directly interfered with any prospective third-party agreement through "wrongful means" (Kickertz v New York Univ., 110 AD3d 268, 275 [1st Dept 2013]). Nor can he establish that he would have been hired by a third party "but for" Livanis's conduct (Murphy v City of New York, 59 AD3d 301, 301 [1st Dept 2009]). While plaintiff argues that Livanis did interfere, by directly contacting the Principal's Program at Hunter College so that he would lose an opportunity to become an administrator, such vague aspirations of future employment are insufficient to meet this standard (id.).
We have considered plaintiff's remaining contentions, and find them unavailing.THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: December 3, 2020 |
4,639,335 | 2020-12-03 20:08:44.858672+00 | null | http://www.courts.state.ny.us/reporter/3dseries/2020/2020_07285.htm | Metropolitan Bank & Trust Co. v Lopez (2020 NY Slip Op 07285)
Metropolitan Bank & Trust Co. v Lopez
2020 NY Slip Op 07285
Decided on December 03, 2020
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided and Entered: December 03, 2020
Before: Friedman, J.P., Kapnick, Gesmer, Kern, Shulman, JJ.
Index No. 159395/17 Appeal No. 12552 Case No. 2020-01472
[*1]Metropolitan Bank & Trust Co., Plaintiff-Appellant,
v
Ma. Victoria "Marivic" S. Lopez, et al., Defendants, Maria Sta. Ana Lopez, Now Known as Lorainne Marie S. Lopez Lannon, Defendant-Respondent.
Pavia & Harcourt LLP, New York (Brandon C. Sherman of counsel), for appellant.
The Law Office of Thomas M. Mullaney, New York (Thomas M. Mullaney of counsel), for respondent.
Order, Supreme Court, New York County (Doris Ling-Cohan, J.), entered on or about January 28, 2020, which, inter alia, granted the motion of defendant Maria Sta. Ana Lopez, now known as Lorainne Marie S. Lopez Lannon (Lannon) to dismiss the complaint as against her, and to cancel the notice of pendency filed by plaintiff, unanimously modified, on the law, the motion denied insofar as it sought dismissal of the causes of action for unjust enrichment and constructive trust as against Lannon and the cancellation of the notice of pendency, and otherwise affirmed, without costs.
[*2] Plaintiff Metropolitan Bank & Trust Co. (the Bank) is a bank located and organized in the Philippines, and defendant Lannon is the daughter of codefendants Marivic Lopez (Marivic) and Lorenzo Villegas Lopez (Lorenzo). According to the complaint, Marivic embezzled millions of dollars from the Bank over the course of more than 15 years, using the money to purchase property in this country and abroad in the names of Lorenzo and Lannon, who are alleged, upon information and belief, to have "kn[own] or had reason to know that the . . . [p]roperty was purchased with the proceeds of [Marivic's] criminal activity." Following Marivic's arrest, the Bank commenced this action to recover against Marivic, Villegas Lopez, and Lannon, and Lannon moved to dismiss the complaint as against her for failure to state a cause of action.
The court properly dismissed the claim sounding in conversion. "[A]n action for conversion of money may be made out where there is a specific, identifiable fund and an obligation to return or otherwise treat in a particular manner the specific fund in question" (Thys v Fortis Sec. LLC, 74 AD3d 546, 547 [1st Dept 2010] [internal quotation marks omitted]). The Bank has failed to identify a specific fund of money held by Lannon, other than to allege she received unspecified embezzled funds from Marivic.
Contrary to the view of the motion court, the Bank's complaint sufficiently pleads a cause of action for unjust enrichment against Lannon. "It is well established that to successfully plead unjust enrichment a plaintiff must allege that (1) the other party was enriched, (2) at that party's expense, and (3) that it is against equity and good conscience to permit the other party to retain what is sought to be recovered" (Philips Intl. Invs., LLC v Pektor, 117 AD3d 1, 7 [1st Dept 2014] [internal quotation marks and brackets omitted], quoting Georgia Malone & Co., Inc. v Rieder, 19 NY3d 511, 516 [2012]). While the Court of Appeals cautioned in Georgia Malone that an unjust enrichment claim will not lie if the alleged connection between the parties is "too attenuated" (id. at 517), the Court of Appeals has never held that such a claim will not lie against one who knowingly receives, as a gratuitous donee, the proceeds of criminal wrongdoing, as Lannon is alleged to have done here. Whether such allegations are true cannot be determined on a motion addressed to the pleadings.
Significantly, in affirming the dismissal of the unjust enrichment claim in Georgia Malone, the Court of Appeals emphasized that the defendant in that case was, based on the allegations of the complaint, a bona fide purchaser for value (id. at 519). Specifically, the defendant in Georgia Malone (Rosewood) was a broker that allegedly had earned a commission as the result of purchasing confidential due diligence materials prepared by the plaintiff, a rival broker that had never been compensated for its work in preparing the materials. The former client for which the plaintiff had prepared the due diligence materials sold the file to Rosewood in violation of the client's contract with the plaintiff. The Court of Appeals noted that Rosewood apparently "fit the criteria of a good-faith purchaser for value" because the complaint alleged that "Rosewood paid . . . for the due diligence files" but "fail[ed] to allege that Rosewood was aware of the wrongfulness of . . . [the] actions" of the plaintiff's former client in selling the materials (id.). While the Court of Appeals further opined that the Georgia Malone complaint did not allege a sufficient connection between the parties to support an unjust enrichment claim "regardless of whether Rosewood was a good-faith purchaser of the due diligence materials" (id.), that case did not involve, as does this one, enrichment arising from the gratuitous transfer of the proceeds of criminal wrongdoing of which the unjustly enriched party was alleged to have been aware at the time of the transfer. Allowing an unjust enrichment claim against a gratuitous donee of property that the donee knows, or has reason to know, to be the proceeds of crime will [*3]not "impose a burdensome obligation in commercial transactions" (id.), the concern cited by the Court of Appeals in affirming the dismissal of the unjust enrichment claim in Georgia Malone, which, we emphasize, was based on a commercial transfer that was merely a breach of contract.
Since the Bank has stated a cause of action against Lannon for unjust enrichment, and the complaint further alleges that the funds embezzled by Marivic were used to purchase real property in the City of New York and elsewhere in Lannon's name, the Bank's cause of action for the imposition of a constructive trust on such real property is legally sufficient (see Simonds v Simonds, 45 NY2d 233, 241 [1978] [the equitable remedy of a constructive trust is imposed "(w)hen property has been acquired in such circumstances that the holder of the legal title may not in equity and good conscience retain the beneficial interest," and "(m)ore precise definitions of a constructive trust have been termed inadequate," since courts "reserve[] freedom to apply this remedy to whatever knavery human ingenuity can invent"] [internal quotation marks omitted]; Robinson v Day, 103 AD3d 584, 587 [1st Dept 2013]). Further, the motion should have been denied insofar as it sought cancellation of the notice of pendency filed against the real property in the City of New York upon which the Bank seeks to impose a constructive trust (see Don v Singer, 73 AD3d 583, 583 [1st Dept 2010] [a cause of action for imposition of a constructive trust "affects the title to, or the possession, use or enjoyment of real property"] [internal quotation marks omitted]).
The cause of action for an equitable accounting was correctly dismissed. "An equitable accounting involves a remedy designed to require a person in possession of financial records to produce them, demonstrate how money was expended and return pilfered funds in his or her possession" (Hall v Louis, 184 AD3d 437, 438-439 [1st Dept 2020] [internal quotation marks omitted]). The elements include a fiduciary or confidential relationship, money entrusted to the defendant imposing the burden of an accounting, the absence of a legal remedy, and in some cases a demand and refusal (Matsumura v Benihana Natl. Corp., 2007 WL 1489758, *4, 2007 US Dist LEXIS 37376, *12-13 [SD NY 2007]). The Bank's complaint alleges none of these things with respect to Lannon.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: December 3, 2020 |
4,639,336 | 2020-12-03 20:08:45.094227+00 | null | http://www.courts.state.ny.us/reporter/3dseries/2020/2020_07284.htm | Meija-Gonzales v Storch (2020 NY Slip Op 07284)
Meija-Gonzales v Storch
2020 NY Slip Op 07284
Decided on December 03, 2020
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided and Entered: December 03, 2020
Before: Renwick, J.P., Manzanet-Daniels, Mazzarelli, Singh, Scarpulla, JJ.
Index No. 154573/12 Appeal No. 12528-12528A Case No. 2020-01726, 2020-01754
[*1]Jaime Alberto Meija-Gonzales, Plaintiff-Appellant,
v
Oliver S. Storch, Defendant-Respondent.
Leon I. Behar, P.C., New York (Leon I. Behar of counsel), for appellant.
Brand Glick Brand, Garden City (Robert S. Mazzuchin of counsel), for respondent.
Judgment, Supreme Court, New York County (Lyle E. Frank, J.) entered January 29, 2020, after a jury trial, dismissing plaintiff's claims and awarding defendant the principal amount of $50,000 plus interest on its counterclaim, unanimously affirmed, without costs. Order, same court and Justice, entered March 4, 2020, which denied plaintiff's motion to set aside the verdict and for related relief, unanimously affirmed, without costs.
Plaintiff's argument that the trial court erroneously instructed the jury that he, rather than defendant, had the burden of proof, was not raised before the trial court and it is thus [*2]unpreserved (CPLR 4110-b). Nor does plaintiff show that this issue should be reached in the interests of justice, as this is not a situation where the court "effectively foreclosed the jury from evaluating the evidence in accordance with the proper legal standard" (Pagnotta v Diamond, 51 AD3d 1099, 1101 [3d Dept 2008]).
Plaintiff's motion to set aside the verdict and related relief was properly denied. Plaintiff complains that the court failed to properly instruct the jury on the law of whether a Statement of Client's Rights is required for a retainer agreement to be enforceable. However, the court properly explained that there had been no evidence introduced on that issue, other than the parties' testimony. Under the circumstances, the court properly allowed the jury to assess the competing testimony of defendant, who testified that he had provided such Statement to plaintiff's wife, and of plaintiff's wife, who testified she never received it.
Plaintiff's argument that the court caused confusion by using the word "contract" rather than "retainer agreement" in the jury questions, is unavailing. In its charge to the jury, the court reiterated that the case concerned a contract between an attorney and client, and further explained that "[t]he relationship between an attorney and his client is controlled by the agreement they make except that the client has the absolute right to terminate the relationship at any time."
Plaintiff claims the court should have instructed the jury that nonrefundable retainer fees are contrary to public policy, but as this Court previously held, defendant presented expert evidence that the agreement at issue was not a nonrefundable fee agreement (see 148 AD3d 467, 468 [1st Dept 2017]). Moreover, plaintiff presented no evidence at trial to the contrary, that the agreement at issue was a nonrefundable fee agreement. Instead, his unconscionability argument is, in essence, one of unconscionability in hindsight, which is unavailing (see Matter of Lawrence, 24 NY3d 320, 339-340 [2014]).
Contrary to plaintiff's assertions, the concepts of termination of an attorney with or without cause and the fee-related consequences of each were in the jury charge or the questions to the jury, and the court also charged the jury on the concept of full performance.
Plaintiff's arguments concerning the $50,000 awarded defendant on his counterclaim also fail. During the charge conference, plaintiff's counsel did not object to the court's holding that this was not an issue for the jury, if the jury determined that there was a valid contract under which defendant fully performed, which the jury did. Under the circumstances, thereis no question of defendant's entitlement to the additional $50,000, given that this was a contract for a $250,000 retainer.
We have considered plaintiff's remaining arguments and find them unavailing.THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: December 3, 2020 |
4,639,337 | 2020-12-03 20:08:45.318614+00 | null | http://www.courts.state.ny.us/reporter/3dseries/2020/2020_07308.htm | Matter of Yarusso v New York City Police Dept. (2020 NY Slip Op 07308)
Matter of Yarusso v New York City Police Dept.
2020 NY Slip Op 07308
Decided on December 03, 2020
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided and Entered: December 03, 2020
Before: Friedman, J.P., Kapnick, Gesmer, Kern, Shulman, JJ.
Index No. 155945/18 Appeal No. 12555 Case No. 2019-4852
[*1]In the Matter of Richard Yarusso, Petitioner-Appellant,
v
New York City Police Department et al., Respondents-Respondents.
Law Office of Thomas Torto, New York (Thomas Torto of counsel), for appellant.
James E. Johnson, Corporation Counsel, New York (Jonathan A. Papolow of counsel), for respondents.
Judgment (denominated an order), Supreme Court, New York County (Carol R. Edmead, J.), entered on or about May 30, 2019, denying the petition to annul respondents' determination, dated February 26, 2018, which rejected petitioner's application for reinstatement to the New York City Police Department (NYPD), and granting respondents' cross motion to dismiss the proceeding brought pursuant to CPLR article 78, unanimously affirmed, without costs.
Administrative Code of City of NY § 13-254(a) provides that respondent "board may, and upon his or her application shall, require any disability pensioner, under the minimum age or [*2]period for service retirement elected by him or her, to undergo medical examination," and if the board concludes that he or she "is able to engage in a gainful occupation," it certifies the pensioner to "the appropriate civil service commission," which places the pensioner "as a preferred eligible on such appropriate lists of candidates as are prepared for appointment to positions for which [the pensioner] is stated to be qualified." Under the board's reasonable interpretation of that provision, its authority to reinstate a disability pensioner is limited to members under the age of 55 or who have not reached the service retirement contribution period (20 0r 25 years) they elected upon joining the pension fund.
Here, it is undisputed that when petitioner joined the NYPD in February 1994, he elected a minimum service retirement period of 20 years, and that when he requested reinstatement to the NYPD, whether measured from his first request in 2015 or his formal request to the board in 2018, he was no longer under the minimum 20-year period for service retirement elected by him. Accordingly, as the article 78 court correctly found, respondent board's denial of his request for reinstatement was a rational determination based on the statutory authority providing that it lacked jurisdiction to reinstate petitioner under the circumstances presented (see generally Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County , 34 NY2d 222, 230-231 [1974]). THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: December 3, 2020 |
4,639,338 | 2020-12-03 20:08:45.56802+00 | null | http://www.courts.state.ny.us/reporter/3dseries/2020/2020_07271.htm | Matter of Toussaint T.E. (Allen E.) (2020 NY Slip Op 07271)
Matter of Toussaint T.E. (Allen E.)
2020 NY Slip Op 07271
Decided on December 03, 2020
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided and Entered: December 03, 2020
Before: Friedman, J.P. Kapnick, Gesmer, Kern, Shulman, JJ.
Docket No. B-40381/16 Appeal No. 12549 Case No. 2019-4564
[*1]In the Matter of Toussaint T.E., a Child Under Eighteen Years of Age, etc., Allen E., Respondent-Appellant, The Children's Village, Petitioner-Respondent.
Tennille M. Tatum-Evans, New York, for appellant.
Dawne A. Mitchell, The Legal Aid Society, New York (Judith Stern of counsel), attorney for the child.
Order, Family Court, New York County (Karen I. Lupuloff, J.), entered on or about March 26, 2019, which dismissed with prejudice respondent's motion to vacate a prior order, same court and Judge, entered on or about January 9, 2018, terminating his parental rights to the subject child upon a fact-finding determination that respondent abandoned the child, unanimously affirmed, without costs.
The order finding that respondent abandoned the child and terminating his parental rights to the child was affirmed by this Court before the return date of respondent's motion to vacate the order (Matter of Toussaint Thoreau E. [Allen E.], 170 AD3d 551 [1st Dept 2019]). As the appeal resolved all the issues that respondent had raised in his motion, the doctrine of law of the [*2]case precluded Family Court from entertaining the motion (Massey v Byrne, 164 AD3d 416, 416 [1st Dept 2018]). To the extent respondent purports to have supported the motion with newly discovered evidence (see id.; CPLR 5015[a][2]), it does not avail him. The evidence was not newly discovered and in any event would not have changed the prior determination (see Olwine, Connelly, Chase, O'Donnell & Weyher v Valsan, Inc., 226 AD2d 102, 103 [1st Dept 1996]).THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: December 3, 2020 |
4,639,339 | 2020-12-03 20:08:45.790118+00 | null | http://www.courts.state.ny.us/reporter/3dseries/2020/2020_07304.htm | Matter of Quire v City of New York (2020 NY Slip Op 07304)
Matter of Quire v City of New York
2020 NY Slip Op 07304
Decided on December 03, 2020
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided and Entered: December 03, 2020
Before: Friedman, J.P., Kapnick, Gesmer, Kern, Shulman, JJ.
Index No. 155690/18 Appeal No. 12554 Case No. 2019-05160
[*1]In the Matter of Brian Quire, Petitioner,
v
City of New York et al., Respondents.
The Kurland Group, New York (Yetta G. Kurland of counsel), for petitioner.
James E. Johnson, Corporation Counsel, New York (D. Alan Rosinus, Jr. of counsel), for respondents.
Order, Supreme Court, New York County (Melissa A. Crane, J.), entered May 31, 2019, which, in this CPLR article 78 proceeding seeking to annul respondents' February 16, 2018 determination finding petitioner guilty of possessing and ingesting methamphetamine and terminating his employment as a police detective, denied the petition to the extent it alleged that the determination was affected by an error of law, and then transferred the questions of substantial evidence and appropriateness of the penalty to this Court, unanimously vacated, on the law, the matter reviewed de novo, and upon such review, respondents' determination unanimously confirmed, the petition denied, and the proceeding dismissed, without costs.
"The [error of law] issue raised by petitioner[] and disposed of by the court is not an objection that could have terminated the proceeding within the meaning of CPLR 7804(g), and thus we review the matter de novo" (Matter of OTR Media Group, Inc. v Board of Stds. & Appeals of the City of N.Y., 132 AD3d 607, 607 [1st Dept 2015]; see Matter of G & G Shops v New York City Loft Bd., 193 AD2d 405, 405 [1st Dept 1993]).
The determination that petitioner possessed and ingested methamphetamine is supported by substantial evidence in the record (CPLR 7803[4]; see generally 300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176, 179-182 [1978]). "[T]hree samples of hair from his [leg] were subjected to repeated testing by independent laboratories and yielded positive results" (Matter of Lumezi v Bratton, 147 AD3d 566, 566 [1st Dept 2017]; see Matter of Jones v Kelly, 111 AD3d 415, 415 [1st Dept 2013]). To the extent there were conflicting expert opinions as to the efficacy of drug testing using hair, as well as character witness testimony tending to show that petitioner did not use drugs, "courts may not weigh the evidence or reject the choice made" by the hearing officer to accept or reject particular testimony (Matter of Berenhaus v Ward, 70 NY2d 436, 443-444 [1987]).
Petitioner's contention that respondents failed to apply the preponderance of the evidence standard is unavailing, as this Court's review "is limited to a consideration of whether that resolution was supported by substantial evidence upon the whole record" (300 Gramatan Ave. Assoc., 45 NY2d at 181). In any event, his contention is unsupported by the text of the determination.
Petitioner's procedural arguments concerning the hearing are unavailing. He waived any objection to the hearing's reopening "by failing to object on the record," instead agreeing to whatever the hearing officer decided and offering suggestions as to how to proceed (see Matter of Stergiou v New York City Dept. of Educ., 106 AD3d 511, 512 [1st Dept 2013]). Similarly, administrative res judicata was inapplicable, as no determination had been rendered at the time (see Matter of Jason B. v Novello, 12 NY3d 107, 113 [2009]).
We find no grounds to vacate the penalty here, as "[t]he Commissioner's dismissal of a police officer for using illegal drugs is not so disproportionate to the offense as to be shocking to one's sense of fairness" (Trotta v Ward, 77 NY2d 827, 828 [1991], citing Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, 233 [1974]; see also Matter of Jones, 111 AD3d at 415).
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: December 3, 2020 |
4,639,340 | 2020-12-03 20:08:46.018941+00 | null | http://www.courts.state.ny.us/reporter/3dseries/2020/2020_07290.htm | Matter of Qudian Sec. Litig. (2020 NY Slip Op 07290)
Matter of Qudian Sec. Litig.
2020 NY Slip Op 07290
Decided on December 03, 2020
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided and Entered: December 03, 2020
Before: Renwick, J.P., Manzanet-Daniels, Mazzarelli, Singh, Scarpulla, JJ.
Index No. 651804/18, 653047/18 Appeal No. 12537N Case No. 2020-02421
[*1]In the Matter of Qudian Securities Litigation.
Panther Partners Inc. et al., Plaintiffs-Appellants,
Qudian Inc. et al., Defendants-Respondents, Min Luo et al., Defendants.
Robbins Geller Rudman & Dowd LLP, Melville (Joseph Russello of counsel), for appellants.
Simpson Thacher & Bartlett LLP, New York (Stephen P. Blake of counsel), for Qudian Inc., respondent.
O'Melveny & Myers LLP, New York (Jonathan Rosenberg of counsel), for Credit Suisse Securities (USA) LLC, Citigroup Global Markets Inc. and UBS Securities LLC, respondents.
Order, Supreme Court, New York County (O. Peter Sherwood, J.), entered May 15, 2020, which denied plaintiffs' motion to vacate a previously imposed stay, unanimously reversed, on [*2]the law and the facts and in the exercise of discretion, without costs, and the motion granted.
There is no basis for a stay of this action pursuant to CPLR 2201 since the decision in the federal action will not determine all of the questions in this action (see e.g. Otto v Otto, 110 AD3d 620, 621 [1st Dept 2013]). After the decision in In re: Qudian Inc. Sec. Litig. (2019 WL 4735376, 2019 US Dist LEXIS 167072 [SD NY, Sept. 27, 2019, No. 17-CV-9741 (JMF)]), the only claim remaining in the federal action concerns Dabai Auto, which is not at issue in the case at bar.
The only claim in plaintiffs' proposed consolidated amended complaint (CAC) is that defendants failed to disclose that Ant Financial was entitled to direct changes to critical aspects of Qudian's business, such as requiring it to reduce its effective annualized rate to 24%. This claim differs from the dismissed interest/fee claim in the federal action, which alleged that Qudian misleadingly represented that its fees did not exceed 36%, when it actually charged penalty fees that exceeded those allowed under Chinese law (see Qudian, 2019 WL 4575376 at *7, 2019 US Dist LEXIS 167072 at *21). Hence, the finding in the federal action would not pose a risk of inconsistent rulings (see American Intl. Group, Inc. v Greenberg, 60 AD3d 483, 484 [1st Dept 2009]; see also Lauria v Kriss, 147 AD3d 575, 575 [1st Dept 2017] [federal and state actions "do not sufficiently overlap or show the likelihood of estoppel"]).
The CAC is not plaintiffs' third bite at the apple. There is no indication in the record that Bryan Foat — the federal plaintiff who was represented by Robbins Geller Rudman & Dowd LLP — is related to either Panther Partners Inc. or The Morrow Property Trust (plaintiffs in the instant action), or that any of these plaintiffs are mere tools or puppets of Robbins Geller. Therefore, Foat should not be conflated with
plaintiffs in the case at bar. The fact that the proposed CAC is plaintiffs' second bite at the apple does not preclude amendment (see Plaza PH2001 LLC v Plaza Residential Owner LP, 98 AD3d 89, 98 [1st Dept 2012]).THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: December 3, 2020 |
4,639,342 | 2020-12-03 20:08:46.505679+00 | null | http://www.courts.state.ny.us/reporter/3dseries/2020/2020_07281.htm | Matter of Lipson v Herman (2020 NY Slip Op 07281)
Matter of Lipson v Herman
2020 NY Slip Op 07281
Decided on December 03, 2020
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided and Entered: December 03, 2020
Before: Friedman, J.P., Kapnick, Gesmer, Kern, Shulman, JJ.
Index No. 652405/19 Appeal No. 12559N-12559NA Case No. 2019-01421
[*1]In the Matter of Ross Lipson, Petitioner-Respondent,
v
Taylor Stuart Herman et al., Respondents-Appellants.
Schiller Law Group, P.C., New York (John V. Golaszewski of counsel), for appellants.
Mark W. Stoutenburg, New York, for respondent.
Orders, Supreme Court, New York County (Arthur F. Engoron, J.), entered July 10 and 18, 2019, which, inter alia, granted the petition to confirm an April 12, 2019 arbitration award in petitioner's favor, unanimously affirmed, without costs.
The court properly granted the petition to confirm the subject arbitration award. Respondents Taylor Stuart Herman (Herman) and Taylor Stuart Herman, Inc. (the company) contend that the arbitrator wrongly determined that the company was nonexistent, and that this determination, in the face of evidence of the existence of the company, provides a basis to vacate the award (see CPLR 7511[b]). However, the argument is based on an incorrect premise, as this is not what the arbitrator held. The arbitrator held that it was "Taylor Stuart, Inc.," and not the [*2]company, that was nonexistent. Taylor Stuart, Inc. was the entity that purported to contract with petitioner in a construction contract, and its nonexistence, in turn, was the basis for the arbitrator's determination that Herman was personally liable for the amounts found owing to petitioner as a result of failures of performance under that contract.
Respondents argue that the real contracting party in the construction contract was the company and cite evidence of its existence. However, since the arbitrator did not address whether the company existed, respondents' arguments in support of its existence are not relevant.
Respondents contend that the use of Taylor Stuart, Inc. in the construction contract was an inadvertent misnomer or scrivener's error. However, they cite to no evidence in support of that claim, and the scrivener himself, company counsel, did not testify at the arbitration. Nor do respondents provide evidence to support their assertion that the company was also known by Taylor Stuart, Inc., or that Taylor Stuart, Inc. was an adopted name of the company. By deeming the parties to the construction contract to be petitioner and Taylor Stuart, Inc., as the contract expressly and repeatedly states, the arbitrator "simply construed the parties' agreement as presented to [him]," which, even if somehow in error, "is more akin to an error of fact, which will not result in the vacatur of an arbitrator's award" (Matter of Meehan v Nassau Community Coll. , 242 AD2d 155, 157-158 [2d Dept 1998], lv dismissed 92 NY2d 946 [1998]).
As for the existence or nonexistence of Taylor Stuart, Inc., evidence was presented that this was a business name under which Herman had been operating for years, that he routinely used an email and a website with this name, and that there is no corporate entity in New York under the name Taylor Stuart, Inc. Accordingly, the arbitrator's imposition on Herman of personal liability for failures of performance under the construction contract, given the fictitious nature of Taylor Stuart, Inc., was a determination properly confirmed by the motion court. Furthermore, respondents' argument that the award should be modified to eliminate Herman's personal liability is also unavailing. It is an argument that affects "the merits of the controversy" and does not otherwise fall within the grounds permitted by CPLR 7511(c).
We have considered respondents' remaining arguments and find them unavailing.THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: December 3, 2020 |
4,513,504 | 2020-03-06 15:11:17.219304+00 | null | http://www.search.txcourts.gov/RetrieveDocument.aspx?DocId=96687&Index=%5c%5coca%2dpsql12%2ecourts%2estate%2etx%2eus%5cTamesIndexes%5ccoa03%5cOpinion | TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-19-00164-CV
LMV-AL Ventures, LLC, Appellant
v.
Carol Hemphill, Appellee
FROM COUNTY COURT AT LAW NO. 2 OF TRAVIS COUNTY
NO. C-1-CV-18-008784, THE HONORABLE ERIC SHEPPERD, JUDGE PRESIDING
MEMORANDUM OPINION
LMV-AL Ventures, LLC, (LMV) appeals from an order dismissing its claims
against Carol Hemphill pursuant to the Texas Citizens’ Participation Act (TCPA). See Tex. Civ.
Prac. & Rem. Code §§ 27.001–.011.1 LMV sued Hemphill in connection with her statements
criticizing The Harbor at Lakeway, an assisted living facility run by LMV. We will affirm the
trial court’s order.
1 All citations in this opinion to the TCPA are to the version in effect before the
September 2019 amendments became effective. See Act of May 21, 2011, 82nd Leg., R.S.,
ch. 341, § 2, 2011 Tex. Gen. Laws 961, 961–64 (current version at Tex. Civ. Prac. & Rem. Code
§§ 27.001–.011), amended by Act of May 24, 2013, 83d Leg., R.S., ch. 1042, §§ 1–3, 5,
2013 Tex. Gen. Laws 2499, 2499–500 (the version at issue in this opinion); see also
Act of May 20, 2019, 86th Leg., R.S., H.B. 2730, §§ 1–9 (the 2019 amendments), 11–12
(providing that a suit filed before the amendments become effective “is governed by the law in
effect immediately before that date”).
BACKGROUND2
Hemphill is the legal guardian of her brother, John Hurley. Hurley has not been
able to live independently since suffering a brain injury from an illness. In February 2016,
Hemphill decided to move Hurley to The Harbor. Prior to the move, The Harbor’s staff assessed
Hurley to determine the care he required. The assessment reflects that while Hurley was capable
of performing daily tasks independently, his “[j]udgment and memory are not always good.
Needs monitoring and guidance and occasional redirection.” Hemphill executed a rental
agreement specifying his “level of care,” i.e., the services Hurley would receive.
According to Hemphill, her brother’s health declined during the next eighteen
months. He gained a substantial amount of weight, experienced serious tooth decay, developed
high blood pressure and cholesterol, and often went up to a week at a time without bathing,
brushing his teeth, or changing his clothes. Hemphill attributed the change to the staff’s failure
to remind her brother to take his medication and to tend to his personal hygiene—tasks Hurley
could perform if prompted. They also, in her view, failed to ensure he followed the restricted
diet recommended by his physician.
In September 2017, Hemphill sent a letter detailing all her concerns to John
Redford, the Harbor’s executive director, and Paul DeNucci, LMV’s principal. Hemphill alleges
Hurley was evicted as a result of the letter, while The Harbor maintains that Hemphill terminated
the rental agreement herself. Regardless of the cause, September 2017 was Hurley’s last month
at The Harbor. During that month, Hemphill filed a complaint with the Texas Department of
2 We draw these facts from the live pleadings and the parties’ supporting and opposing
affidavits. See Tex. Civ. Prac. & Rem. Code § 27.006(a) (directing courts deciding whether to
dismiss under TCPA to “consider the pleadings and supporting and opposing affidavits stating
the facts on which the liability or defense is based”).
2
Health and Human Services (HHS) and left a review of The Harbor on senioradvisor.com and
Google reviews.3 The complaint resulted in an unannounced inspection of The Harbor on
September 6, 2017, which The Harbor alleges forced them to cancel a training session for its
staff and lose the presenter’s $5,000 fee.4 The review states:
I wish I could give fewer stars. The Harbor has been unable to provide the
simplest of personal care – reminders. Found my loved one after a week in the
same clothing, underwear and socks and he had not bathed or taken a shower.
Nor do they follow doctor ordered specific diets (although they say they can)
which results in declined health and well-being. If you want your loved one to
have happy hour as many as 5 days a week (but always 3), then this is the place
for you. There has been constant staff turnover resulting in lack of continuity of
care and communication. The worst thing is that they are unresponsive to
complaints about care and neglect and instead blame the resident, the family[,]
and evict you for fraudulent reasons. They seem to have no understanding of the
waters navigated by caregivers and family when a loved-one is in a facility.
Hurley moved out of The Harbor on October 2, 2017.
LMV sold The Harbor the following year. Shortly after the sale, Misty Knight
left her position there to become director of nursing at an independent living facility in
Georgetown. Knight met with Hemphill and others at that facility the following month. The
record does not reflect the reason for the meeting, but Knight alleges in an affidavit that
Hemphill told those in attendance that “she knew that Paul DeNucci had to sell [T]he Harbor
because State authorities made him sell it.” Knight responded that she “did not believe
Mr. DeNucci had sold [T]he Harbor because of any improper conduct, but [Hemphill]
was insistent.”
3 Hemphill left the same review on both websites, but senioradvisor.com deleted the
word “neglect” and replaced it with “[Removed].”
4 HHS later informed Hemphill by letter that it determined The Harbor was complying
with all “rules or regulations related to your concerns.”
3
LMV sued Hemphill for business disparagement, tortious interference with an
existing contract, and defamation. Hemphill filed a motion to dismiss these claims under the
TCPA, and LMV filed a response with affidavits from DeNucci, Redford, and Knight. LMV
subsequently nonsuited its claim for tortious interference with an existing contract. The trial
court dismissed all of LMV’s claims and awarded Hemphill fees and sanctions as required by the
TCPA. LMV timely appealed.
DISCUSSION
“Reviewing a TCPA motion to dismiss requires a three-step analysis.” Youngkin
v. Hines,
546 S.W.3d 675
, 679 (Tex. 2018). As a threshold matter, the moving party must show
by a preponderance of the evidence that the TCPA applies to the legal action against it. Tex.
Civ. Prac. & Rem. Code § 27.005(b). If the moving party meets that burden, the nonmoving
party must establish “by clear and specific evidence a prima facie case for each essential element
of the claim in question.”
Id. § 27.005(c).
If the nonmoving party satisfies that requirement, the
burden shift backs to the moving party to prove each essential element of any valid defense by a
preponderance of the evidence.
Id. § 27.005(d).
Courts determining whether to grant a TCPA
dismissal motion are to consider “the pleadings and supporting and opposing affidavits stating
the facts on which the liability or defense is based.”
Id. § 27.006(a).
We review de novo
whether a party carried its assigned burden. Long Canyon Phase II & III Homeowners Ass’n v.
Cashion,
517 S.W.3d 212
, 217 (Tex. App.—Austin 2017, no pet.).
Conceding that Hemphill demonstrated the TCPA applies, LMV argues that it
established a prima facie case of defamation and business disparagement by clear and specific
4
evidence.5 A prima facie case “refers to evidence sufficient as a matter of law to establish a
given fact if it is not rebutted or contradicted.” In re Lipsky,
460 S.W.3d 579
, 590 (Tex. 2015)
(orig. proceeding). Stated differently, “[i]t is the ‘minimum quantum of evidence necessary to
support a rational inference that the allegation of fact is true.’”
Id. (quoting In
re E.I. DuPont de
Nemours & Co.,
136 S.W.3d 218
, 223 (Tex. 2004) (orig. proceeding) (per curiam)). “Clear and
specific evidence” means that “more than mere notice pleading” is required to establish a prima
facie case. Bedford v. Spassoff,
520 S.W.3d 901
, 904 (Tex. 2017) (per curiam). The plaintiff
“must provide enough detail to show the factual basis for its claim.”
Id. (quoting In
re
Lipsky, 460 S.W.3d at 591
).
Defamation
LMV asserted two defamation claims—one arising from the online review and a
second claim arising from Hemphill’s statements to Knight.6 The essential elements of
defamation are: (1) publication of a false statement of fact to a third party, (2) that was
defamatory concerning the plaintiff, (3) with the requisite degree of fault, and (4) that
proximately caused damages, unless the statement is defamatory per se. D Magazine Partners,
L.P. v. Rosenthal,
529 S.W.3d 429
, 434 (Tex. 2017); see Brady v. Klentzman,
515 S.W.3d 878
,
886 (Tex. 2017) (distinguishing defamation per se and per quod for purposes of damages).
“In a defamation case, the threshold question is whether the words used ‘are
reasonably capable of a defamatory meaning.’” Dallas Morning News v. Tatum,
554 S.W.3d 5
LMV does not appeal the dismissal of its nonsuited claim or the award of fees or
sanctions pertaining to that claim.
6 We note that Hemphill admits authorship of the online reviews but denies making the
oral statements attributed to her by Knight.
5
614, 624 (Tex. 2018) (quoting Musser v. Smith Protective Servs.,
723 S.W.2d 653
, 654 (Tex.
1987)). In making this initial determination, we examine the statement’s “gist.”
Rosenthal, 529 S.W.3d at 434
. That is, we construe the statement “as a whole in light of the surrounding
circumstances based upon how a person of ordinary intelligence would perceive it.”
Id. (quoting Turner
v. KTRK Television, Inc.,
38 S.W.3d 103
, 114 (Tex. 2000)). This analysis is objective
and involves two independent steps.
Tatum, 554 S.W.3d at 625
. The first step is to decide
“whether the meaning the plaintiff alleges is reasonably capable of arising from the text of which
the plaintiff complains.”
Id. The second
is to determine whether that meaning, if reasonably
capable of arising from the text, “is reasonably capable of defaming the plaintiff.”
Id. Generally, a
statement is defamatory if it “tends to injure a person’s reputation
and thereby expose the person to public hatred, contempt, ridicule, or financial injury or to
impeach any person’s honesty, integrity, virtue, or reputation.” Texas Disposal Sys. Landfill,
Inc. v. Waste Mgmt. Holdings,
219 S.W.3d 563
, 580 (Tex. App.—Austin 2007, pet. denied)
(citing Tex. Civ. Prac. & Rem. Code § 73.001). Defamation is either per se or per quod.
Id. Defamation per
se occurs when a statement is “so obviously detrimental to one’s good name that
a jury may presume general damages, such as for loss of reputation or for mental anguish.”
Tatum, 554 S.W.3d at 624
(citing Hancock v. Variyam,
400 S.W.3d 59
, 63–64 (Tex. 2013)).
Statements that injure a person in their office, profession, or occupation typically constitute
defamation per se.
Id. To qualify
as defamation per se under this category, the statement must
“affect the plaintiff in some manner that is peculiarly harmful to the plaintiff’s trade, business, or
profession and not merely upon the plaintiff’s general characteristics.” In re
Lipsky, 460 S.W.3d at 596
(citing
Hancock, 400 S.W.3d at 66
–67). On the other hand, defamation per quod is
6
defamation that is not actionable per se.
Tatum, 554 S.W.3d at 624
. We begin with the question
of whether Hemphill’s statements are defamatory per se.
Review
LMV argues the gist of the review “is that The Harbor failed to provide the level
of care [to Hurley that] they were supposed to” under the rental agreement. The review does not
mention the rental agreement, but LMV reasons that accusing it of failing to provide certain care
necessarily implies that LMV was contractually obligated to provide that care. We disagree.
The review describes Hurley’s poor condition, alleges various omissions by The Harbor’s staff
that allegedly caused it, and contends The Harbor’s staff were unable or unwilling to rectify
these problems. While we agree that the review asserts LMV should have provided additional
care, a reasonable person would not perceive the review as stating LMV breached a contract by
failing to provide that care. Rather, a reasonable construction of the review is simply that LMV
failed to provide Hurley with needed care, resulting in his poor condition.
Hemphill argues this accusation alone is not defamatory per se because the
alleged failure to care for Hurley does not necessarily call into question LMV’s fitness as a
provider of assisted living services. On the arguments before us, we agree. LMV insists that it is
was not improper to refuse to provide Hurley with any additional care because the rental
agreement did not require it, and LMV had the legal right to refuse to provide any care not
required by the agreement. See 26 Tex. Admin. Code § 553.125(b)(2)(E) (Tex. Health and
Human Servs., Resident’s Bill of Rights and Provider’s Bill of Rights) (stating that providers of
assisted living services may “refuse to perform services for the resident or the resident’s family
other than those contracted for by the resident and the provider”). Additionally, LMV contends
7
that it could not legally provide additional care because Hurley had the right to make his own
decisions regarding clothing, bathing, and diet. See
id. § 553.125(a)(E)(i),
(T) (providing that
each resident “has the right to make his/her own choices regarding personal affairs, care,
benefits, and services” and to “determine his or her dress, hair style, [and] other personal
effects”). Whether or not LMV is correct on these matters, (an issue we do not decide here),
LMV’s entire argument on appeal presumes that the conduct alleged in the review—failing to
remind Hurley to bathe and change clothes and to ensure he followed a doctor-ordered diet—
could have been the proper course of action for a provider of assisted-living services. We
conclude based on the arguments before us that the review does not accuse LMV of conduct
“peculiarly harmful” to its reputation for providing assisted living services. See In re
Lipsky, 460 S.W.3d at 596
;
Hancock, 400 S.W.3d at 66
–67. The review is not defamatory per se.
Oral statements
The parties also dispute whether Hemphill’s comment during the meeting with
Knight that “she knew that Paul DeNucci had to sell [T]he Harbor because State authorities
made him sell it” constitutes defamation per se. LMV contends that Hemphill’s accusation of a
forced sale “adversely reflect[s] on LMV’s fitness to conduct it business” because a forced sale
implies either misconduct by DeNucci or “deficiencies” in the care The Harbor provided. To
show that a factual statement carries a defamatory implication, the “plaintiff must point to
‘additional, affirmative evidence’ within the [statement] itself that suggests the defendant
‘intends or endorses the defamatory inference.’”
Tatum, 554 S.W.3d at 635
(quoting White
v. Fraternal Order of Police,
909 F.2d 512
, 520 (D.C. Cir. 1990)). LMV relies wholly on
Knight’s affidavit to carry this burden. Knight states that she told Hemphill that she “did not
8
believe Mr. DeNucci had sold [T]he Harbor because of any improper conduct, but [Hemphill]
was insistent.” While an allegation that its principal was involved in misconduct might impugn a
corporation’s general characteristics, standing alone it is not “peculiarly harmful” to a reputation
for operating assisted living centers. See In re
Lipsky, 460 S.W.3d at 596
;
Hancock, 400 S.W.3d at 66
–67. LMV also contends that Hemphill’s statement implies the sale was forced due to
deficiencies in the care provided to The Harbor’s residents, but LMV does not direct us to any
“additional, affirmative evidence” supporting that implication. See
Tatum, 554 S.W.3d at 635
.
Hemphill’s statement does not constitute defamation per se.
Damages
Our conclusion that the review and Hemphill’s oral statements are not defamatory
per se means that LMV must have presented prima facie evidence of its damages to overcome
Hemphill’s dismissal motion. See
Rosenthal, 529 S.W.3d at 434
(stating damages are essential
element of defamation claim “unless the statement constitutes defamation per se” (citing In re
Lipsky, 460 S.W.3d at 593
)); see also Waste Mgmt. of Texas, Inc. v. Texas Disposal Sys. Landfill,
434 S.W.3d 142
, 146 n.7 (Tex. 2014) (noting that “[d]efamation per se . . . requires no proof of
actual monetary damages”). LMV does not dispute that it produced no evidence to satisfy this
element for either claim. We conclude LMV failed to establish a prima facie case for either of
its defamation claims, and we overrule its first issue.
Business Disparagement
LMV’s business disparagement claim also pertains to the online review. “To
recover for business disparagement, ‘a plaintiff must establish that (1) the defendant published
false and disparaging information about it, (2) with malice, (3) without privilege, (4) that resulted
9
in special damages to the plaintiff.’” Waste Mgmt. of
Tex., 434 S.W.3d at 155
(quoting Forbes
Inc. v. Granada Biosciences,
124 S.W.3d 167
, 170 (Tex. 2003)). Special damages “are
economic damages such as for lost income.”
Id. (quoting Hancock,
400 S.W.3d at 65). LMV
argues that it produced clear and specific evidence that Hemphill’s complaint to HHS resulted in
the loss of the presenter’s fee. However, the causal link between the complaint and later
disruption of the speaker’s presentation is not evident from the record. Further, LMV argued in
the court below that the lost presenter’s fee constituted its damages for tortious interference with
a contract, not business disparagement. “Parties are restricted on appeal to the theory on which
the case was tried.” Wells Fargo Bank, N.A. v. Murphy,
458 S.W.3d 912
, 916 (Tex. 2015)
(quoting Davis v. Campbell,
572 S.W.2d 660
, 662 (Tex.1978)). “Appellate courts are similarly
restricted and may not overlook the parties’ trial theories.”
Id. LMV therefore
may not rely on
the loss of the presenter’s fee as evidence of economic damages. And with no other evidence of
damages in the record, we conclude LMV failed to establish a prima facie case of special
damages. We overrule LMV’s second issue.
CONCLUSION
Having overruled LMV’s issues on appeal, we affirm the trial court’s order.
__________________________________________
Edward Smith, Justice
Before Chief Justice Rose, Justices Kelly and Smith
Concurring Opinion by Chief Justice Rose
Affirmed
Filed: March 6, 2020
10 |
4,490,063 | 2020-01-17 22:02:10.502976+00 | Smith | null | *481OPINION.
Smith:
The petitioner contends, first, that it is entitled to have included in its invested capital as paid-in surplus the amounts of $120,000 and $62,505 representing the alleged bonus value of the water-power rights acquired under the contracts of 1897 and 1905, respectively, with the Power Co. The respondent in his computation of the deficiencies herein has included in petitioner’s invested capital an amount of $60,000 representing the value of the water-power rights acquired under the contract of 1897, but has not included in invested capital any amount in respect of the later contract of 1905. The respondent now affirmatively contends, and has so amended his answer, that the $60,000 item was improperly included in petitioner’s invested capital and should be eliminated therefrom.
The pertinent parts of the revenue acts involved are found in section 207 of the 1917 Act and section 326 of the 1918 Act. These provisions, which are substantially alike in so far as affects the question in dispute, permit the inclusion in invested capital of all “paid-in or earned surplus.” Our first question then is whether there was any paid-in or earned surplus in respect of the waterpower rights acquired by the petitioner under the contracts of 1897 and 1905. We think not. Both of these transactions occurred between the petitioner and two other corporations, neither of which owned any of petitioner’s stock. Under the earlier contract of 1897 from the Carolina Construction Co. the petitioner acquired valuable water rights, the only consideration being that it erect and operate its mill upon the site designated. Neither the Carolina Construction Co. nor the Power Co., through which it acquired the power rights conveyed to the petitioner, was a stockholder of the petitioner. We have heretofore held that contracts of this nature secured from a nonstockholder do not give rise to a paid-in surplus. Cf. A. C. F. Gasoline Co., 6 B. T. A. 1337; Frank Holton & Co., 10 B. T. A. 1317; Tall Timber Lumber Co., 16 B. T. A. 300. Although the evi*482dence shows that there was an interrelationship between all of these corporations, that is, the Carolina Construction Co., the Power Co., and the petitioner, through mutuality of stock ownership, it does not show to what extent their stock was mutually owned. In fact, we have before us no evidence as to the specific stockholdings in any one of these corporations. In this respect we think that the evidence is insufficient to support the petitioner’s contention that these corporations were “ similarly ” owned and that the conveyance of 1897 from the Carolina Construction Co. was in effect a conveyance to the petitioner from its own stockholders. Nor do we deem it material that certain stockholders of the petitioner, Habliston, Cohen, and Emry, joined in the conveyance from the Carolina Construction Co. by virtue of an option which they held on the water rights conveyed. Their option never having been 'exercised, the conveyance was, nevertheless, from the Carolina Construction Co. in its corporate capacity.
As to the conveyance of 1905 from the Power Co., whereby the petitioner acquired the right to the use of water to produce 450 additional horsepower, its position is less favorable, since in that agreement the water-power rights were conveyed in consideration of the payment of an annual rental per horsepower equivalent to at least a substantial part of its market value. There is evidence that this latter transaction was entered into at arm’s length. The agreement which embodied the conveyance of the water-power rights terminated a dispute, threatening litigation, in which the Power Co. was pressing a claim against the petitioner for several thousand dollars for alleged excess water power used under its former agreement. This fact likewise argues against the petitioner’s contention that the corporations here were similarly or mutually owned. Upon the facts shown, we think that the petitioner is not entitled to include in its invested capital any amount in respect of the water-power rights acquired either under the deed of 1905 or that of 1897.
The respondent has reduced petitioner’s invested capital as of August 31, 1916, by the amount of $120,293.68 representing depreciation alleged to have been sustained in prior years over and above that shown by the petitioner’s books of account. Petitioner contends that this reduction of its invested capital was unwarranted. The basis of this claim is that the petitioner’s depreciable properties had always been kept in repair and in a highly efficient working order; that the cost of all major repair items such as the reroofing of the buildings, the replacement of floors, the replacement of parts of machines, the cost of reclothing nappers, etc., had been charged to operating expense in the years in which such costs were incurred and that, therefore, the capital account was not inflated by such *483costs and that the earned surplus shown by its books was not oyer-stated by reason of not charging off a sufficient amount for depreciation. The petitioner shows that from August 31, 1899, to August 31, 1916, it expended a total of $366,498.73 for supplies, which included the cost of replacements, and $84,127.25 for expense account or cost of repairs, and that both of these accounts were charged to expense; that such amounts were exclusive of the cost of repairs on tenant houses which were charged to rent and wages account and that the charge-off of $82,080 for depreciation of physical assets, $72,080 of which was charged directly to machinery account and $10,000 to tenement account, offset depreciation actually sustained; furthermore, that none of the 350 looms with which the petitioner began operation in 1899 were in use at August 31,1917, all having been discarded or exchanged for modern up-to-date looms. Upon this showing we think that the petitioner has overcome the presumption of the correctness of the respondent’s action in adjusting its corporate surplus as of August 31, 1916, on account of depreciation for prior years and that the invested capital should not be reduced by the $120,293.68 alleged depreciation sustained in excess of that charged off by the petitioner. See Cleveland Home Brewing Co., 1 B. T. A. 87; Russell Milling Co., 1 B. T. A. 194; Rub-No-More Co., 1 B. T. A. 228; Hamilton Manufacturing Co., 3 B. T. A. 1045; Western Star Milling Co., 5 B. T. A. 109; Welsh Packing Co., 9 B. T. A. 1169; Moraine Hotel Co., 15 B. T. A. 910.
The petitioner contends that it is entitled to an increase in the annual deduction allowed by the respondent on account of the exhaustion of the water-power rights acquired under the lease of 1905. The respondent has allowed an annual deduction of $359.77 computed upon a bonus value at March 1, 1913, of $33,098.50 spread ratably over the remaining life of the lease. The petitioner claimed no deduction from gross income in its income-tax returns in respect of the exhaustion of this lease. The respondent contends that inasmuch as the petitioner in its petition did not specifically allege any error with respect to the proper amount of exhaustion to be allowed upon this lease, the Board has no jurisdiction to determine the issue. The petitioner has, however, alleged that the respondent erred in disallowing amounts for depreciation for each of the taxable years and we think that the petitioner is entitled to prove depreciation upon any depreciable asset, even though the allegation of error with respect to the disallowance of a portion of the claimed depreciation did not cover this specific asset. The allegation of error that the respondent erred in disallowing a portion of the depreciation claimed on the return puts in issue the entire question as to the correct amount of exhaustion and depreciation allowable.
*484The deficiency notice which formed the basis of the petition in this case stated in part as follows:
5. The March 1, 1913 bonus value of the 100-year lease, based on the remaining life of 92 years, an indicated annual saving of $2,650.00 and interest at 8%, has been determined for depreciation purposes as $33,098.50. The allowable yearly depreciation over a period of 92 years is $359.77. (Article 162, Regulations 45 and Regulations 62.)
The computation of the respondent was based upon the theory that the water-power rights had a value of $15 per horsepower per year. The evidence shows that between 1906 and 1809 the Power Co. sold additional water power to the petitioner at the rate of $18 per horsepower and that it sold surplus water power to other users at a per kilowatt rate equal to $23 per horsepower. A competent witness for the petitioner testified that the March 1, 1913, value of the water power was between $20 and $25 per horsepower. Upon this basis we think that the respondent should have found the fair rental value of the water-power rights in question was $20 per horsepower on March 1, 1913, and that the exhaustion of the water-power rights should be computed accordingly. The method of computation of the March 1, 1913, bonus value of the water-power rights is not in question.
The petitioner contends that the respondent has allowed inadequate deductions for depreciation of physical assets in each of the years involved, in that he has computed the depreciation on most of the assets at too low a rate. The respondent has used a composite rate of 4 per cent throughout on all classes of property. The petitioner contends that, since its physical assets were segregated in its books according to proper classification, the respondent should not have used a fiat rate as applied to all classes of property, but should have depreciated each group separately at the following rates:
Per cent Per cent
Machinery_ 7 Equipment_ 10
Mill buildings_ 3 Eire protection equipment_ 7
Tenant houses_ 5 Electrical equipment, Mill No. 2_10
Power plant_ 8 Construction equipment_ 15
Petitioner submits that although the composite rate used by the respondent for years prior to the taxable year may have given-an adequate depreciation deduction, it did not produce an adequate depreciation deduction for the years involved for the reason that the physical assets were operated under war-time conditions and operated considerably overtime.
Petitioner submits that it is an established policy to apply specific rates of depreciation to specific assets and that a fiat or composite rate is justified only in a case where it is impossible to segregate the cost of assets; that such condition does not obtain in the instant case. The respondent, on the other hand, contends that it is not *485possible to apply specific rates to some of the classes of assets for the reason that the costs of the different assets within the same class are not properly segregated on the petitioner’s books of account, and that in any event a composite rate reaches the same result provided it be high enough to provide a reasonable deduction for depreciation.
Although the Board has approved the use of composite rates in particular cases (Hampton Cotton Mills, 2 B. T. A. 440, where a composite rate on the entire plant for the year 1920 was allowed at the rate of 6y2 per cent), we think that specific rates should be applied to specific assets where the cost of the specific assets is sufficiently accurately shown. Of course, assets within the same class often depreciate at different rates and the difficulty of applying specific rates to such assets is exemplified in the case of the power plant in this proceeding. Thus, it was testified with respect to the power plant that “ bars ” at the Roanoke Mills had been replaced every 7 years; that a penstock lasted 20 years; that petitioner’s experience is that a water wheel has to be replaced every 10 years to get the l?est efficiency of operation.
The principal assets of the petitioner are its machinery, brick buildings, and tenant houses. The evidence adduced warrants a conclusion that 8 per cent is a proper rate to be applied to the brick buildings; that 7 per cent is a proper rate for the machinery account during the tax years under review, although 5 per cent is a proper rate for prior years; that 5 per cent is a proper rate for the tenant houses; 8 per cent for the power plant as a whole; 10 per cent for equipment; 7 per cent for the fire protection equipment; 10 per cent for the electrical equipment, and 15 per cent for the construction equipment.
In his brief the respondent objects to any adjustment of depreciation allowances and contends that, since the petitioner has not shown the March 1, 1913, value of its assets acquired prior to and on hand at that date, no proper basis for a recomputation of depreciation deductions has been provided. We think that this objection is untimely and not well taken. Nowhere in the pleadings or in the presentation of this case was any question raised by either party as to the basis for computing the deductions. The respondent has used the cost figures shown in the petitioner’s books, which were admitted in evidence without objection from counsel and which appear to us fairly to represent what they purport. The petitioner has taken exception only to the rate used by the respondent. We think That the figures provided constitute the proper basis for the recompu-tation at the rates above specified.
Reviewed by the Board.
Judgment will be entered under Rule 50,
Mttiídock dissents. |
4,490,064 | 2020-01-17 22:02:10.535553+00 | Muedock | null | *55OPINION.
Muedock :
The Commissioner has not determined a deficiency for the year 1917, but on the contrary has determined an overassessment for that year. His determination is not the result of the denial of a claim in abatement. We have no jurisdiction to entertain the present proceeding so far as it relates to that year and the same is hereby dismissed.
As to the other years, the petitioner is claiming that it is affiliated with the Gila Valley Bank & Trust Co. within the meaning of subdivision (b) of section 240 of the Bevenue Act of 1918, which provides that two or more corporations shall be deemed to be affiliated—
(1) If one corporation owns directly or controls through closely affiliated interests or by a nominee or nominees substantially all the stock of the other or others, or
(2) If substantially all the stock of two or more corporations is owned or controlled by the same interests.
It is apparent from a consideration of the foregoing facts that the petitioner has not shown that it is to be deemed affiliated with the other institution under either one of the above provisions of the Act.
On January 1, 1918, a group of individuals owned 71.76 per cent of the stock of the petitioner and at the same time owned 65 per cent of the stock of the other bank. Without knowing more, it can not be said that the same interests owned substantially all of the stock of the two corporations, because under such circumstances we must assume that the stockholders owning the remaining 28.24 per cent of the stock of the petitioner are not the same persons who owned the remaining 35 per cent of the stock of the other bank. See American Auto Trimming Co., 6 B. T. A. 1007; Ice Service Co. et al., 9 B. T. A. 386; affd., 30 Fed. (2d) 230; D. S. Brandon, 10 B. T. A. 1118. We have this same difficulty for the other years here in question, and we can not say as to any of the years that substantially all of the stock of the two corporations was owned by the same interests. Furthermore, the evidence fails to disclose control of the minority stock by the interests owning the majority stock. Ice Service Co., supra; Tunnel Railroad of St. Louis, 4 B. T. A. 596, as to proxies; News Publishing Co., 6 B. T. A. 1257; affd., 29 Fed. *56(2d) 955; Adolf Hirsch & Co., 30 Fed. (2d) 646; Great American Stores Co., 14 B. T. A. 320.
There is no claim that one of the corporations owns directly substantially all the stock of the other, but it is claimed in the petitioner’s brief, though not alleged, that one corporation controls through closely affiliated interests, substantially all the stock of the other. In this the petitioner must certainly fail so far as the year 1918 is concerned, for at the beginning of that year and extending to an unknown time in that year, we must assume that 28.24 per cent of the stock of the petitioner was owned by a number of individuals who owned no stock in the other bank, and 35 per cent of the stock of the other bank was owned by individuals who owned no stock in the petitioner. The evidence does not show that those owning the majority of the stock in either of these banks exercised control, through closely affiliated interests or otherwise, over the minority stock. On January 1, 1919, there had been no substantial change in the identity of the owners of the stock in the Gila Valley Bank & Trust Co., but at that date those owning 65 per cent of its stock owned 89.72 per cent of the stock of the petitioner. The petitioner contends that under these circumstances the Gila Valley Bank & Trust Co. controls, through closely affiliated interests, substantially all the stock of the petitioner. It is unnecessary to decide, and we do not decide, whether 89.72 per cent is substantially all the stock of the petitioner, because in any event it can not be said that the Gila Valley Bank & Trust Co. controls through closely affiliated interests this 89.72 per cent of the stock of the petitioner. • It could of course be said that stockholders owning 65 per cent of the stock of the Gila Valley Bank & Trust Co. owned directly 89.72 per cent of the stock of the petitioner, but this fact is no reason to say that the Gila Valley Bank & Trust Co. as a corporation controls, through closely affiliated interests, substantially all the stock of the petitioner, or in fact to say that the Gila Valley Bank & Trust Co. controls any of the stock in the petitioner. Control must be proven and we can not assume that it exists, particularly where 35 per cent of the stock of the corporation claimed to exercise the control is held by persons who own no stock in the corporation claimed to be controlled. Such a situation indicates a lack of that unity of interest contemplated by the Act. Proof of control is lacking.
The situation as to the year 1920 is no different in principle from the situation in 1919.
Judgment will ~be entered for the respondent. |
4,490,065 | 2020-01-17 22:02:10.56285+00 | Love | null | *488OPINION.
Love:
At the hearing of this proceeding it was submitted and argued by counsel for the petitioner and counsel for the respondent on the hypothesis that the Yan Cleave Oil Co. and its successor, the Yan Cleave Trust, although different legal entities, nevertheless were in fact one and the same business unit, and therefore, notwithstanding the fact that the deficiencies in taxes for the years 1920, 1921, and 1922 were assessed against the Yan Cleave Oil Co., and the deficiency notices mailed to that organization, nevertheless, by reason of the fact that the Van Cleave Oil Co. had not been in existence since August 14, 1920, and the Van Cleave Trust had exercised the management and control of the property and business formerly owned and managed by the Van Cleave Oil Co., and received for itself all the income from said business, the Van Cleave Trust had a right in its own name and behalf to respond to the deficiency notice mailed by the Commissioner to the Van Cleave Oil Co., and defend in this proceeding.
It is clear that the Van Cleave Oil Co. and the Van Cleave Trust are two separate and distinct legal entities, and being such, the situation here is that the entity against which the taxes in question were assessed, and to which the deficiency notices were mailed, has not appealed to the Board, and is not before the Board.
In view of and following the doctrine announced by the Board in a number of cases, we must hold that for the years 1920, 1921, and 1922 the Board is without jurisdiction to adjudicate the issues involved, and, therefore, as to those three years, the proceeding is dismissed for lack of jurisdiction. See Bond, Inc., 12 B. T. A. 339. Engineers Oil Co., 14. B. T. A. 1148. Sanborn Brothers, Successors, etc., 14 B. T. A. 1059. Gideon-Anderson Co., 18 B. T. A. 329.
With reference to the year 1923, the situation is different. For that year the tax was assessed against the Van Cleave Trust, the *489deficiency notice was mailed to that organization and it has appealed to the Board. The return for that year was made by the Van Cleave Trust, as a trust. The Commissioner held that it was not a trust, but was an association, and taxable as a corporation, and based his determination of the deficiency on that holding. The petitioner contends that it was a trust, but says that, in the event it be held that in its organization and operation it fell short of qualifying as a trust under the late decisions of the Board, as well as of the courts, yet it did meet the test required by the Commissioner during the year in question, and that, therefore, section 704 of the Revenue Act of 1928 applies and must govern the decision. That section prescribes:
SBC. 704. TAXABILITY OB' TRUSTS AS CORPORATIONS — RETROACTIVE.
(a) If a taxpayer filed a return as a trust for any taxable year prior to the taxable year 1925 such taxpayer shall be taxable as a trust for such year and not as a corporation, if such taxpayer was considered to be taxable as a trust and not as a corporation * * * under any ruling of the Commissioner or any duly authorized officer of the Bureau of Internal Revenue applicable to any of such years, and interpretative of any provision of the Revenue Act of 1918, 1921, or 1924, which had not been reversed or revoked prior to the time the return was made, or under any such ruling made after the return was filed which had not been reversed or revoked prior to the time of the termination of the taxpayer’s existence.
The issue in this case is the same as that raised and decided in E. A. Landreth Co. et al., 15 B. T. A. 655, and Wilkens & Lange, 15 B. T. A. 1183. In the Landreth case, the Board reviewed the material facts and examined in meticulous detail the regulations, and the rulings of the Commissioner and other duly authorized officers of the Bureau of Internal Revenue which had not been reversed or revoked prior to the time the return was made or prior to the time of the termination of the taxpayer’s existence. We found such rulings to be those included in the Cumulative Bulletins issued from time to time on the authority of the Bureau of Internal Revenue, and, from the consideration of them in connection with the facts before us in that case, we arrived at the conclusion that:
Beginning in the year 1919 and up to and including the period July-December, 1922, the Bureau of Internal Revenue was consistently ruling that irrespective of whether the taxpayer was engaged in business under corporate forms, it was taxable as a trust where the shareholders could not control the actions of the trustees; * * *.
and that being the case, we found for the petitioner.
Our decision in Wilkens & Lange, supra, followed that in Lan-dreth, supra, but inasmuch as our pronouncement went only so far as the period ended with December, 1922, and, further, there being involved in the instant case the tax return for 1923, filed, as stipulated for the purposes of this proceeding only, on or before March 15, 1924, therefore we have examined Cumulative Bulletins succeed*490ing the year 1922 and have found no ruling, and none has been cited, reversing or revoking earlier rulings on this point, but rather, those so found have reiterated or been confirmatory of them. Therefore, we extend our pronouncement in the Landreth case, as set forth above, to include the period to July 1, 1924, and we find for the petitioner on this point and hold that for the year 1923 it was entitled to be taxed as a trust.
Reviewed by the Board.
Judgment of no deficiency for the year 1923 will he entered for the 'petitioner. |
4,654,853 | 2021-01-27 07:15:06.752326+00 | null | http://www.search.txcourts.gov/RetrieveDocument.aspx?DocId=17950&Index=%5c%5c10%2e20%2e4%2e7%5cTamesIndexes%5ccoa05%5cOpinion | Reversed and Remand; Opinion Filed January 20, 2021
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-19-01146-CV
AKASHDEEP SINGH, Appellant
V.
JASMIN GILL, Appellee
On Appeal from the 416th Judicial District Court
Collin County, Texas
Trial Court Cause No. 416-52447-2019
MEMORANDUM OPINION
Before Justices Schenck, Osborne, and Partida-Kipness
Opinion by Justice Partida-Kipness
Akashdeep Singh appeals the final divorce decree issued by the trial court in
his absence. Singh contends the trial court lacked personal jurisdiction over him
because appellee Jasmin Gill’s attempted substituted service did not strictly comply
with the rules of civil procedure. Alternatively, Singh contends the trial court abused
its discretion in granting divorce on the basis of fraud. We reverse the trial court’s
final divorce decree and remand the case for a new trial.
BACKGROUND
Singh and Gill were married on December 12, 2016, and separated on March
30, 2019. Gill filed for divorce on April 22, 2019, listing discord or conflict of
personalities, cruel treatment, and fraud as grounds for divorce. Gill specifically
alleged that Singh “entered into the marriage for financial purposes and to gain legal
permanent resident status.”
On June 14, 2019, Gill filed a motion for substituted service. In the motion,
Gill alleged that she and her attorney had unsuccessfully attempted to locate Singh.
Gill asked the trial court to order substituted service by eService under rule of civil
procedure 106(b). Gill attached two affidavits to her motion: hers and her attorney’s.
In her affidavit, Gill stated:
I cannot find Respondent. I do not know where he currently lives or
works, or if he is even in Texas.
Respondent has no family in the United States. Respondent’s entire
immediate family lives in India. To my knowledge, all extended family
members of Respondent live in India. I do not know their addresses. By
telephone they have refused to provide one to me.
I do not know any friends or acquaintances of Respondent who live in
the United States.
I do not know of any location where Respondent can be served.
I have attempted to contact Respondent at his former phone number and
email address and have received no response.
I have attempted to contact his family members for his current address
and contact information and no one will provide any information about
his whereabouts.
–2–
My husband’s last known address is the home where I currently reside
with my parents and two younger siblings . . . .
***
On March 31, 2019, Respondent packed his personal belongings and
left our home with no word to me or my family.
Since that day, Respondent has not returned to our home.
Gill’s attorney stated:
My office was able to contact Respondent by phone . . . and by
email . . . .
On April 22, 2019, I emailed to Respondent the file stamped Petition
and a Waiver of Service.
On April 25, 2019, two separate phone calls between myself and
Respondent took place where Respondent verbally confirmed to me in
English his correct email address as listed above. I asked him to provide
me a location to personally deliver service and he refused.
On April 25, 2019, following the two phone conversations I re-sent the
same email to the same email address as confirmed with the file
stamped Petition and a Waiver of Service attached. I followed up with
seven separate phone calls over the next five days, all of which went
unanswered.
On April 30, 2019, I called Respondent from an alternative phone
number and he answered.
Through an interpreter in my office speaking to Respondent in Hindi,
Respondent verbally refused to provide an address for him or any
family member, and he refused to accept service.
The trial court granted Gill’s motion and ordered Gill to serve Singh at his
known e-mail address via eService. Gill served Singh in accordance with the trial
court’s order on June 24, 2019.
–3–
The trial court conducted a prove-up hearing and issued a final decree on July
16, 2019. Singh did not attend the hearing. At the prove-up hearing, Gill testified
that she had obtained a protective order against Singh before she filed for divorce
because of his cruel treatment and threats toward her. She also testified that
immediately after Singh obtained his “green card” in March 2019, he moved out
after threatening the safety of Gill and her immediate family. Gill testified that Singh
had not attempted to contact her and she did not know his whereabouts.
Singh filed a verified, combined motion to vacate the final decree and motion
for new trial. In his motion, Singh contended that he first became aware of Gill’s
petition when Gill’s attorney e-mailed him a copy of the petition on April 23, 2019.
Singh claimed, however, that the e-mail went to his “spam” folder, which he checked
a few days later. He claimed that he refused to sign the waiver of service because
he did not agree with the grounds alleged in Gill’s petition. He contended that he
first discovered the trial court had issued a decree in his absence when he found a
copy of the decree in his “spam” e-mail folder. Singh stated further that he did
receive a copy of the citation and petition by mail, but the parcel was returned to the
sender when he failed to retrieve it. Singh did not indicate when the citation and
petition were sent, and neither affidavit attached to Gill’s motion for substituted
service indicates that Gill ever attempted to serve Singh by mail. Finally, Singh
claimed that his failure to answer was accidental and the result of mistake, and that
he would have responded timely if he had known that he had been served. The trial
–4–
court did not rule on his motion, which was denied by operation of law. This appeal
followed.
ANALYSIS
In his first issue, Singh contends the trial court’s final decree is void because
the trial court never acquired personal jurisdiction over him. According to Singh,
the substituted service was defective because Gill’s motion failed to comply with
rule of civil procedure 106(b). Specifically, Singh contends the affidavits attached
to the motion failed to set forth facts demonstrating that Gill unsuccessfully
attempted to serve him by personal service or certified mail. He also asserts that
substituted service was attempted by an interested party, Gill’s attorney, in violation
of rule 103.
Gill contends that Singh failed to preserve error by raising the issue in his
motion for new trial. We disagree. A party may complain of defective service of
citation for the first time on appeal. Wilson v. Dunn,
800 S.W.2d 833
, 837 (Tex.
1990); Garduza v. Castillo, No. 05-13-00377-CV,
2014 WL 2921650
, at *3 (Tex.
App.—Dallas June 25, 2014, no pet.) (mem. op.). Thus, we address the merits of
Singh’s first issue.
For a default judgment to withstand direct attack, strict compliance with the
rules governing service of process must affirmatively appear on the face of the
record. See Primate Constr., Inc. v. Silver,
884 S.W.2d 151
, 152 (Tex. 1994) (per
curiam); Lytle v. Cunningham,
261 S.W.3d 837
, 839–40 (Tex. App.—Dallas 2008,
–5–
no pet.). If the record fails to show strict compliance with the rules of civil procedure
governing issuance, service, and return of citation, then the attempted service of
process is invalid and of no effect. Lytle,
261 S.W.3d at 840
; Garrels v. Wales
Transp.,
706 S.W.2d 757
, 758 (Tex. App.—Dallas 1986, no pet.); see also Wilson,
800 S.W.2d at 836 (“Actual notice to a defendant, without proper service, is not
sufficient to convey upon the court jurisdiction to render default judgment against
him.”). When the attempted service of process is invalid, the trial court does not
acquire personal jurisdiction over the defendant, and the default judgment is void.
Lytle,
261 S.W.3d at 840
; see generally TEX. R. CIV. P. 124. There are no
presumptions favoring valid issuance, service, and return of citation in the face of a
direct attack on a default judgment. Primate Constr., Inc., 884 S.W.2d at 152;
Wilson, 800 S.W.2d at 836.
Because Gill obtained a no-answer default final decree by substituted service,
she had the burden to show Singh was served in the manner required by the
applicable rule or statute. See Dolly v. Aethos Commc’ns Sys., Inc.,
10 S.W.3d 384
,
388 (Tex. App.—Dallas 2000, no pet.). Virtually any deviation will be sufficient to
set aside a default judgment on appeal. Id.; see also LaRose v. REHJ, Inc., No. 05-
17-01348-CV,
2018 WL 6521804
, at *3 (Tex. App.—Dallas Dec. 12, 2018, no pet.)
(mem. op.). Strict compliance is particularly important when substituted service is
issued under rule 106(b). Dolly, 10 S.W.2d at 388.
–6–
Under Rule 106, when service of process by personal delivery or by certified
mail is unsuccessful, the trial court may, “upon motion supported by affidavit,”
authorize alternative methods of service. TEX. R. CIV. P. 106(b). The motion must
be supported by an affidavit “stating the location of the defendant’s usual place of
business or usual place of abode or other place where the defendant can probably be
found,” and stating the specific facts showing that traditional service has been
attempted “at the location named in such affidavit but has not been successful.” Id.
Upon such a showing, the trial court may authorize service: (1) by leaving a true
copy of the citation, with a copy of the petition attached, with anyone over sixteen
years of age at the location specified in such affidavit (the defendant’s usual place
of business or usual place of abode or other place where the defendant can probably
be found); or (2) in any other manner that the affidavit or other evidence before the
court shows will be reasonably effective to give the defendant notice of the suit. Id.
An affidavit supporting a motion for substituted service under rule 106(b)
must state “specifically the facts showing that service has been attempted” by means
specified in rule 106(a) “at the location named in such affidavit.” Id. Gill’s affidavit
stated only that Gill did not know where Singh could be found. Her attorney’s
affidavit recounted e-mail and telephone conversations with Singh in which he
refused to provide his location. Neither affidavit, however, stated facts showing that
service under rule 106(a) had been attempted. See id; Harrison v. Dallas Court
Reporting Coll., Inc.,
589 S.W.2d 813
, 815 (Tex. Civ. App.—Dallas 1979, no writ)
–7–
(process server’s affidavit not showing how many attempts at service were made or
the times at which service was attempted was inadequate to support substituted
service); Coronado v. Norman,
111 S.W.3d 838
, 842 (Tex. App.—Eastland 2003,
pet. denied) (affidavit failing to state dates and times service was attempted is
insufficient to support substituted service); see also In re J.M.I.,
223 S.W.3d 742
,
745 (Tex. App.—Amarillo 2007, no pet.) (affidavit merely detailing respondent’s
attempts to avoid service was inadequate to support substituted service).
Moreover, the affidavits do not exhibit the diligence necessary to support
substituted service. “[I]f personal service can be effected by the exercise of
reasonable diligence, substituted service is not to be resorted to.” In re E.R.,
385 S.W.3d 552
, 564 (Tex. 2012) (quoting Sgitcovich v. Sgitcovich,
241 S.W.2d 142
,
147 (1951)). “A diligent search must include inquiries that someone who really
wants to find the defendant would make, and diligence is measured not by the
quantity of the search but by its quality.” Id. at 565. Here, there is no indication that
Gill’s diligence included searching public data or “‘obvious inquiries’ a prudent
investigator would have made,” such as attempting service by mail to obtain a
forwarding address or locating and contacting other persons who would likely have
information about Singh, beyond Singh’s immediate family in India. Id. (citing In
the Interest of S.P.,
672 N.W.2d 842
, 848 (Iowa 2003), for list of “obvious
inquiries”). Consequently, we conclude the affidavits in support of Gill’s motion
for substituted service failed to meet the requirements of rule 106(b) and the trial
–8–
court improperly ordered substituted service. See Dolly,
10 S.W.3d at 388
.
Accordingly, we sustain Singh’s first issue.
Singh contends in his second issue that the trial court abused its discretion in
granting the divorce on the basis of fraud. Having sustained his first issue, however,
we conclude that the trial court lacked personal jurisdiction over Singh, and we need
not address Singh’s second issue.
CONCLUSION
Because Gill’s motion for substituted service failed to meet the requirements
of rule 106(b), the trial court improperly ordered substituted service and did not
obtain personal jurisdiction over Singh. Accordingly, we reverse the trial court’s
final decree of divorce and remand the case for a new trial.
/Robbie Partida-Kipness/
ROBBIE PARTIDA-KIPNESS
JUSTICE
191146F.P05
–9–
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
AKASHDEEP SINGH, Appellant On Appeal from the 416th Judicial
District Court, Collin County, Texas
No. 05-19-01146-CV V. Trial Court Cause No. 416-52447-
2019.
JASMIN GILL, Appellee Opinion delivered by Justice Partida-
Kipness. Justices Schenck and
Osborne participating.
In accordance with this Court’s opinion of this date, the judgment of the trial
court is REVERSED and this cause is REMANDED to the trial court for a new
trial.
It is ORDERED that each party bear its own costs of this appeal.
Judgment entered this 20th day of January, 2021.
–10– |
4,490,066 | 2020-01-17 22:02:10.593796+00 | Morris | null | *497OPINION.
MoRRis:
The first question presented for consideration is whether che respondent incorrectly reduced the basis for the computation of exhaustion on the so-called Draper lease, acquired through the acquisition of the Gallup Sand & Gravel Co., from $30,000, as carried on the petitioner’s books of account, to $1,000.
Section 234 (a) (7) of the Revenue Act of 1921 provides:
(a) That in computing the net income of a corporation subject to the tax .imposed by section 230 there shall be allowed as deductions:
* * * * * * *
(7) A reasonable allowance for the exhaustion, wear and tear of property used in the trade or business, including a reasonable allowance for obsolescence. * * *
The facts, briefly restated, are that the petitioner acquired the entire outstanding capital stock of the Gallup Sand & Gravel Co., in January and April of 1921, paying therefor cash, promissory notes, and shares of its own capital stock in the total amount of $122,000. In March, 1922, the Gallup Sand & Gravel Co. having total assets of $52,945.22, liabilities of $9,184.24, and total capital and surplus of $48,760.98, merged with and transferred its assets to the petitioner. Among its assets was the Draper contract, which it carried upon its books of account at $1,000. When the assets were transferred to the petitioner the Draper contract was written up in its books of account to $30,000, and good will of $49,239.02 was placed upon the books, admittedly, as a balancing entry.
In relation to this item the respondent contends that it was really an intercompany transaction, and that therefore the petitioner could not be allowed any cost for the lease greater than the predecessor paid for it. His contention is based on G. C. M. 1345A, C. B. VI-2, p. 154, in which it was held that the transfer of assets from one affiliated company to another was an intercompany transaction and the amount, if any, of consideration passing between the two subsidiaries can have no effect on the basis of the assets in the hands of the transferee for the purpose of depletion. That ruling held further that a transfer of assets between members of an affiliated group effected during the years for which consolidated income-tax returns were required — an intercompany transaction, is productive of neither taxable gain nor deductible loss in computing the net income of the affiliated group or of a new or independent basis for the computation of gain or loss on a subsequent sale.
It will be noted in this proceeding that the taxable period involved is that following the liquidation of the Gallup Sand & Gravel Co. In a recent decision, Riggs National Bank, 17 B. T. A. 615, we considered at some length a kindred question arising from *498a transaction which terminated the affiliated status and for a taxable period subsequent thereto. In that proceeding, as here, the petitioner owned all the stock of a second corporation and in the year 1922 took over the assets of that corporation, the value of which was less than the cost of the stock. The question there presented was whether the parent company sustained a deductible loss in computing income for the period following affiliation. On the authority of Remington Rand, Inc. v. Commissioner, 38 Fed. (2d) 77 (June, 1929), we held that the petitioner was entitled to deduct the loss from its income for that portion of its taxable year which fell outside the period of affiliation. Holding as we did that that transaction was closed for tax purposes, it would necessarily follow that a new basis for computing gain or loss on the subsequent sale of the assets acquired in the liquidation and for exhaustion purposes was established. Having found as a fact that the contract in question in this proceeding had a fair market value of $30,000 at the date it was acquired by the petitioner, that value represents cost and should be used as the basis for exhaustion over the remaining life of said contract.
The second allegation of error herein is with respect to the dis-allowance of the deduction of an amount paid by the petitioner to F. E. Gallup.
It appears that Gallup was a man with broad experience in the sand and gravel business and that he had engaged therein for a great number of years. In April, 1920, Gallup contemplated resigning his position as president of the Gallup Sand &, Gravel Co. and in order, as the record shows, that the company might still have the benefit of his broad experience and knowledge of the business, it entered into a contract with him for the payment of a salary of $6,000 per annum in consideration of Gallup’s acting in an advisory capacity to the company. That contract also contained an express condition that Gallup and the other parties thereto should refrain from competition in a specified territory until December 31, 1925.
The contract itself is a rather peculiar one in that it provides that in the case of the death of Gallup, Anna B. and Catherine C. Gallup should assume his duties and obligations and receive the same salary therefor. It does not appear that those other parties to the contract had any peculiar or unusual knowledge in the sand and gravel business, which would tend to indicate that the amount paid did not in fact represent salary. However, the record shows that Gallup himself performed services during the taxable year and that those services had a fair value of $3,000 and that the amount specified by the contract was actually paid. Therefore, as to the amount paid for services rendered, we are of the opinion that the respondent erred in the disallowance thereof.
*499. Nor do we see any reason why the deduction of the amount paid Gallup for his covenant to refrain from competition should not be allowed. The record shows that Gallup in fact refrained from competition and that the fair value per year of his so doing was not less than $3,000, and furthermore, that payment was actually made on that basis.
In Boonville National Bank, 2 B. T. A. 352; General Equipment Co., 2 B. T. A. 804; and Market Supply Co., 3 B. T. A. 841, the question of the deductibility of sums paid under similar contracts was presented and the deductions were disapproved by this Board on the ground, however, of failure to make proper proof. Therefore, we get little or no help from those cases on the question at issue here, except that the language therein would tend to indicate that, had a proper showing been made, the deduction would have been approved.
We have held in Farmers Feed Co., 17 B. T. A. 507, that the taxpayer there was entitled to amortize the cost of contracts similar to the one here. In that case the cost was paid upon the acquisition of the contract. In this proceeding payment was made ratably over the life of the contract and, therefore, the annual payment equals the amount of yearly exhaustion on the cost of the contract. We are, therefore, of the opinion that the petitioner is entitled to deduct $4,500 as salary and exhaustion for the taxable period in question. See Christensen Machine Co., 18 B. T. A. 256.
Reviewed by the Board.
Judgment will he entered under Rule 50. |
4,639,344 | 2020-12-03 20:08:47.056619+00 | null | http://www.courts.state.ny.us/reporter/3dseries/2020/2020_07283.htm | Matter of Fortuna (2020 NY Slip Op 07283)
Matter of Fortuna
2020 NY Slip Op 07283
Decided on December 03, 2020
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided and Entered: December 03, 2020 SUPREME COURT, APPELLATE DIVISION First Judicial Department
Sallie Manzanet-Daniels,J.P.,
Angela M. Mazzarelli
Anil C. Singh
Tanya R. Kennedy
Saliann Scarpulla, JJ.
Motion No. 2020-03348 Case No. 2020-03672
[*1]In the Matter of Nicholas J. Fortuna, (Admitted as Nicholas Joseph Fortuna), an Attorney and Counselor-at Law: Attorney Grievance Committee for the First Judicial Department, Petitioner, Nicholas J. Fortuna (OCA Atty. Reg. No. 2117067) Respondent.
Disciplinary proceedings instituted by the Attorney Grievance Committee for the First Judicial Department. Respondent, as Nicholas Joseph Fortuna, was admitted to the Bar of the State of New York at a Term of the Appellate Division of the Supreme Court for the Second Judicial Department on April 22, 1987.
Jorge Dopico, Chief Attorney, Attorney Grievance Committee, New York (Kevin P. Culley, of counsel), for petitioner.
[*2]
Michael S. Ross, Esq., for respondent.
Per Curiam.
Respondent Nicholas J. Fortuna was admitted to the practice of law in the State
of New York by the Second Judicial Department on April 22, 1987, under the name
Nicholas Joseph Fortuna. At all times relevant to this proceeding, he maintained
a law office within the First Judicial Department.
In August 2020, the Attorney Grievance Committee (Committee) filed a Petition of Charges alleging that respondent, inter alia, misappropriated client and third-party
funds and commingled business funds with client and third-party funds.
The Committee and respondent now jointly move under the Rules for Attorney Disciplinary Matters (22 NYCRR) 1240.8(a)(5) for discipline by consent and request that respondent receive a public censure for his misconduct. The motion is supported by a joint affirmation, which contains a statement of facts, conditional admissions of professional misconduct, factors in mitigation, and agreed upon discipline. The motion is also accompanied by respondent's affidavit acknowledging his admission to the stipulated facts, his consent to the agreed upon discipline, which he has freely and voluntarily given, and his full awareness of the consequences of such consent (22 NYCRR 1240.8[a][5][i] and [ii]).
Respondent conditionally admits that his actions violated the charges alleged in the Petition of Charges, including that:
Respondent misappropriated client and third-party funds in violation of New York Rules of Professional Conduct (22 NYCRR 1200.0) (RPC) 1.15(a) by failing to maintain intact client and third-party funds held in his Citibank escrow account incident to his practice of law, and permitting the balances of said funds to fall below the amount required to be maintained therein for the benefits of clients and third parties;
Respondent commingled said funds in violation of RPC rule 1.15(a) by depositing business funds into his Citibank escrow account, which simultaneously held client and third-party funds;
Respondent failed to hold client and third-party funds in a separate account incident to his practice of law in violation of RPC rule 1.15(b)(1) by depositing business funds into his Citibank escrow account, which simultaneously held client and third-party funds;
Respondent violated RPC rule 1.15(d)(2) by failing to make accurate entries of all financial transactions in his firm's special account, in his firm's records of receipts and disbursements, in a ledger book or similar record, or other books of account kept in the regular course of business;
Respondent engaged in conduct that adversely reflected on his fitness as a lawyer in violation of RPC rule 8.4(h) by using his Citibank escrow account as a business account to hold and disburse business funds out of a concern that Citibank might have unilaterally withdrawn said funds to satisfy a loan if they were kept in his business account while he refinanced the Citibank line of [*3]credit loan; and
Respondent engaged in conduct that adversely reflected on his fitness as a lawyer in violation of RPC rule 8.4(h) by virtue of having committed all of the misconduct described above.
The parties have stipulated to the following factors in mitigation:
Respondent has no prior discipline, nor have any complaints been made against him since the misconduct at issue occurred; he accepted full responsibility for his misconduct and expressed sincere remorse, contrition, and embarrassment for it; and fully cooperated with the Committee's investigation; and
Respondent had no venal intent; he has taken extensive remedial measures to correct his failure to maintain proper bookkeeping records; he asserts that there is no risk of his engaging in future misconduct; he is well regarded in the legal community and has an excellent reputation for the character traits of honesty and integrity and for adherence to standards of professional ethics; and he has engaged in volunteer work in his community and provided pro bono legal services to those in need.
The parties agree that the appropriate sanction herein is a public censure. In support they cite, inter alia, Matter of Peskin, 173 AD3d 47 [1st Dept 2019]; Matter of Meloni, 154 AD3d 67 [1st Dept 2017]; and Matter of Cardenas, 124 AD3d 123 [1st Dept 2014]. The parties also cite Matter of Rokacz, 121 AD3d 134 [1st Dept 2014]; Matter of Guillorn, 114 AD3d 134 [1st Dept 2013]; Matter of Rosenberg, 109 AD3d 225 [1st Dept 2013]; and Matter of Dyer, 89 AD3d 182 [1st Dept 2011].
Additionally, the parties argue that respondent's case significantly differs from
those in which attorneys were suspended for misuse of escrow accounts to shield funds from tax authorities and/or judgment creditors.
In light of respondent's admitted misconduct, the mitigating factors presented, and the relevant case law, the parties' motion for discipline by consent should be granted and respondent should be publicly censured (see e.g., Matter of Meloni, 154 AD3d at 67). Moreover, the Committee's Petition of Charges should be denied as moot.
All concur.
It is Ordered that the parties' joint motion pursuant to 22 NYCRR 1240.8(a)(5) for discipline by consent is granted, and
It is further Ordered that respondent, Nicholas J. Fortuna, is publicly censured for his misconduct, and
It is further Ordered that the Committee's Petition of Charges is denied as moot.
Entered: [December 3, 2020] |
4,639,345 | 2020-12-03 20:08:47.389956+00 | null | http://www.courts.state.ny.us/reporter/3dseries/2020/2020_07279.htm | Matter of Cadus Corp. Stockholders Litig. (2020 NY Slip Op 07279)
Matter of Cadus Corp. Stockholders Litig.
2020 NY Slip Op 07279
Decided on December 03, 2020
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided and Entered: December 03, 2020
Before: Kapnick, J.P., Gesmer, Kern, Shulman, JJ.
Index No. 653318/18 Appeal No. 12545 Case No. 2020-02001
[*1]In the Matter of Cadus Corp. Stockholders Litigation.
Emily Kahn-Freedman et al., Plaintiffs-Appellants,
Cadus Corporation et al., Defendants-Respondents.
Rigrodsky & Long, P.A., Garden City (Timothy J. MacFall of counsel), and Levi & Korsinsky, LLP, Washington DC (Donald J. Enright, of the bar of the District of Columbia, admitted pro hac vice, of counsel), for appellants.
Law Office of Robert R. Viducich, New York (Robert Viducich of counsel), for Cadus Corporation, Starfire Holding Corporation, Barberry Corporation, High River Limited Partnership, Carl C. Icahn and Hunter C. Gary, respondents.
Dorsey & Whitney LLP, New York (Kaleb McNeely of counsel), for Jack Wasserman, Peter Liebert and Tara Elias Schuchts, respondents.
Order, Supreme Court, New York County (O. Peter Sherwood, J.), entered March 3, 2020, which granted defendants' motions to dismiss the complaint, unanimously affirmed, with costs.
The motion court properly applied the business judgment rule instead of the entire fairness test to the buyout of defendant Cadus Corporation by its controlling shareholder, defendant Starfire Holding Corporation (see Kahn v M & F Worldwide Corp. , 88 A3d 635, 645 [Del 2014]). Plaintiffs failed to show, as pertinent here, that the Special Committee that approved the transaction was not independent, that the Special Committee did not meet its duty of care in negotiating a fair price, or that the vote of the minority was not informed (see id. ).
Plaintiffs failed to allege facts from which a reasonable inference could be drawn that a majority of the Special Committee members — defendants Jack Wasserman, Peter Liebert, and Tara Elias Schuchts — were "sufficiently loyal to, beholden to, or otherwise influenced by an interested party [defendant Carl C. Icahn, chairman, CEO and majority owner of Starfire] so as to undermine [their] ability to judge the matter on its merits" (see In re Books-A-Million, Inc. Stockholders Litig. , 2016 WL 5874974, *9, 2016 Del Ch LEXIS 154, *27-28 [Oct. 10, 2016], affd 164 A3d 56 [Del 2017]; Southeast Pa. Transp. Auth. v Volgenau , 2013 WL 4009193, *13, 2013 Del Ch LEXIS 197, *45-46 [Aug. 5, 2013], affd 91 A3d 562 [Del 2014]). "Bare allegations that directors are friendly with, travel in the same social circles as, or have past business relationships with the proponent of a transaction . . . are not enough to rebut the presumption of independence" (M & F Worldwide , 88 A3d at 649). Plaintiffs' allegations about the directors' friendships with Icahn are not sufficient to suggest the sort of personal relationship (one in which the parties are "as thick as blood relations") that would circumvent this rule (see In re MFW Shareholders Litig. , 67 A3d 496, 509 n 37 [Del Ch 2013], affd sub nom M & F Worldwide , 88 A3d 635 [2014]). Nor did plaintiffs demonstrate that any financial ties between Icahn and at least Liebert and Schuchts were "material" (see M & F Worldwide , 88 A3d at 649; In re Rouse Props. Fiduciary Litig. , 2018 Del Ch LEXIS 93, *34-35 [Mar. 9, 2018]). Even if Wasserman were found to be conflicted based on his service on multiple boards of Icahn-controlled companies, including at the time of the buyout, this would not undermine the independence of the Special Committee as a whole, since plaintiffs did not allege that he controlled and dominated the committee or failed to disclose his interests to it (see Volgenau , 2013 WL 4009193 at *13, 2013 Del Ch LEXIS 197 at *45).
Plaintiffs failed to allege sufficiently that the Special Committee members acted with gross negligence so as to breach their duty of care (see generally In re Walt Disney Co. Derivative Litig. , 907 A2d 693, 749-50 [Del Ch 2005], affd 906 A2d 27 [Del 2006]). Plaintiffs' claim that the committee breached this duty by selecting Wasserman as its chair is not properly considered because they did not allege this fact in the complaint. The committee's determination to hire Dorsey & Whitney LLP as legal counsel, even though this firm had once previously represented Icahn and his business partners, does not rise to the level of gross negligence.
Plaintiffs failed to allege sufficiently that the vote of the minority shareholders was not fully informed. Defendants were not required to disclose additional information about Liebert and Schuchts's relationships with Icahn, because it was not material (see M & F Worldwide , 88 A3d at 649; In re Rouse Props. Fiduciary Litig., 2018 Del Ch LEXIS 93 at *34-35; Loudon v Archer-Daniels-Midland Co. , 700 A2d 135, 145-46 [Del 1997]).
Plaintiffs do not dispute that dismissal is appropriate if the business judgment rule is applied. In view of our disposition of these issues, we need not reach their arguments with [*2]respect to exculpation or the outcome of entire fairness review.THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: December 3, 2020 |
4,639,346 | 2020-12-03 20:08:47.605292+00 | null | http://www.courts.state.ny.us/reporter/3dseries/2020/2020_07307.htm | Matter of Amanda M.T. (Charles Franklin T.) (2020 NY Slip Op 07307)
Matter of Amanda M.T. (Charles Franklin T.)
2020 NY Slip Op 07307
Decided on December 03, 2020
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided and Entered: December 03, 2020
Before: Friedman, J.P., Kapnick, Gesmer, Kern, Shulman, JJ.
Docket No. B-06753-5/18 Appeal No. 12541-12541A Case No. 2019-03455
[*1]In the Matter of Amanda M.T., Also Known as Amanda T., and Another, Dependent Children Under Eighteen Years of Age, etc., Charles Franklin T. Also Known as Charles T., Respondent-Appellant, New York Foundling Hospital, Petitioner-Respondent.
Steven P. Forbes, Jamaica, for appellant.
Daniel Gartenstein, Long Island City, for respondent.
Dawne A. Mitchell, The Legal Aid Society, New York (Diane Pazar of counsel), attorney for the children.
Orders, Family Court, New York County (Jane Pearl, J.), entered on or about June 6, 2019, which, upon a finding of permanent neglect, terminated respondent-father's parental rights to the subject children and transferred custody of the children to petitioner-agency, New York Foundling Hospital, and the Commissioner of Social Services for the purpose of adoption, unanimously affirmed, without costs.
The finding of permanent neglect was supported by clear and convincing evidence because the record shows that the agency expended diligent efforts by discussing with respondent the necessity of completing his service plan, scheduling visitation, and referring him for mental health evaluation and treatment (see Matter of Tion Lavon J. [Saadisha J.], 159 AD3d 579 [1st Dept 2018]). The record also shows that respondent permanently neglected the children despite the agency's diligent efforts, because in failing to comply with mental health services and visit consistently, he failed to plan for and maintain contact with the children and permanently neglected them (see e.g. Matter of Malcolm M.L., 177 AD3d 442, 443 [1st Dept 2019]; Matter of Zariah M.E. 171 AD3d 607, 608 [1st Dept 2019]).
A preponderance of the evidence supports the Family Court's determination that it was in the children's best interest to terminate respondent's parental rights and free them for adoption (see Matter of Star Leslie W., 63 NY2d 136, 147-48 [1984]). At the time of the proceedings, the children had spent their entire lives in foster care. Two of the children reside together in their long-term foster home, where they are well-cared for and where they wish to remain, and their foster parents wish to adopt them (see Matter of Jada Serenity H. v Clifton H., 60 AD3d 469, 874 NYS2d 113 [1st Dept 2009]) and will allow for contact with the third child (see Matter of Tabitha T.S.M., 159 AD3d 703, 705 [2d Dept 2018] [citations omitted]).
A suspended judgment was not appropriate here, because there was no evidence that respondent had a realistic and feasible plan to provide an adequate and stable home for the children (see e.g. Matter of Felicia Malon Rogue J., 146 AD3d 725, 726 [1st Dept 2017]). The record also shows that respondent has delayed in addressing his mental health treatment, which remained unresolved at the time of disposition (see Matter of Jada Serenity H., 60 AD3d 469).
We find respondent's contention that trial counsel was ineffective at the dispositional hearing unsupported and unavailing (see Matter of Adam M. M. [Sophia M.],179 AD3d 801 [2d Dept 2020]).
We have considered respondent's remaining arguments and find them unavailing.THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: December 3, 2020 |
4,639,347 | 2020-12-03 20:08:47.829328+00 | null | http://www.courts.state.ny.us/reporter/3dseries/2020/2020_07265.htm | Matter of 151st St. Discount Liquors, Inc. v New York State Liq. Auth. (2020 NY Slip Op 07265)
Matter of 151st St. Discount Liquors, Inc. v New York State Liq. Auth.
2020 NY Slip Op 07265
Decided on December 03, 2020
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided and Entered: December 03, 2020
Before: Renwick, J.P., Manzanet-Daniels, Mazzarelli, Singh, Scarpulla, JJ.
Index No. 161298/19 Appeal No. 12536 Case No. 2020-01533
[*1]In the Matter of 151st St. Discount Liquors, Inc., Petitioner-Respondent,
v
New York State Liquor Authority, Respondent-Appellant.
Gary Meyerhoff, New York State Liquor Authority, Albany (Mark D. Frering of counsel), for appellant.
Joseph A. Altman, P.C., Bronx (Joseph A. Altman of counsel), for respondent.
Judgment, Supreme Court, New York County (Arthur F. Engoron, J.), entered on or about December 20, 2019, granting the petition to the extent of annulling respondent's cancellation of petitioner's liquor license effective November 15, 2019, ordering petitioner to pay a $25,000 fine, and suspending the license for 30 days, unanimously reversed, on the law, without costs, the judgment vacated, the petition denied, and the proceeding brought pursuant CPLR article 78 dismissed.
Petitioner, a dissolved corporation by proclamation pursuant to Tax Law § 203-a, lacked legal capacity to bring this proceeding to review, annul and vacate the cancellation of its liquor license, warranting dismissal of its article 78 petition (see Business Corporation Law § 1005[1]; B & O Realty Corp. v Chong-Yau Jeng, 201 AD2d 439 [1st Dept 1994]).
In any event, the punishment imposed by respondent of license cancellation and bond forfeiture was proportionate to petitioner's fourth offense, in less than three years, of selling alcohol to a minor in violation of Alcoholic Beverage Control Law § 65(1), and does not shock one's sense of fairness (see Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck , Westchester County, 34 NY2d 222, 233 [2000]; Matter of Monessar v New York State Liq. Auth., 266 AD2d 123 [1st Dept 1999]). There was no basis for the article 78 court to annul the penalty imposed by respondent and impose its own (see Matter of Soho Alliance v New York State Liq. Auth., 32 AD3d 363, 363 [1st Dept 2006]). THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: December 3, 2020 |
4,639,348 | 2020-12-03 20:08:48.067907+00 | null | http://www.courts.state.ny.us/reporter/3dseries/2020/2020_07280.htm | Lumbermens Mut. Cas. Co. v A B Med. Servs., PLLC (2020 NY Slip Op 07280)
Lumbermens Mut. Cas. Co. v A B Med. Servs., PLLC
2020 NY Slip Op 07280
Decided on December 03, 2020
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided and Entered: December 03, 2020
Before: Friedman, J.P., Kapnick, Gesmer, Kern, Shulman, JJ.
Index No. 100813/11 Appeal No. 12546 Case No. 2020-01039
[*1]Lumbermens Mutual Casualty Company et al., Plaintiffs-Respondents,
v
A B Medical Services, PLLC, Also Known as AB Medical Services, P.C., Also Known as A.B. Medical, PLLC, Defendant-Appellant.
The Leyvi Law Group, P.C., Brooklyn (Maksim Leyvi of counsel), for appellant.
Goldberg, Miller & Rubin, New York (Harlan R. Schreiber of counsel), for respondents.
Order and judgment (one paper), Supreme Court, New York County (Arthur F. Engoron, J.), entered on September 4, 2019, which, after a nonjury trial, declared that plaintiff insurers have no duty to pay no-fault benefits to defendant for any claims submitted for services provided by Emad N. Elyas, P.T., Jeffrey S. Schwartz, MD, Vadim Miloradovich, MD, Ginete N. Montaus, P.T., El-Sayed Ehab G. Mosry, P.T., Sherif M. Diab, P.T., Benjamin Yentel, MD, and Zhanna Nudelman, MD, on the ground that they are independent contractors, not employees of [*2]defendant, which therefore improperly billed for their services, in violation of 11 NYCRR 65-3.11(a), unanimously affirmed, with costs.
As an initial issue, 11 NYCRR 65-3.11(a) limits no-fault medical billing to employees of the provider that submits claims for no-fault benefits. It is submitted that Supreme Court properly granted judgment in favor of plaintiffs, because the treating providers were independent contractors, as opposed to employees. The record supports a finding that the "degree of control exercised by the purported employer" (Bynog v Cipriani Group, 1 NY3d 193, 198 [2003]), "not only over the results produced but also over the means used to produce the results" (Matter of O'Brien v Spitzer, 7 NY3d 239, 242 [2006]), was insufficient to give rise to an employer-employee relationship.
"Factors relevant to assessing control include whether the worker (1) worked at his [or her] convenience, (2) was free to engage in other employment, (3) received fringe benefits, (4) was on the employer's payroll, and (5) was on a fixed schedule" (Bynog, 1 NY3d at 198). The factors that militate against defendant's position that the treating providers were employees include the trial testimony that: defendant could not monitor the quality of the work billed because its principal was not qualified in these fields of medicine, defendant used staffing services to find professionals, defendant's principal could not recall giving the professionals health insurance and required them to provide their own malpractice insurance, he could not recall providing the professionals with certain nerve conduction equipment, the professionals were all part-time and free to take on other jobs, and although the principal provided the professionals with W-2 forms, he did so only because he thought he was required to do so by insurers.THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: December 3, 2020 |
4,639,349 | 2020-12-03 20:08:48.301168+00 | null | http://www.courts.state.ny.us/reporter/3dseries/2020/2020_07282.htm | Jianming Lyu v Ruhnn Holdings Ltd. (2020 NY Slip Op 07282)
Jianming Lyu v Ruhnn Holdings Ltd.
2020 NY Slip Op 07282
Decided on December 03, 2020
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided and Entered: December 03, 2020
Before: Friedman, J.P., Kapnick, Gesmer, Kern, Shulman, JJ.
Index No. 655420/19 Appeal No. 12553 Case No. 2020-02555
[*1]Jianming Lyu, etc., Plaintiff-Respondent,
v
Ruhnn Holdings Limited et al., Defendants-Appellants, Min Feng et al., Defendants.
Simpson Thacher & Bartlett LLP, New York (George S. Wang of counsel), for Ruhnn Holdings Limited and Xiaocao XU, appellants.
Skadden, Arps, Slate, Meagher & Flom LLP, New York (Scott D. Musoff of counsel), for Citigroup Global Markets Inc. and UBS Securities LLC, appellants.
Robbins Geller Rudman & Dowd LLP, San Diego, CA (Joseph D. Daley of the bar of the State of California, admitted pro hac vice, of counsel), and Robbins Geller Rudman & Dowd LLP, Melville (William J. Geddish, of the bar of the State of California, admitted pro hac vice, of counsel), for respondent.
Order, Supreme Court, New York County (Jennifer G. Schecter, J.), entered on or about April 22, 2020, which, insofar as appealed from as limited by the briefs, denied defendants' motion to dismiss the complaint alleging violations of sections 11, 12(a)(2) and 15 of the [*2]Securities Act of 1933 (15 USC §§ 77k; 77l[a][2]; 77o) in its entirety except to the extent of dismissing the section 12(a)(2) claim as against Ruhnn Holding Limited, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment dismissing the complaint.
Given defendants' disclosure that defendant Ruhnn was shifting to a "platform" model for its online sales and away from the self-owned, "full service" model, the omission of data from the period immediately preceding the issuance of the final prospectus showing that there had already been a reduction in the full service segment of the company did not "significantly alter[] the 'total mix' of information made available" to a reasonable investor (DeMaria v Andersen , 318 F3d 170, 180 [2d Cir 2003] [some internal quotation marks omitted]).
As the full service sector's revenue was not closely related to either the number of stores or the number of online influencers serving the segment, the focus on these metrics was "myopic"; disclosure would not have given a more accurate picture of the status of the business (see Stadnick v Vivint Solar, Inc. , 861 F3d 31, 38 [2d Cir 2017]).
Absent a violation of section 11 or 12, the claims against the individuals (under section 15) must also be dismissed.
The complaint fails to state a cause of action for violation of either item 303 or item 305 of Regulation S-K (see 17 CFR 229.303(a)(3)(ii); 229.105), as the offering material disclosed both the shift to the platform model and the risks associated with that shift. THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: December 3, 2020 |
4,639,350 | 2020-12-03 20:08:48.5329+00 | null | http://www.courts.state.ny.us/reporter/3dseries/2020/2020_07278.htm | J.V. v Robles (2020 NY Slip Op 07278)
J.V. v Robles
2020 NY Slip Op 07278
Decided on December 03, 2020
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided and Entered: December 03, 2020
Before: Manzanet-Daniels, J.P., Mazzarelli, Singh, Scarpulla, JJ.
Index No. 22131/12E Appeal No. 12533 Case No. 2019-3706
[*1]J.V., an Infant by His Mother Chelsea M.,et al., Plaintiffs-Appellants,
v
Pedro Robles et al., Defendants-Respondents.
Hasapidis Law Offices, South Salem (Annette G. Hasapidis of counsel), for appellants.
VoutÉ, Lohrfink McAndrew Meisner & Roberts, LLP, White Plains (John R. Braunstein of counsel), for respondents.
Order, Supreme Court, Bronx County (Robert T. Johnson, J.), entered April 18, 2019, which granted defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.
In this personal injury action stemming from infant plaintiff J.V.'s alleged carbon monoxide poisoning, defendants made out their prima facie burden showing that defendants did not create or have notice of an alleged dangerous carbon dioxide condition in plaintiffs' apartment. Defendants submitted evidence that the carbon monoxide detector in plaintiffs' [*2]apartment was installed and operable that no one else residing in the apartment was tested for carbon monoxide poisoning at the time of the infant plaintiff's hospitalization, and their expert opined as to a lack of causality. Defendants' expert pediatric critical care physician was qualified to opine that there was no causal relationship between the infant plaintiff's alleged carbon monoxide poisoning and plaintiff mother's heating the apartment, in the alleged absence of adequate heat provided by defendants, by turning on the burners on the stove, boiling water, and running the oven with the door open (see generally Price v New York City Hous. Auth., 92 NY2d 553, 559 [1998]; Romano v Stanley, 90 NY2d 444, 452 [1997]; Limmer v Rosenfeld, 92 AD3d 609 [1st Dept 2012]; Mustello v Berg, 44 AD3d 1018, 1019 [2d Dept 2007], lv denied 10 NY3d 711 [2008]; Joswick v Lenox Hill Hosp., 161 AD2d 352, 355 [1st Dept 1990]).
Plaintiffs failed to raise an issue of fact in opposition, because their expert did not casually relate the infant plaintiff's injury to the manner in which plaintiff mother heated the apartment (see Foley v Chateau Rive Equities, LLC, 172 AD3d 599 [1st Dept 2019]; Sternberg v Rugova, 162 AD3d 456, 457 [1st Dept 2018]).
We have considered plaintiffs' remaining contentions to the extent they are not improperly raised for the first time on appeal and found them unavailing.THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: December 3, 2020 |
4,639,351 | 2020-12-03 20:08:48.769592+00 | null | http://www.courts.state.ny.us/reporter/3dseries/2020/2020_07277.htm | Hiciano v Benson (2020 NY Slip Op 07277)
Hiciano v Benson
2020 NY Slip Op 07277
Decided on December 03, 2020
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided and Entered: December 03, 2020
Before: Friedman, J.P., Kapnick, Gesmer, Kern, Shulman, JJ.
Index No. 20271/13E Appeal No. 12550 Case No. 2020-00984
[*1]Zobeida Hiciano, Plaintiff-Respondent,
v
Barry D. Benson et al., Defendants, Tremont Electric Co., Inc., Defendant-Appellant.
Weber Gallagher Simpson Stapleton Fires & Newby LLP, New York (Robert A. Suarez of counsel), for appellant.
The Altman Law Firm, PLLC, Woodmere (Michael T. Altman of counsel), for respondent.
Order, Supreme Court, Bronx County (Ben R. Barbato, J.), entered September 9, 2019, which granted plaintiff's posttrial motion to set aside the jury's apportionment of fault, and for additur with respect to the jury's awards for pain and suffering and loss of enjoyment of life, to the extent that it ordered a new trial unless defendants accepted allocation of 50% fault to both plaintiff and defendants as well as awards of $900,000 for past, and $900,00 for future, pain and suffering, unanimously reversed, on the law and facts, without costs, and the verdict reinstated.
The jury's apportionment of 65% fault to plaintiff and 35% fault to defendants was not [*2]against the weight of the evidence where, at the time of the accident, both plaintiff and the driver of the vehicle were in violation of the Vehicle and Traffic Law, neither plaintiff nor the driver saw each other despite having unobstructed views, the driver had begun the process of parallel parking, angling the vehicle in reverse at a 30- to 45-degree angle to the right, and plaintiff, who was jaywalking, walked behind the back of the vehicle from the left (see e.g. Stewart v Manhattan & Bronx Surface Tr. Operating Auth., 60 AD3d 445, 445-446 [1st Dept 2009]; see generally CPLR 4404[a]; Bun Sin Lee v Pathmark Stores, 1 AD3d 219, 219 [1st Dept 2003]). The jury's awards for pain and suffering and loss of enjoyment of life ($100,000 past and $50,000 future) did not deviate substantially from what would constitute reasonable compensation for plaintiff's injuries where the jury could have reasonably found that the only injuries plaintiff sustained as a result of the accident were a right radial head fracture that healed without residual impairment or pain, and a sprain or strain of the lumbar spine (see e.g. Vanini v Ramtol Serv. Corp., 22 AD3d 232, 233 [1st Dept 2005]; Park v City of New York, 70 AD3d 406, 406 [1st Dept 2010]; Pinkowski v Fuller, 5 AD3d 907, 909 [3d Dept 2004]; see generally CPLR 5501[c]).THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: December 3, 2020 |
4,654,859 | 2021-01-27 07:15:10.480806+00 | null | http://www.search.txcourts.gov/RetrieveDocument.aspx?DocId=17881&Index=%5c%5c10%2e20%2e4%2e7%5cTamesIndexes%5ccoa05%5cOpinion | Affirm; Opinion Filed January 19, 2021
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-19-00123-CV
DIANA SIMPSON AND JOHN HARDING, Appellants
V.
OAKS ON MONTFORT CONDOMINIUM ASSOCIATION,
VERACITY INC., AND LORI WELSH, Appellees
On Appeal from the 95th District Court
Dallas County, Texas
Trial Court Cause No. DC-16-10283
MEMORANDUM OPINION
Before Justices Myers, Garcia,1 and Pedersen, III
Opinion by Justice Pedersen, III
Appellants Diana Simpson and John Harding sought a declaratory judgment
that appellees, Oaks on Montfort Condominium Association, Veracity Inc., and Lori
Welsh, did not have the right to enter into their condominium unit to perform repairs
and did not have the right to charge them for security fees. Following a bench trial,
the trial court entered a final judgment in favor of appellees. In eight issues, Simpson
and Harding contend they had no duty to cooperate with repairs the Association was
1
The Honorable Dennise Garcia succeeded the Honorable Bill Whitehill, a member of the original
panel. Justice Garcia has reviewed the briefs and the record before the Court.
performing, it was unnecessary for anyone to enter their condominium to effect such
repairs, and appellees had no right to enter their condominium. Simpson and Harding
complain that the Association was not authorized to charge them for the cost of
having security present during completion of the repairs. Simpson and Harding also
challenge several evidentiary rulings. We affirm.
Background
The Oaks on Montfort Condominiums is a residential condominium
community located in Dallas, Texas. The Oaks on Montfort Condominium
Association (the Association), a Texas non-profit corporation, is a homeowners’
association that administers the operation and management of the condominium
community.2 The Association contracted with Veracity, a professional management
company, to manage day-to-day operations. Welsh, a Veracity employee, was the
property manager assigned to the Association at all times relevant to this litigation.3
2
Because the Association was created before January 1, 1994, it is governed primarily by the
Condominium Act (the “Old Act”), codified at chapter 81 of the Texas Property Code. See TEX. PROP.
CODE ANN. § 81.0011(a). However, the Association is also governed by the Uniform Condominium Act
(the “Uniform Act”), codified at chapter 82 of that code, to the extent provided by section 82.002. Id. §
81.0011(b). Section 82.002 provides a list of specific provisions in the Uniform Act that apply to pre-1994
condominium regimes. Those listed provisions apply prospectively and they “do not invalidate existing
provisions of the declaration, bylaws, or plats or plans of a condominium for which the declaration was
recorded before January 1, 1994.” Id. § 82.002(c); see Holly Park Condominium Homeowners’ Ass’n, Inc.
v. Lowery,
310 S.W.3d 144
, 146 (Tex. App.—Dallas 2010, pet. denied).
3
For purposes of this opinion, we refer to the Association, Veracity, and Welsh collectively as “the
Association.”
–2–
Simpson is the owner of a condominium, Unit 1205 (the Unit), at the Oaks on
Montfort Condominiums. Harding lives in the Unit with Simpson but is not a record
owner.
In June 2016, unit 1206, the condominium directly above Simpson’s Unit,
experienced a deflection in the floor around the fireplace hearth. The Association
hired Classic Construction (Classic) to investigate the problem and perform any
necessary repairs. Classic account executive Geary Free testified at trial that in order
to determine the cause and extent of the problem, Classic employees pulled up the
subflooring in unit 1206 and discovered wood rot on the top plate of a web truss
between that unit and Simpson’s Unit below. Classic determined it would be
necessary to inspect the web truss from below in order to ascertain the extent of the
wood rot damage.
Veracity asked Classic if it could perform the necessary investigation and
repairs without entering Simpson’s Unit. With respect to the inspection, Classic
believed that it was imperative to inspect the truss from below to ensure that the
building was structurally sound. Classic agreed that it might be possible to perform
repairs from the outside of the building but cautioned that doing so would be
significantly more expensive and it would be more difficult to guarantee the success
of the repairs.
Veracity and Classic attempted to inspect the under-side of the truss and the
vertical studs from Simpson’s Unit. According to Free, Harding was so aggressive
–3–
and hostile, Classic could not complete the inspection. The Association then
contacted Simpson in writing, requesting cooperation in coordinating a date and time
for the inspection. The Association received no response so Veracity scheduled the
inspection and hired Deputy Sheriff James Rodriguez, an off-duty officer with the
Dallas County Sheriff’s Department, to accompany Classic’s work crew.
During the inspection, Harding was belligerent and hostile toward Welsh and
Classic’s workers. As a result, Classic’s project manager informed Veracity that out
of concern for the safety of his workers, Classic would not perform the necessary
repairs without security present. Deputy Rodriguez agreed with Classic’s assessment
and recommended that the Association hire security.
Classic ultimately made the repairs from outside of the building. The
Association contracted with off-duty Dallas police officers to be present during the
repair work. The Association’s decision as to the number of officers to hire was
based upon the recommendation of Deputy Rodriguez. The Association then
charged their expenses for security costs, management fees, and attorney’s fees to
Simpson’s account.
Simpson and Harding filed suit against the Association seeking declaratory
relief and asserting a cause of action for intentional infliction of emotional distress.
They subsequently amended their petition to delete the intentional infliction of
emotional distress cause of action, leaving only their request for declaratory
judgment as to whether the Association had the right to enter the Unit to perform
–4–
repairs, and whether the Association had the right to charge fees for security to
Simpson’s account.
After a bench trial, the trial court entered judgment in favor of the Association.
Upon request, the trial court issued findings of fact and conclusions of law. Simpson
and Harding now appeal.
Applicable Law
A. Declaratory Judgment
The Uniform Declaratory Judgments Act (“DJA”) generally permits a person
who is interested under a deed or other contract, or whose rights, status, or other
legal relations are affected by a statute or contract, to obtain a declaration of rights,
status, or other legal relations thereunder. TEX. CIV. PRAC. & REM. CODE ANN. §
37.004(a). The purpose of the DJA is “to settle and to afford relief from uncertainty
and insecurity with respect to rights, status and other legal relations; and it is to be
liberally construed and administered.” Id. § 37.002(b); see Garden Oaks Maint. Org.
v. Chang,
542 S.W.3d 117
, 123 (Tex. App.—Houston [14th Dist.] 2017, no pet.).
We review declaratory judgments under the same standards as other judgments and
decrees and look to the procedure used to resolve the issue at trial to determine the
appropriate appellate standard of review. See CIV. PRAC. & REM. §37.010; Solar
Soccer Club v. Prince of Peace Lutheran Church of Carrollton,
234 S.W.3d 814
,
820 (Tex. App.—Dallas 2007, pet. denied).
–5–
B. Standards of Review
In an appeal from a bench trial, the trial court’s findings of fact are reviewable
for legal and factual sufficiency of the evidence by the same standards that are
applied in reviewing the evidence supporting a jury’s verdict. BMC Software Belg.,
N.V. v. Marchand,
83 S.W.3d 789
, 794 (Tex. 2002); Sheetz v. Slaughter,
503 S.W.3d 495
, 502 (Tex. App.—Dallas 2016, no pet.). When the appellate record contains a
reporter’s record, as it does in this case, findings of fact are not conclusive and are
binding only if supported by the evidence. Fulgham v. Fischer,
349 S.W.3d 153
, 157
(Tex. App.—Dallas 2011, no pet.).
When conducting a legal sufficiency review, we consider whether the
evidence at trial would enable a reasonable and fair-minded factfinder to reach the
challenged verdict. Gunn v. McCoy,
554 S.W.3d 645
, 658 (Tex. 2018); Guillory v.
Dietrich,
598 S.W.3d 284
, 293 (Tex. App.—Dallas 2020, pet. denied). Evidence is
legally insufficient to support a verdict when:
(1) the record discloses a complete absence of evidence of a vital fact;
(2) the court is barred by rules of law or of evidence from giving weight
to the only evidence offered to prove a vital fact; (3) the evidence
offered to prove a vital fact is no more than a mere scintilla; or (4) the
evidence establishes conclusively the opposite of a vital fact.
Gunn, 554 S.W.3d at 658 (citing Bustamante v. Ponte,
529 S.W.3d 447
, 455–56
(Tex. 2017)). More than a scintilla of evidence exists when reasonable and fair-
minded jurors might reach different conclusions about the verdict based on the
evidence admitted in the trial.
Id.
(citing King Ranch, Inc. v. Chapman, 118 S.W.3d
–6–
742, 751 (Tex. 2003). All the record evidence must be considered “in the light most
favorable to the party in whose favor the verdict has been rendered,” and “every
reasonable inference deducible from the evidence is to be indulged in that party’s
favor.” Bustamante, 529 S.W.3d at 456 (quoting Merrell Dow Pharm., Inc. v.
Havner,
953 S.W.2d 706
, 711 (Tex. 1997)).
When conducting a factual sufficiency review, we consider all the evidence
supporting and contradicting the finding in a neutral light. Fulgham,
349 S.W.3d at
157 (citing Plas-Tex, Inc. v. U.S. Steel Corp.,
772 S.W.2d 442
, 445 (Tex. 1989)).
We set aside the finding for factual insufficiency only if the finding is so contrary to
the evidence as to be clearly wrong and manifestly unjust.
Id.
(citing Cain v. Bain,
709 S.W.2d 175
, 176 (Tex. 1986) (per curiam)). In a bench trial, the trial court, as
factfinder, is the sole judge of the credibility of the witnesses.
Id.
As long as the
evidence falls within the zone of reasonable disagreement, we will not substitute our
judgment for that of the factfinder.
Id.
(citing City of Keller v. Wilson,
168 S.W.3d 802
, 822 (Tex. 2005)). To reverse a verdict on grounds of factual insufficiency, the
reviewing court must “detail the evidence relevant to the issue in consideration and
clearly state why the jury’s finding is factually insufficient or is so against the great
weight and preponderance as to be manifestly unjust, shock the conscience, or
clearly demonstrates bias.” Windrum v. Kareh,
581 S.W.3d 761
, 781 (Tex. 2019).
We review the trial court’s conclusions of law de novo. BMC Software Belg.,
N.V., 83 S.W.3d at 794; Sheetz, 503 S.W.3d at 502. We are not bound by the trial
–7–
court’s legal conclusions, but the conclusions of law will be upheld on appeal if the
judgment can be sustained on any legal theory supported by the evidence. Fulgham,
349 S.W.3d at
157–58. Incorrect conclusions of law will not require reversal if the
controlling findings of fact will support a correct legal theory.
Id. at 158
. Moreover,
conclusions of law may not be reversed unless they are erroneous as a matter of law.
Id.
We review a trial court’s decision to admit or exclude evidence for an abuse
of discretion. Gharda USA, Inc. v. Control Sols., Inc.,
464 S.W.3d 338
, 347 (Tex.
2015); In re A.R.M.,
593 S.W.3d 358
, 373 (Tex. App.—Dallas 2018, pet. denied).
The trial court’s evidentiary ruling will be upheld if there is any legitimate basis for
the ruling. Owens–Corning Fiberglas Corp. v. Malone,
972 S.W.2d 35
, 43 (Tex.
1998); In re Estate of Miller,
243 S.W.3d 831
, 837 (Tex. App.—Dallas 2008, no
pet.). A trial court abuses its discretion when it acts “without reference to any guiding
rules and principles.” Starwood Mgmt., LLC v. Swaim,
530 S.W.3d 673
, 678 (Tex.
2017) (quoting Downer v. Aquamarine Operators, Inc.,
701 S.W.2d 238
, 241–42
(Tex. 1985)). Even if an appellant establishes error, appellate courts reverse a
judgment based on an erroneous evidentiary ruling only if the error probably resulted
in an improper judgment. TEX. R. APP. P. 44.1(a)(1); Nissan Motor Co. Ltd. v.
Armstrong,
145 S.W.3d 131
, 144 (Tex. 2004). “We review the entire record and
require the complaining party to demonstrate that the judgment turns on the
–8–
particular evidence admitted.” Bay Area Healthcare Grp., Ltd. v. McShane,
239 S.W.3d 231
, 234 (Tex. 2007) (citing Nissan Motor, 145 S.W.3d at 144).
Discussion
A. Repairs to the Common Elements
Three of the issues asserted by Simpson and Harding are premised upon their
assertion that the Association did not make repairs to common elements. In their first
issue, Simpson and Harding contend that because the repairs to the upstairs unit were
not common element repairs, it was unnecessary for the Association to enter their
Unit. In their second issue, Simpson and Harding assert they had no duty to
cooperate with repairs that were not common element repairs. In their seventh issue,
they assert that the Association had no right to enter their Unit since there was no
emergency or common element repair. In each of these issues, Simpson and Harding
challenge the trial court’s finding of fact number 4 which states: “It became
necessary for the Association to enter Plaintiff Diana Simpson’s Unit in order to
repair the Common Elements.”
The parties agree that the documents governing the duties and responsibilities
of condominium owners and the Association include the By-Laws for The Oaks on
Montfort Condominium Association (Bylaws), the Condominium Declaration for
the Oaks on Montfort (Declarations), and the Rules and Regulations for Oaks on
Montfort Condominium Association (Rules). The documents define “Common
Elements,” and describe maintenance responsibilities—what is to be maintained by
–9–
a unit’s owner, and what is to be maintained by the Association. Both parties
generally agree that the Association is responsible for the maintenance of the
common elements. However, the parties disagree on what was repaired and whether
it was a common element.
Simpson and Harding assert that the repairs to the upstairs unit consisted of
repairs to a window, a door, the fireplace, and the balcony. They insist that the repairs
did not involve repair to any common element. Harding testified that although he
was not really sure what was done to repair the upstairs unit, it was his understanding
that the repairs did not involve electrical, mechanical, or plumbing issues, and there
was no emergency. Simpson and Harding assert that because the repairs were not
related to any electrical, mechanical, or plumbing issue, or what the Declarations
define as a common element, the Association’s evidence was insufficient to prove
that a common element repair necessitated entry into their Unit.
The Association contends that the evidence showed that significant repair
work was done to the subflooring between the upstairs and downstairs units. Geary
Free, Classic’s project manager, testified that the work performed was largely related
to the rotted wood beneath the subflooring. He also testified that the perimeter wall
of the chimney was badly damaged. He explained that Classic had to rebuild and
reinforce part of the truss that supports the second floor and the web truss supporting
the balcony.
–10–
Victor Bosnich, the President of Veracity, testified that the Association is
responsible for maintaining “common elements.” He stated that according to the
Bylaws, the Association is responsible for any repair to the subflooring. Article XI,
Section 4(a) of the Bylaws provides:
For purposes of maintenance, repair, alteration and remodeling, an
Owner shall be deemed to own the interior nonsupporting walls, the
materials (such as, but not limited to, plaster, gypsum dry wall,
paneling, wallpaper, paint, wall and floor tile and flooring, but not
including the subflooring) making up the finished surfaces of the
perimeter walls, ceilings and floors within the unit . . .
(emphasis added). In addition to the subflooring, Bosnich testified that the
Association is responsible for repairs to chimneys and flues, as set forth on the
maintenance responsibility chart attached to the Bylaws. He opined that because unit
owners are not obligated to maintain the subflooring and are not responsible for
repairs to chimneys, the subflooring and chimneys are common elements. Thus,
according to the testimony of Free and Bosnich, at least some portion of the repair
work performed by Classic was repair to common elements.
The essence of Simpson and Harding’s complaints, however, is that the
Association had no right to enter their Unit. This is a challenge to the trial court’s
conclusion of law number 2, which states: “[t]he Association has the right to enter
Plaintiffs’ Unit as necessary to repair the Common Elements under Section 16 [of
the Declarations].” Free explained why it was necessary to enter Simpson’s Unit to
conduct the inspection. He stated that it was imperative to inspect the truss from
–11–
below to ensure that the building was structurally sound. He also explained why it
was preferable to repair the truss and subflooring from inside the Unit, rather than
working from outside the building. Repairs from the exterior were significantly more
expensive with less guarantee of success.
Bosnich testified that the Declarations give the Association the right to enter
into a unit to repair common elements. Section 16 of the Declarations states in part:
The Association shall have the irrevocable right, to be exercised by the
Managing Agent or Board of Directors of the Association, to have
access to each Unit from time to time during reasonable hours as may
be necessary for the maintenance, repair or replacement of any of the
Common Elements thereon or accessible from such Unit, or for making
emergency repairs therein necessary to prevent damage to the Common
Elements or to another Unit or Units.
The Association argues that based on this provision of the Declarations, it had the
right to enter Simpson’s Unit to inspect and to repair the subflooring and the under-
side of the truss and vertical studs between the upstairs and downstairs units because
they are common elements accessible from that Unit.
Based on our analysis above, we conclude the evidence is legally and factually
sufficient to support finding of fact number 4. Considering all the evidence in the
light most favorable to the Association, there is more than a scintilla of evidence that
at least some of the repairs were repairs to the common elements. In addition, there
is more than a scintilla of evidence that the Association and Classic sought access to
the Unit to inspect damage to the common elements between the upstairs and
downstairs units. Also, the evidence established that the governing documents gave
–12–
the Association the right to access the Unit as necessary for the maintenance and
repair of the common elements. We conclude the evidence is legally sufficient to
support finding of fact number 4. See Gunn, 554 S.W.3d at 658. Further, considering
all the evidence supporting and contradicting the finding, we conclude that the
finding of fact number 4 is not so contrary to the overwhelming weight of the
evidence as to be clearly wrong and manifestly unjust. Fulgham,
349 S.W.3d at 157
.
We also uphold the trial court’s conclusion of law number 2 that the
Association has the right to enter the Unit as necessary to repair the common
elements as provided in section 16 of the Declarations. See
id.
at 157–58. Simpson
and Harding’s first, second, and seventh issues are overruled.
C. Security Charges
Simpson and Harding’s third, fourth and sixth issues pertain to charges
assessed to Simpson’s account for security officers to be on-site whenever Classic
employees worked on unit 1206. In their third issue, Simpson and Harding urge that
the Association was not authorized by its Rules, Bylaws, or Declarations to charge
them for a police presence during the repairs. In their fourth issue, Simpson and
Harding argue that Classic’s refusal to work without security did not mean the
Association could charge those costs to a unit holder. Simpson and Harding’s sixth
issue appears to repeat the arguments made in the third and fourth issues, again
asserting that the governing documents do not authorize the Association to charge
Simpson and Harding for security costs.
–13–
Simpson and Harding’s issues challenge part of the trial court’s finding of fact
number 5, which states: “Plaintiff John Harding refused to cooperate with these
repair attempts and threatened both the Association and its contractors.” Simpson
and Harding deny that Harding threatened the Association and its contractors. They
completely ignore the testimony by the Association’s witnesses describing
Harding’s threats and aggressiveness. And they assert there is no evidence to explain
why the contractor would be nervous or fear for his safety or the safety of his crew.
Simpson and Harding also challenge the court’s conclusion of law number 4, which
states: “[t]he Association’s Rules and Regulations allow the Association to charge
expenses necessitated by Plaintiffs’ actions to Plaintiffs’ account.”
Lawrence Washner, President of the Board of the Association, testified that
the Association hired security to be present during the repair work. He stated that
the Association assessed the cost for such security against Simpson because Harding
threatened workers, said he was going to get his gun, and threatened to punch Lori
Welsh, the property manager, in the face. Washner testified that the Association had
the authority to charge back security costs necessitated by the actions of a unit owner
or occupant. When asked on cross-examination where the Association’s documents
discuss charges for a police presence, he explained that the documents authorize the
Association to charge or seek reimbursement for any additional charges necessitated
by the actions of a unit owner or occupant—the documents do not explicitly
reference charges for a police presence.
–14–
Bosnich testified that Harding’s actions caused the Association to incur
additional security expenses, additional management fees, and additional legal fees.
The Association also incurred additional construction costs because Classic
employees had to return a second time, with Deputy Rodriguez, to complete their
inspection of the underside of the subflooring from the Unit. Bosnich testified that
all of these costs affect the interests of each Association member. He testified that
the Rules authorize the Association to seek reimbursement from Simpson for those
costs. On cross-examination, Bosnich was asked what document gave the
Association authority to charge those costs to Simpson. He read the following
provision into the record:4
If an act or omission by a member of the Association is prejudiced to
the interests of the membership and requires that the Association take
any action or incur any expense in order to protect the interests of the
membership, the association shall be reimbursed by the member for any
expenses which it incurs, including reasonable attorneys’ fees.
Bosnich opined that this provision authorized the Association to charge Simpson for
all additional costs incurred by the Association because of Harding’s actions.
Free testified that because of Harding’s demeanor and aggressiveness, Classic
was unwilling to leave its personnel in the Unit to conduct an inspection. He testified
that even with security on site, the Classic foreman described on-going issues with
4
This “Reimbursement” provision is set forth on page 14 of Defendant’s Exhibit 3, a welcome to the
community manual that provides a summary of various rules and regulations set forth in the Association’s
Bylaws and Declarations. This exhibit was admitted into evidence without objection.
–15–
Harding’s volatility—Harding would start out amenable and then thirty minutes
later, he would start cursing at the crew and security would have to intervene.
Deputy Rodriguez testified that after his interaction with Harding during the
inspection of the Unit, he recommended that the Association hire three security
officers for the safety of the contractors and crew during this construction project.
When appellants’ counsel questioned the need for three officers, Rodriguez
explained that one officer was assigned to the front of the residence to monitor the
front door, the garage entry, and the construction work vehicles parked on the street
and two officers were assigned to the back of the residence where the contactors and
crew were actually working. Rodriguez acknowledged that the property manager
informed him that she had called the police and filed police reports about Harding
on several occasions; however, Rodriguez did not investigate those prior reports.
Rodriguez conceded that when he was at the property, he did not see Harding
threaten anyone.
Based on our analysis above, we conclude the evidence is legally and factually
sufficient to support finding of fact number 5. Considering all the evidence in the
light most favorable to the Association, there is more than a scintilla of evidence that
Harding threatened representatives of the Association and Classic on more than one
occasion. The evidence also established that the Association charged the costs of
providing security to Simpson’s account. Further, the evidence established that the
Association’s documents allowed the Association to charge expenses necessitated
–16–
by Harding’s actions to Simpson’s account. We conclude the evidence is legally
sufficient to support finding of fact number 5. See Gunn, 554 S.W.3d at 658. After
considering all the evidence supporting and contradicting the finding, we also
conclude that finding of fact number 5 is not so contrary to the overwhelming weight
of the evidence as to be clearly wrong and manifestly unjust. Fulgham,
349 S.W.3d at 157
.
We also uphold the trial court’s conclusion of law number 4 that the
Association’s Rules allow the Association to charge expenses necessitated by
Harding’s actions to Simpson’s account. See
id.
at 157–58. Appellants’ third, fourth,
and sixth issues are overruled.
D. Trial Testimony
In their fifth issue, Simpson and Harding complain that the testimony of
Victor Bosnich and James Rodriguez should have been stricken as irrelevant or
hearsay. At trial, counsel for Simpson and Harding made a general objection at the
beginning of the Association’s case, stating that he objected to all but one of the
Association’s witnesses because they had nothing to do with the four corners of the
Association’s Declarations, Bylaws, and Regulations. After ascertaining that the
witnesses had been timely identified, the trial court overruled the general objection,
stating that objections to a witness’s testimony would have to be raised during that
witness’s testimony. Thus, Simpson and Harding were required to follow the usual
process to preserve a complaint that the trial court erroneously admitted evidence.
–17–
1. Bosnich’s Testimony
Simpson and Harding contend that Bosnich’s testimony was “hearsay, non-
relevant and the documents he testified to violate the best evidence rule.” During the
proceedings below, Bosnich testified that the Association’s Bylaws include a
maintenance exception for subflooring. Counsel for Simpson and Harding objected
on the basis of relevance because Bosnich was not the on-site manager for Veracity.
He also objected that Bosnich’s response to a question about the Bylaws was “not
the best evidence.” The trial court overruled the objections and Bosnich testified that
based upon the Bylaws, a unit owner was not responsible for maintaining the
subflooring. This was the only objection to relevance made during Bosnich’s
testimony.
In their appellate brief, Simpson and Harding complain generally that
Bosnich’s testimony was not relevant—and that is all they say about relevance. They
do not challenge the trial court’s ruling on their single relevance-based objection.
They do not refer to any specific testimony by Bosnich that they contend was
irrelevant. And they provide no argument, with citation to the record and legal
authority, to support their general contention that Bosnich’s testimony was
irrelevant. See TEX. R. APP. P. 38.1(i) (requiring clear, concise argument with
citation to authorities and record). We conclude Simpson and Harding waived their
relevancy complaint.
–18–
Simpson and Harding also face difficulties with their appellate argument that
Bosnich’s testimony regarding the various charges assessed to Simpson’s account
was a violation of the best evidence rule. They complain that instead of submitting
and describing original documentation for the fines assessed to Simpson, Bosnich
testified to, and presented as evidence, a letter that listed the fines. However,
Simpson and Harding did not raise this objection to the trial court. To preserve error
for appellate review, the complaining party must (1) make a timely objection to the
trial court that “state[s] the grounds for the ruling that the complaining party [seeks]
from the trial court with sufficient specificity to make the trial court aware of the
complaint, unless the specific grounds were apparent from the context;” and (2)
obtain a ruling. TEX. R. APP. P. 33.1(a); see Thota v. Young,
366 S.W.3d 678
, 689
(Tex. 2012).
According to the record, the only best evidence rule objection made to the trial
court occurred during Bosnich’s testimony that the Bylaws included a maintenance
exception for subflooring. Simpson and Harding did not object to the letter that was
addressed to their counsel and itemized assessments to Simpson’s account. In fact,
their counsel offered the document into evidence during his cross-examination of
Bosnich, and asked that it be admitted into evidence. After the letter was admitted
without objection as plaintiffs’ exhibit 4, Simpson and Harding’s counsel questioned
Bosnich about various items listed on the exhibit. Thus, Simpson and Harding failed
–19–
to make or preserve a best evidence objection to the letter. See TEX. R. APP. P.
33.1(a).
In their appellate brief, Simpson and Harding point to several statements made
by Bosnich during his testimony that they now claim were hearsay. However, these
objections were not made to the trial court and are not preserved for our review. TEX.
R. APP. P. 33.1(a); see McShane, 239 S.W.3d at 235. Further, “[i]nadmissible
hearsay admitted without objection may not be denied probative value merely
because it is hearsay.” TEX. R. EVID. 802.
2. Rodriguez’s Testimony
Dallas County Sheriff’s Deputy James Rodriguez testified that, after
observing Harding’s reaction during Classic’s attempted inspection of the Unit, he
recommended that the Association hire security to insure the safety of the
construction crew making repairs to the upstairs unit. On appeal, Simpson and
Harding complain that none of Deputy Rodriguez’s testimony was relevant with
respect to the issues that were tried.
To preserve error for appellate review, the complaining party must timely and
specifically object to the evidence and obtain a ruling. TEX. R. APP. P. 33.1(a). Error
is waived if the complaining party allows the evidence to be introduced without
objection. McShane, 239 S.W.3d at 235. Here, Simpson and Harding did not object
during Rodriguez’s testimony. Instead, at the conclusion of his cross-examination of
Rodriguez, Simpson and Harding’s counsel asked the court to strike Rodriguez’s
–20–
testimony because it had nothing to do with the case. The trial court did not err in
allowing Rodriguez to testify—Simpson and Harding did not timely object to his
testimony. Id. Further, a review of the entire record does not demonstrate that the
judgment turns on the testimony of Rodriguez. See Nissan Motor, 145 S.W.3d at
144. Accordingly, error in the admission of Rodriguez’s testimony, if any, was
harmless. McShane, 239 S.W.3d at 234–35. We overrule Simpson and Harding’s
fifth issue.
E. Attorney’s Fees Affidavit
Simpson and Harding’s eighth issue pertains to attorney’s fees. In its final
judgment, the trial court denied all declaratory relief sought by Simpson and Harding
and awarded attorney’s fees and costs to the Association pursuant to section 37.009
of the Texas Civil Practice and Remedies Code.5 Simpson and Harding do not
challenge the award of attorney’s fees to the Association, nor do they argue that the
trial court should have awarded attorney’s fees to them. Instead, in their eighth issue,
Simpson and Harding argue that the trial court erred in concluding that their
attorney’s fee affidavit was inadmissible. Thus, as framed, this issue seeks appellate
5
In a declaratory judgment action, “the court may award costs and reasonable and necessary attorney’s
fees as are equitable and just.” CIV. PRAC. & REM. § 37.009; see Collin Cty. v. City of McKinney,
553 S.W.3d 79
, 87 (Tex. App.—Dallas 2018, no pet.). “The grant or denial of attorney’s fees in a declaratory
judgment action lies within the discretion of the trial court, and its judgment will not be reversed on appeal
absent a clear showing of abuse of discretion.” Collin Cty.,
553 S.W.3d at
87 (citing Hartsell v. Town of
Talty,
130 S.W.3d 325
, 329 (Tex. App.—Dallas 2004, pet. denied)).
–21–
review of the court’s decision on the admissibility of evidence and not on the court’s
decision to award attorney’s fees to the Association.
During trial, the Association challenged the affidavit of attorney’s fees
incurred by Simpson and Harding as untimely. Counsel for Simpson and Harding
conceded to the trial court that he had provided the Association with his attorney’s
fee affidavit on August 29, 2018, the day before trial.6 Their counsel acknowledged
that during discovery, the Association requested the production of documentary
evidence of Simpson and Harding’s attorney’s fees. Their counsel admitted that
Simpson and Harding objected to the Association’s discovery requests and refused
to produce evidence of their attorney’s fees. Their counsel then attempted to
persuade the court that the untimeliness of his affidavit was the Association’s fault,
arguing that the Association should have (1) objected to Simpson and Harding’s
discovery objection, (2) filed a motion to compel, or (3) scheduled a hearing on
Simpson and Harding’s objection. This argument failed to persuade the trial court.
In conclusion of law number 8, the trial court concluded that the records relating to
Simpson and Harding’s attorney’s fees were inadmissible because they were not
produced timely.
Rule 193.6 of the Texas Rules of Civil Procedure states:
A party who fails to make, amend, or supplement a discovery response
in a timely manner may not introduce in evidence the material or
6
In their brief, Simpson and Harding state that the record will be supplemented to add this filing. We
do not find the affidavit in the record, and the record has not been supplemented to include it.
–22–
information that was not timely disclosed, or offer the testimony of a
witness (other than a named party) who was not timely identified,
unless the court finds that:
(1) there was good cause for the failure to timely make, amend,
or supplement the discovery response; or
(2) the failure to timely make, amend, or supplement the
discovery response will not unfairly surprise or unfairly
prejudice the other parties.
TEX. R. CIV. P. 193.6(a). Simpson and Harding had the burden of establishing good
cause or the lack of unfair surprise or unfair prejudice. Id. 193.6(b); see In re A.R.M.,
593 S.W.3d at 375. However, they offered no testimony that (1) there was good
cause for their failure to timely produce evidence of their attorney’s fees, or (2) that
their failure to produce such evidence would not prejudice the Association. We
conclude that the trial court did not abuse its discretion in concluding that the records
relating to Simpson and Harding’s attorney’s fees were inadmissible because they
were not produced timely.
Given our conclusion that the trial court did not abuse its discretion in
concluding that Simpson and Harding’s attorney’s fee affidavit was inadmissible,
we need not consider whether the affidavit was sufficient. We overrule Simpson and
Harding’s eighth issue.
Conclusion
Having resolved all of Simpson and Harding’s issues against them, we
confirm the judgment of the trial court.
–23–
/Bill Pedersen, III//
190123f.p05 BILL PEDERSEN, III
JUSTICE
–24–
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
DIANA SIMPSON AND JOHN On Appeal from the 95th District
HARDING, Appellants Court, Dallas County, Texas
Trial Court Cause No. DC-16-10283.
No. 05-19-00123-CV V. Opinion delivered by Justice
Pedersen, III. Justices Myers and
OAKS ON MONFORT Garcia participating.
CONDOMINIUM ASSOCIATION,
VERACITY INC., AND LORI
WELSH, Appellees
In accordance with this Court’s opinion of this date, the judgment of the trial
court is AFFIRMED.
It is ORDERED that appellees OAKS ON MONFORT CONDOMINIUM
ASSOCIATION, VERACITY INC., AND LORI WELSH recover their costs of
this appeal from appellants DIANA SIMPSON AND JOHN HARDING.
Judgment entered this 19th day of January, 2021.
–25– |
4,629,618 | 2020-11-21 03:05:45.639401+00 | null | null | APPEAL OF JULIUS G. DAY, EXECUTOR, ESTATE OF HARRY GOODYEAR DAY.
APPEAL OF LOUIS E. STODDARD, EXECUTOR, ESTATE OF EZEKIEL G. STODDARD.
Day v. Commissioner
Docket Nos. 2048, 2725.
United States Board of Tax Appeals
3 B.T.A. 942; 1926 BTA LEXIS 2532;
February 19, 1926, Decided Submitted November 1, 1925.
*2532 The value of certain shares of stock as of the date of the decedents' deaths determined.
Edward B. Burling, H. C. Kilpatrick, Hampson Gary, and E. L. Bono, Esqs., for the taxpayers.
L. C. Mitchell, Esq., for the Commissioner.
MORRIS
*942 Before MARQUETTE, MORRIS, GREEN and LOVE.
These are appeals from determinations of deficiencies in estate taxes against the estate of Harry Goodyear Day, of $4,675.53, and against the estate of Ezekiel G. Stoddard, of $10,680.84. The question involved is the value of certain shares of stock in the Red River Valley Co., owned by each of the decedents at the time of his death.
FINDINGS OF FACT.
1. Harry Goodyear Day died testate October 16, 1922, and, at the time of his death, was a resident of New Haven, Conn. Julius G. Day was the duly appointed, qualified, and acting executor of the said estate.
Ezekiel G. Stoddard died testate September 18, 1923, and, at the time of his death, was a resident of New Haven, Conn. Louis E. Stoddard was the duly appointed, qualified, and acting executor of his estate.
2. Each of the above decedents, at the time of his death, owned stock in the Red River*2533 Valley Co. as follows:
Shares.
Harry Goodyear Day800
Ezekiel G. Stoddard2,035
The executor of each estate filed an estate-tax return wherein the stock of the Red River Valley Co. was valued at $125 per share. The Commissioner valued the said stock at $175 per share. There was no change in the affairs of the said company, or in the general market conditions between the two dates of death, and the fair market value of the stock was substantially the same on both dates.
3. The said Red River Valley Co. was incorporated in 1898 and, at the dates involved in these appeals, had a capital stock of $1,000,000, divided into 10,000 shares, of the par value of $100 each. It *943 was engaged in the business of owning and operating a large cattle ranch in San Miguel County, N. Mex. Its ranch consisted of a large body of land, 474,419.6 acres in extent, upon which it maintained a range herd of between 18,000 and 20,000 cattle. In addition to the range herd, it owned approximately 900 registered thoroughbred cattle, kept for the purpose of improving the quality of the main herd. It also owned about 800 horses and mules. The entire property was well fenced*2534 and the cattle were ranged for the entire year. No appreciable portion of the land was cultivated. It was the practice of the company each year to sell the yearling steers and certain cows which could not survive the winter. The yield of calves in normal years would be about 7,000. In normal years the operating expenses were about $125,000.
As a precaution against lean years or disasters, the company built up and maintained a reserve of approximately $650,000, consisting of marketable negotiable bonds and preferred stock. The years 1922 and 1923 were unusually disastrous for cattle ranches, as there was a marked depression in the cattle market during these years.
4. There were very few transfers of stock of the said company, as the stock was mostly held by the original organizers or as a trust investment for their estates. The only sales of a substantial portion of the stock were in the year 1913, when one block of 625 shares was sold for $125 per share and another block of 1,000 shares was sold for the same price. These were purchased by the officers or stockholders of the corporation from other stockholders who desired to sell their interests. In the year 1921, 2 shares*2535 were sold for $100, and, in the year 1923, 26 shares were sold for $100. On August 4, 1924, a stockholder offered to sell 106 shares of stock, held as a trust, for $135 per share, the offer being good for two months. The offer was made to the president of the company, who did not accept it. In 1915, 250 shares of said stock were appraised by the probate court at $100 per share in the probating of the estate of the wife of Louis E. Stoddard. The State courts, in the probating of the estates in this appeal, appraised the value of the stock at $125 per share. No stock at any time had been sold for more than $125 per share. No effort was made to buy or sell any substantial amount of said stock since 1913.
5. The net earnings of the Red. River Valley Co. for the fiscal years ended March 31, 1914, to March 31, 1922, and the dividends paid for the fiscal years ended March 31, 1914, to March 31, 1925, inclusive, were as follows:
Net earnings.Dividends.
1914$122,722.99$50,000
1915179,209.0580,000
1916165,637.7880,000
1917118,709.1480,000
1918165,476.9790,000
191958,594.96300,000
1920119,368.62170,000
1921$156,687.85$220,000
192244,057.5660,000
1923240,000
192440,000
192520,000
1925 (Apr. 13)20,000
*2536 *944 6. The balance sheets of the Red River Valley Co. as they appear upon the books of the corporation as of March 31, 1922, 1923, and 1924, are as follows:
1922 119231924
ASSETS.
Real estate$1,423,258.80$1,421,971.80$1,421,971.80
Investments721,792.89687,400.80731,974.05
Cattle828,736.00710,765.30543,737.00
Horses and mules22,850.0023,900.0018,585.00
Forage4,152.543,143.052,405.00
Provisions384.49
322.09
Supplies167.40239.41
Bell Ranch store1,160.781,170.92
Improvements31,364.4630,599.7930,747.99
Ranch property and equipment1,842.471,825.671,698.56
Bills receivable (notes)25,657.79103,532.0056,312.50
Cash at New Haven office20,119.1223,831.52
Cash at ranch64.384,610.821,105.88
Total3,059,719.333,009,581.022,834,101.72
LIABILITIES.
Capital stock1,000,000.001,000,000.001,000,000.00
Surplus1,860,404.901,860,404.901,702,058.60
Accounts payable2,467.4430,000.00
Due employees3,067.903,750.75
Due C.M O'Donel465.261,000.00
Profit and loss196,846.99145,642.9697,292.37
Total3,059,719.333,009,581.022,834,101.72
*2537
7. The said investments mentioned in the balance sheets of said corporation had a fair market value on October 16, 1922, and on September 18, 1923, of approximately $650,530.92, computed in accordance with quotations as of that date in standard financial publications.
The land consisted of 474,419.6 acres, valued on the books of the taxpayer at $3 per acre. This land was assessed for state taxation purposes during the years 1922 and 1923, at $1.75 per acre. In 1918, under favorable market conditions, 260,000 acres of the land were sold at $3 per acre.
The Red River Valley Co., in its capital stock tax return, reported a fair value of its assets and liabilities as of March 31, 1922, and 1924, as follows:
19221924
DEBITS AND ASSETS.
Real estate$948,839.20$829,483.55
Buildings31,364.4630,747.99
Machinery1,842.471,698.56
Securities721,792.89731,974.05
Cash64.381,105.88
Notes receivable56,312.50
Accounts receivable25,657.7923,831.52
Inventory supplies, etc4,152.544,137.42
Cattle580.062.00543,757.00
Horses22,850.0018,585.00
Total2,336,625.732,241,613.47
CREDITS AND LIABILITIES.
Accounts payable2,467.444,750.75
Notes payable30,000.00
Capital stock, common1,000,000.001,000,000.00
Surplus1,137,311.301,109,570.35
Profit and loss196,846.9997,292.37
Total2,336,625.732,241,613.47
Fair value of capital stock2,334,158.292,206,862.72
*2538 *945 DECISION.
The determination of the Commissioner is approved.
OPINION.
MORRIS: The determination of the value of the stock of the Red River Valley Co., as of the time of the death of the decedents, is determinative of the sole issue in this appeal. The taxpayers reported a value of $125 per share but at the hearing contended the proof evidenced a value of $100 per share. The Commissioner fixed a value of $175 per share. The taxpayers rely in part upon the fact that there were no actual sales of stock in excess of $125 per share. The evidence shows, however, that there were but few transfers and practically none about the time of the death of the decedents. The only appreciable sales were in the year 1913, during which blocks of 625 shares and 1,000 shares were purchased by one set of stockholders from another for $125 per share. Since that time the stock has been held by the original stockholders, their heirs, or estates, and no sales were reported, except two shares in 1921 and 26 shares in 1923, at $100. On June 4, 1924, a certain block of 106 shares, belonging to trusts, was offered for sale at $135, for a limited time, to an officer of the company, *2539 but the offer was not accepted. Officers of the company and several stockbrokers and bankers testified that, in their opinion, it would have been difficult, under the circumstances, to sell the stock above par. The evidence, however, does not disclose that any serious effort was ever made to sell or buy any substantial amount of the stock, but, on the contrary, the stock was closely held and the stockholders evidently were satisfied with their investment.
*946 Isolated transfers of stock are not conclusive of the fair market value of other stock of the same issue. We have held that when there is no evidence of market and but a few isolated sales, we must fall back upon an examination of the value of the assets behind the stock and analyze the earnings, balance sheets, and general conditions of the corporation itself, ; ; and this is the situation in this appeal.
Even a most casual examination of the balance sheets and schedule of dividends and net earnings discloses that the corporation was in a most excellent condition. It was capitalized at $1,000,000, *2540 but, in spite of annual dividends over a consecutive period of over 10 years, averaging nearly 14 per cent, it had a book surplus on March 31, 1923, of $1,860,404.90, and on March 31, 1924, of $1,702,058.60. There was practically no indebtedness and its assets consisted of tangibles of a most substantial character. It had in its reserve securities admittedly of a market value of $650,530.92. It owned 474,419.6 acres of land valued on its books at $1,423,258 (at $3 per acre), and even the assessed valuation of the land, fixed by the State Tax Commission of New Mexico at $1.75 per acre, gave it a value of approximately $830,000. The cattle were worth well over $550,000. In addition to this, the company had substantial assets in the form of cash, notes and accounts receivable, and improvements. We are also impressed with the fact that the company was a successful going concern, conservatively and efficiently managed, with every prospect of continued success. A valuation of the assets under the evidence adduced would be well over $2,000,000, a large portion of which were liquid assets. We are not overlooking the fact of the depressed market conditions in the cattle industry during*2541 the years 1922 and 1923. We note, however, that the company weathered the storm without dipping appreciably into its surplus, due to its foresightedness and excellent management, which we belive is illustrative of the stability of the corporation.
Without going into a detailed analysis of the various factors entering into the valuation of the stock, a summary of the evidence of value is substantially as follows:
Sale price of 1,625 shares in 1913 $125
Sale price of 2 shares, 1921100
Sale price of 25 shares, 1923100
Book value Mar. 31, 1922305
Book value Mar. 31, 1923300
Book value Mar. 31, 1924280
Fair value reported in capital stock tax return for 1922233
Fair value reported in capital stock tax return for 1924220
Appraised value Connecticut probate court, 1923 $125
Offer of 106 shares but not accepted in 1924135
Valuation fixed by Commissioner175
*947 The sale price of stock in 1913 should have no bearing on its value in 1922 and 1923, as, since that time, although the balance sheets of 1913 are not in evidence, it is admitted that a substantial portion of the surplus in the form of securities had been built up, and, also, *2542 the company has since that time a history of consecutive annual dividends and earnings averaging nearly 14 per cent. And neither are the isolated sales of the few shares in 1921 and 1923 indicative of the value, as we have pointed out.
We are convinced, from the evidence, irrespective of the method employed by the Commissioner in arriving at the value of the stock, that the value of $175 per share was very conservative and that the evidence is insufficient to disturb this valuation.
Footnotes |
4,669,323 | 2021-03-18 23:02:03.212579+00 | null | http://www.courts.ca.gov/opinions/documents/E071542.PDF | Filed 3/18/21
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E071542
v. (Super.Ct.No. RIF1703505)
MICHAEL JAMES MIRANDA, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Charles J. Koosed, Judge.
Affirmed in part, reversed in part with directions.
Valerie G. Wass, under appointment by the Court of Appeal, for Defendant and
Appellant Michael James Miranda.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Seth M.
Friedman, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Michael James Miranda was convicted on 13 counts
charging sex crimes against two minor girls, including oral copulation of an unconscious
person, rape of an unconscious person, and sexual penetration of an unconscious person.
He was sentenced under the One Strike law. On appeal, he contends in part that the jury
1
should have been instructed on lesser included offenses, and that his ineligibility for
youth offender parole hearings violates equal protection.
We agree with Miranda that battery is a lesser included offense of oral copulation
of an unconscious person, rape of an unconscious person, and sexual penetration of an
unconscious person. Given that battery requires only an offensive touching, it is
impossible to commit any of these crimes without also committing battery against that
person. We reject a Court of Appeal case that held otherwise.
Because of the evidence presented, we conclude that the trial court was required to
instruct the jury on battery as a lesser included offense as to one of Miranda’s crimes,
oral copulation of an unconscious person. We reverse that conviction and vacate his
sentence, as there was a reasonable probability that, absent the error, the jury would have
convicted him of only battery if instructed as to that option. As to Miranda’s other two
crimes, the notion that he committed battery but not the greater crimes lacked a
grounding in the evidence, so the trial court had no duty to instruct on battery as a lesser
included offense. In addition, we reject Miranda’s other challenges to his convictions,
1
including his equal protection challenge.
I. FACTUAL AND PROCEDURAL HISTORY
We must in this appeal determine whether the trial court had a duty to instruct on a
lesser included offense, which requires us to consider the evidence in the light most
favorable to the defendant. (People v. Millbrook (2014)
222 Cal.App.4th 1122
, 1137.)
1
Undesignated statutory references are to the Penal Code.
2
We recount the facts below with this standard in mind. Additionally, we focus only on
the circumstances surrounding the testimony of S.C., who was the victim of the crimes at
issue in this appeal, though Miranda also was convicted of sex crimes against a second
victim, A.C. Moreover, we generally focus only on those crimes committed against S.C.
that are challenged in this appeal.
Born in 1998, Miranda moved into a family friend’s household in his senior year
of high school. Miranda’s mother was going through a “hard time,” and she asked her
friend if Miranda could stay with them. The friend agreed; took Miranda in to live with
her, her husband, and their five children; and “loved him like a son.” A.C., the second
victim not at issue here, was one of the friend’s children.
S.C. is a cousin of the household’s children and often spent weekends at their
house. S.C. was 16 years old when the crimes took place.
At trial, S.C. described a 2017 incident where Miranda touched her vagina while
she was “falling asleep”:
“Q. What happens?
“A. I was falling asleep, and then I just felt somebody—well, I felt him touch me.
“Q. Okay.
“A. On like my thigh and then go up more.
“Q. And how much more did he go up?
“A. To my private area.
3
“Q. Now, I know you called it a private area. Do you know the adult names for
the private area?
“A. My vagina.
“Q. Did he actually touch your vagina?
“A. Yes.
“Q. Did he touch you over the clothes or under the clothes?
“A. Both.
“Q. Okay. What were you doing as this is happening to you?
“A. Nothing.
“Q. Okay.
“A. I didn’t move. I was too scared to do anything.
“Q. Did you realize what was happening to you right when you opened your eyes,
or did it take you a little?
“A. Took me a while to realize.”
Miranda then forced S.C.’s mouth open with his hands and put his penis inside.
S.C. stated that she was “awake kind of when [Miranda] was touching me, but I wasn’t
fully alert, like, what was actually happening to me.” She was “fully awake,” however,
by the time Miranda placed his penis inside her mouth. The first portion of this incident,
as well as S.C.’s testimony that Miranda had touched her vagina on a few other
occasions, formed the basis for Miranda’s charge of sexual penetration of an unconscious
person.
4
On September 8, 2017, S.C. was sleeping when she “woke up” because Miranda
2
was licking her “butt.” S.C. stated that she first felt Miranda pull down her pants and
underwear while she was “half asleep” and that she “didn’t know what was going on until
[she] actually felt something lick” her. She stated: “[I felt a] tug like somebody tugging
at my bottoms, but I didn’t really take much notice because I was too tired, but then when
he actually licked me, that’s what actually woke me up completely.” S.C. stated that
Miranda had licked her “butt area—on top of it” and that it was “not [her] anus, but [her]
butt.”
In a forensic interview that was played at trial and admitted into evidence, S.C.
had stated that Miranda did more to her on that occasion. In that interview, she had
3
stated that Miranda proceeded to lick her vagina. When asked what part of the vagina
Miranda licked, S.C. had said, “I’m not sure, because I was, like, half asleep when I felt
something down there.” But at trial, when asked, “Do you remember if [Miranda] only
licked your butt, or did he lick somewhere else as well,” she replied, “He just licked my
butt.” Later she was asked again, “Was it just the butt, or did it go on,” and she replied,
“Just my butt.” Eventually Miranda stopped, pulled S.C.’s underwear back up, left, and
2
The date was variously cited at trial as September 8 and September 9.
3
As we understand it, S.C. used the word “vagina” colloquially to refer to the
vulva, the external female sexual organs. (See People v. Thomas (2017)
15 Cal.App.5th 1063
, 1067, fn. 3.)
5
S.C. “fell back asleep.” This incident formed the basis for the oral copulation of an
4
unconscious person charge.
Shortly thereafter on that same night, S.C. woke up again and realized Miranda
was on top of her and inserting his penis into her vagina. As she said during her forensic
interview:
“[S.C.]: And then, um, like I said, I fell back asleep and then when I woke up
again, he was, like, feeling inside of me.
“[Interviewer]: What was he go—what was going inside you?
“[S.C.]: His pe— his penis. I’m sorry [. . . .]
“[Interviewer]: Okay. That’s okay. So his penis was going where inside you?
“[S.C.]: Um, in my vagina.
“[Interviewer]: In your vagina?
“[S.C.]: Yeah.”
In describing this incident at trial, S.C. was asked, “Now, that’s when you woke
up, when you felt his weight and his penis into your vagina; is that correct,” to which she
replied, “Yes.” Eventually, Miranda stopped and left the room. This incident formed the
5
basis for Miranda’s charge of rape of an unconscious person.
4
At trial, a criminalist testified that she found traces of what was very likely
Miranda’s saliva on the underwear S.C. wore on September 8.
5
S.C. testified that, in a third incident on the same night, Miranda forced her
mouth open and inserted his penis into her mouth. This incident formed the basis for
Miranda’s charge of forcible oral copulation of a minor 14 years old or older.
6
A few nights later, A.C.’s older sister woke up to Miranda attempting to open her
legs. Miranda said he was looking for a laptop charger. Miranda left, but A.C.’s sister
could not go back to sleep. She woke up S.C. and told her she believed Miranda had
“tried to do something.” S.C. started crying and said that Miranda had done things to her.
A.C.’s sister woke up her parents, who confronted Miranda. Miranda denied
wrongdoing. The parents then woke up A.C., who said that Miranda had been touching
her as well.
Miranda was charged with one count of oral copulation of an unconscious person
(former § 288a, subd. (f); count 1); one count of rape of an unconscious person (§ 261,
subd. (a)(4); count 2); one count of sexual penetration of an unconscious person (§ 289,
subd. (d); count 3); one count of forcible oral copulation of a minor 14 years old or older
(former § 288a, subd. (c)(2)(C); count 4); and nine counts of lewd and lascivious acts on
a child under 14 (§ 288, subd. (a); counts 5 through 13). Counts 1 through 4 related to
S.C., while counts 5 through 13 related to A.C.; only counts 1 through 3 are at issue in
this appeal. Miranda was also alleged to have committed a qualifying sex offense against
more than one victim pursuant to section 667.61, subdivision (e)(4), part of the One
Strike law.
The jury found Miranda guilty on all counts and found the One Strike allegation
true. The trial court sentenced Miranda to a determinate term of 38 years plus a
consecutive indeterminate term of 15 years to life. The trial court also ordered Miranda
to pay a $300 restitution fine (§ 1202.4, subd. (b)), a $390 criminal conviction assessment
7
fee (Gov. Code, § 70373), and a $520 court operations assessment fee (§ 1465.8), in
addition to a $300 parole revocation restitution fine (§ 1202.45) that the trial court
ordered stayed.
II. ANALYSIS
A. Lesser Included Offense
Miranda contends that the jury should have been instructed on battery as a lesser
included offense of counts 1 through 3, i.e., oral copulation of an unconscious person,
rape of an unconscious person, and sexual penetration of an unconscious person. He
additionally contends that the error was prejudicial because there was a reasonable
probability he would have been convicted of only battery absent the error.
The People disagree. Relying on People v. Hernandez (2011)
200 Cal.App.4th 1000
(Hernandez), the People contend that battery is not a lesser included offense of
these offenses. Hernandez held that “battery is not a lesser included offense of rape of an
unconscious person” because battery requires use of force or violence, while “[t]here is
no requirement that [a] defendant use force or violence to accomplish the act of sexual
intercourse.” (Id. at p. 1006.) The People additionally contend that any supposed error is
harmless.
For reasons we explain, we agree with Miranda that battery is a lesser included
offense of oral copulation of an unconscious person, rape of an unconscious person, and
sexual penetration of an unconscious person. We therefore disagree with Hernandez.
8
This by itself does not mean the trial court committed error. “A trial court must
instruct on a lesser included offense ‘only if there is substantial evidence to support a
jury’s determination that the defendant was in fact only guilty of the lesser offense.’”
(People v. Williams (1997)
16 Cal.4th 153
, 227.) As to only count 1, oral copulation of
an unconscious person, we agree with Miranda that there was substantial evidence to
support a finding that he committed only battery. We find no substantial evidence to
support a battery instruction as to the other two charges at issue here. The trial court
therefore erred in not instructing the jury on battery only for count 1.
Finally, we find that the error on count 1 was prejudicial because Miranda had a
reasonable probability of obtaining a battery verdict instead of his conviction on that
count.
1. Applicable Law
“‘California law has long provided that even absent a request, and over any party’s
objection, a trial court must instruct a criminal jury on any lesser offense “necessarily
included” in the charged offense, if there is substantial evidence that only the lesser crime
was committed.’” (People v. Smith (2013)
57 Cal.4th 232
, 239 (Smith).)
“‘This venerable instructional rule ensures that the jury may consider all
supportable crimes necessarily included within the charge itself, thus encouraging the
most accurate verdict permitted by the pleadings and the evidence.’ [Citation.] ‘[T]he
rule prevents either party, whether by design or inadvertence, from forcing an all-or-
nothing choice between conviction of the stated offense on the one hand, or complete
9
acquittal on the other. Hence, the rule encourages a verdict, within the charge chosen by
the prosecution, that is neither “harsher [n]or more lenient than the evidence merits.”
[Citations.]’ [Citation.] Thus, ‘a trial court errs if it fails to instruct, sua sponte, on all
theories of a lesser included offense which find substantial support in the evidence. On
the other hand, the court is not obliged to instruct on theories that have no such
evidentiary support.’ [Citation.]” (Smith, supra, 57 Cal.4th at pp. 239-240.)
“For purposes of determining a trial court’s instructional duties, . . . ‘a lesser
offense is necessarily included in a greater offense if either the statutory elements of the
greater offense, or the facts actually alleged in the accusatory pleading, include all the
elements of the lesser offense, such that the greater cannot be committed without also
committing the lesser.’” (Smith, supra, 57 Cal.4th at p. 240.) We rely on the statutory
elements test here.
2. Statutory Elements
“A battery is any willful and unlawful use of force or violence upon the person of
another.” (§ 242.) It thus has two stated elements: (1) a use of “force or violence” that is
(2) “willful and unlawful.” (See, e.g., People v. Shockley (2013)
58 Cal.4th 400
, 408
(Shockley) (conc. & dis. opn. of Kennard, J.).) As to the first element, “‘[i]t has long
been established that “the least touching” may constitute battery. In other words, force
against the person is enough, it need not be violent or severe, it need not cause bodily
harm or even pain, and it need not leave a mark.” (Id. at pp. 404-405.) As to the second
10
element, a touching is unlawful if it is “‘harmful or offensive.’” (Shockley, supra, at p.
404.)
The sexual crimes at issue here each involve an act of touching when the victim
was unconscious. Former section 288a, subdivision (f) criminalizes oral copulation when
a “victim is at the time unconscious of the nature of the act” and the perpetrator is aware
6
of the unconsciousness. Section 261, subdivision (a)(4) defines rape to mean sexual
intercourse under the same circumstances, and section 289, subdivision (d) criminalizes
sexual penetration under these circumstances as well.
Each of the above provisions defines the phrase “unconscious of the nature of the
act” to mean that the victim is “incapable of resisting” because the victim meets one of
four conditions, including that the victim “[w]as unconscious or asleep” or “[w]as not
aware, knowing, perceiving, or cognizant that the act occurred.” (Former § 288a, subd.
(f)(1)-(2), §§ 261, subd. (a)(4)(A)-(B), 289, subd. (d)(1)-(2).)
Any of these sexual crimes also is a battery. Physically, a perpetrator cannot
orally copulate, rape, or sexually penetrate an unconscious person by using something
less severe than “‘“the least touching”’” (Shockley, supra, 58 Cal.4th at p. 404).
Additionally, oral copulation, rape, and sexual penetration of an unconscious person are
all offensive touchings. (Shockley, supra, 58 Cal.4th at p. 404; see also People v.
Pinholster (1992)
1 Cal.4th 865
, 961 [“throwing a cup of urine in a person’s face is a
6
Former section 288a was renumbered as section 287 beginning January 1, 2019.
(Stats. 2018, ch. 423, § 49.)
11
battery, since ‘[a]ny harmful or offensive touching constitutes an unlawful use of force or
violence’ and thus a battery”], disapproved on other grounds in People v. Williams (2010)
49 Cal.4th 405
, 459.)7 Accordingly, battery is a lesser included offense of these crimes
because the greater cannot be committed without also committing the lesser.
Hernandez held otherwise. In comparing battery to rape of an unconscious
person, it stated:
“There is no requirement that the defendant use force or violence to accomplish
the act of sexual intercourse. [Citation.] The act of sexual intercourse with an
unconscious person is itself illegal, regardless of ‘the victim’s “advance consent” or the
perpetrator’s belief that the victim has consented in advance to the prohibited act.’
[Citation.] Thus, an unconscious person could be raped within the meaning of section
261, subdivision (a)(4) without having been subjected to force or violence, or even to a
harmful or offensive touching. As a result, battery is not a lesser included offense of rape
of an unconscious person.” (Hernandez, supra, 200 Cal.App.4th at p. 1006.)
At bottom, Hernandez held that one “could be raped . . . without having been
subjected . . . to a harmful or offensive touching.” (Hernandez, supra,
200 Cal.App.4th 7
Additionally, by virtue of being “incapable of resisting,” consent to the touching
must necessarily be absent. (People v. Morales (2013)
212 Cal.App.4th 583
, 591
[“Under section 261.6, consent requires that the consenting party ‘act freely and
voluntarily and have knowledge of the nature of the act or transaction involved.’ One
who is unconscious as defined in section 261, subdivision (a)(4), necessarily does not act
freely and voluntarily with knowledge of the nature of the act.”]; People v. Dancy (2002)
102 Cal.App.4th 21
, 36 (Dancy) [“a man who intentionally engages in sexual intercourse
with a woman he knows to be unconscious is clearly aware that he is wrongfully
depriving the woman of her right to withhold her consent to the act at the time of
penetration”].)
12
at p. 1006.) Analyzed closely, Hernandez alludes to two possible reasons why a rape of
an unconscious person might not be a battery. First, it claims that the rape of an
unconscious person might involve no force or violence, an element of a battery. Second,
it raises an “advance consent” scenario wherein a person, unconscious during the rape,
has consented to it earlier. Neither of these provides a situation where the rape of an
unconscious person is not also a battery.
Hernandez is literally correct in stating that “[t]here is no requirement that [a]
defendant use force or violence to accomplish the act of sexual intercourse.”
(Hernandez, supra, 200 Cal.App.4th at p. 1006.) That is true when the term “force” is
defined as requiring something greater than, or different from, what is needed to
accomplish the sexual act itself. (E.g., People v. McCann (2019)
41 Cal.App.5th 149
,
157.) But in the context of battery, in contrast, the term “force” means only the “slightest
degree of touching.” (In re B.L. (2015)
239 Cal.App.4th 1491
, 1495.) “‘It has long been
established that “the least touching” may constitute battery. In other words, force against
the person is enough; it need not be violent or severe, it need not cause bodily harm or
even pain, and it need not leave a mark.’” (Shockley, supra, 58 Cal.4th at p. 404.) With
that definition of force, it is not possible to rape a person, whether the victim is conscious
or unconscious, without at least the force (the slight degree of touching) required for a
battery.
Hernandez’s “advance consent” scenario implicates a situation, likely quite rare,
where a person consents in advance to being sexually violated while unconscious. This
13
situation still would be a battery. Whether the consent of the victim can render a
touching not “harmful or offensive” for purposes of battery depends on the nature of the
touching and is defined by law. “[C]onsent of the victim is not generally a defense to
assault or battery, except in a situation involving ordinary physical contact or blows
incident to sports such as football, boxing or wrestling. [Citation.] It is also the rule that
the apparent consent of a person without legal capacity to give consent, such a child or
insane person, is ineffective.” (People v. Samuels (1967)
250 Cal.App.2d 501
, 513.)
Advance consent can render medical treatment not a battery, but this is only as
defined by law. (See Cobbs v. Grant (1972)
8 Cal.3d 229
, 239-240.) Battery occurs
when a patient has given informed consent to a medical procedure that occurs while the
patient is under anesthetic. In contrast, however, under California law, advance consent
to rape does not constitute valid legal consent, because such an advance decision
eliminates the victim’s ability to withdraw from the sexual activity while it occurs.
(Dancy, supra, 102 Cal.App.4th at pp. 36-37; see People v. Smith (2010)
191 Cal.App.4th 199
, 208 [holding sexual battery is committed when victim “is unable to
resist because of unconsciousness or intoxication”].)
Because the law does not recognize an unconscious person’s advance consent to a
rape, making the sexual act a crime, it is a battery to intentionally commit that act even if
there was advance consent. Battery is a general intent crime (People v. Lara (1996)
44 Cal.App.4th 102
, 107), which means it requires the intent to do the act involved, not an
intent to cause a resulting harm (e.g., People v. Fontenot (2019)
8 Cal.5th 57
, 66). As a
14
general intent crime, a battery does not occur when a person commits the act “based on a
reasonable and honest belief that certain facts and circumstances exist which, if true,
would render the act lawful.” (People v Reed (1996)
53 Cal.App.4th 389
, 396; People v.
Rivera (1984)
157 Cal.App.3d 736
, 742-743.) Where sex with an unconscious person is
a rape and thus unlawful regardless of consent, it is not reasonable to believe that it is
lawful, so the touching is a battery, just as it is a rape. As well, a minor cannot consent to
a sex act in California, so it is not reasonable to believe that consent renders the sex act
lawful; the act remains both a rape and a battery even if the minor consented.
The law in the medical context likewise defines the circumstances when a
patient’s advance consent to a procedure while unconscious means that a doctor has a
reasonable belief that the procedure is lawful and thus does not commit a battery by
performing it. A doctor commits a battery when deviating from the consent given to
perform a substantially different procedure than the one for which consent was given
(e.g., Burchell v. Faculty Physicians & Surgeons of Loma Linda University School of
Medicine (2020)
54 Cal.App.5th 515
, 524), but does not commit a battery if acting
beyond consent due to an emergency, where consent is implied by law (Cobbs v. Grant,
supra, 8 Cal.3d at pp. 243-244). Likewise, the law does not recognize a minor’s consent
to a medical procedure; for a minor, “the authority to consent is transferred to the
patient’s legal guardian or closest available relative.” (Id. at p. 244.)
For these reasons, we conclude that conduct legally defined as rape is inherently
harmful and offensive touching for purposes of battery. Any sexual act upon an
15
unconscious victim is also a battery. We thus hold that battery is a lesser included
offense of the crimes involving sexually touching an unconscious victim. The practical
consequence of this is that a battery jury instruction should be given in a case where a
defendant is charged with committing a sex act upon an unconscious victim when
substantial evidence supports a finding that the defendant touched the victim in a way
other than charged (e.g., in a different body area than that required for the sex crime, or
when the victim is conscious).
3. Substantial Evidence
“A trial court must instruct on a lesser included offense ‘only if there is substantial
evidence to support a jury’s determination that the defendant was in fact only guilty of
the lesser offense.’” (People v. Williams, supra, 16 Cal.4th at p. 227; see also People v.
Breverman (1998)
19 Cal.4th 142
, 177 (Breverman).) “This standard requires
instructions on a lesser included offense whenever ‘“a jury composed of reasonable
[persons] could . . . conclude[]”’ that the lesser, but not the greater, offense was
committed. [Citation.] In deciding whether evidence is ‘substantial’ in this context, a
court determines only its bare legal sufficiency, not its weight.” (Breverman, supra, at p.
177.) In doing so, we consider the evidence in the light most favorable to the defendant.
(People v. Millbrook, supra, 222 Cal.App.4th at p. 1137.) Here, we find that such
substantial evidence exists with regard to count 1, oral copulation of an unconscious
person.
16
As noted above, oral copulation of an unconscious person requires that the victim
be “unconscious of the nature of the act.” This means that the victim must be “incapable
of resisting” because he or she “[w]as unconscious or asleep” or “[w]as not aware,
knowing, perceiving, or cognizant that the act occurred,” among others. (Former § 288a,
subd. (f)(1)-(2).) As cases interpreting this language have stated, “[i]t is settled that a
victim need not be totally and physically unconscious.” (People v. Ogunmola (1987)
193 Cal.App.3d 274
, 279; see also People v. Pham (2009)
180 Cal.App.4th 919
, 928 [“The
unconsciousness requirement does not require proof the victim was totally and physically
unconscious during the acts in question.”]; People v. Howard (1981)
117 Cal.App.3d 53
,
55.) “In this context, unconsciousness is related to the issue of consent . . . .” (People v.
Ogunmola, supra, at p. 279.)
S.C.’s testimony regarding her state of consciousness could have led a reasonable
jury to conclude that she was neither asleep, unconscious, nor unaware of what was
happening when Miranda orally copulated her. S.C. stated that, on September 8, Miranda
first pulled down her pants and underwear while she was “half asleep.” Once Miranda
“actually licked” her, however, she was woken up “completely.” As she also stated, she
“didn’t know what was going on until [she] actually felt something lick” her. S.C. did
not tell the forensic interviewer, however, that Miranda had only licked her vagina.
Rather, she stated that Miranda had first licked the “top” of her “butt area” before then
licking her vagina, and the record does not reveal how many moments may have passed
in between. Thus, whether or not she was unconscious or unaware pursuant to former
17
section 288a, subdivision (f)(1) and (f)(2) when Miranda first started licking S.C., the
jury could have found that she was fully awake and aware of what Miranda was doing
once he orally copulated her by licking her vagina. Accordingly, portions of S.C.’s
testimony, when viewed in the light most favorable to Miranda, would support a jury
finding that S.C. was not “unconscious of the nature of the act” of oral copulation.
As to the counts charging rape or sexual penetration of an unconscious person, the
lesser included instruction was not required. There was no ambiguity in the evidence
regarding the incidents giving rise to those charges that would allow a reasonable jury to
find that Miranda committed only battery. This is true even when we consider the
evidence in the light most favorable to Miranda, as we have done in recounting the
factual history.
Accordingly, we conclude the trial court had a sua sponte duty to instruct the jury
on battery as a lesser included offense of oral copulation of an unconscious person, but
8
not of the other charges. It did not give such an instruction. We therefore consider
whether the trial court’s failure to do so was prejudicial.
4. Prejudicial Error
“In a noncapital case, error in failing sua sponte to instruct, or to instruct fully, on
all lesser included offenses and theories thereof which are supported by the evidence
must be reviewed for prejudice exclusively under [People v.] Watson [(1956)
46 Cal.2d 8
The jury was instructed on attempted oral copulation of an unconscious person
for count 1, but was not instructed as to battery.
18
818].” (Breverman,
supra,
19 Cal.4th at p. 178.) This means that a “conviction of the
charged offense may be reversed . . . only if, ‘after an examination of the entire cause,
including the evidence’ [citation], it appears ‘reasonably probable’ the defendant would
have obtained a more favorable outcome had the error not occurred [citation].” (Ibid.)
Our Supreme Court has “‘“‘“made clear that a ‘probability’ in this context does not mean
more likely than not, but merely a reasonable chance, more than an abstract
9
possibility.”’”’” (People v. Sandoval (2015)
62 Cal.4th 394
, 422.)
Although a court views the evidence in the light most favorable to a defendant to
search for substantial evidence in deciding whether a court has a sua sponte duty to
instruct, “[a]ppellate review under Watson . . . takes an entirely different view of the
evidence.” (Breverman,
supra,
19 Cal.4th at p. 177.) “Such posttrial review focuses not
on what a reasonable jury could do, but what such a jury is likely to have done in the
absence of the error under consideration. In making that evaluation, an appellate court
may consider, among other things, whether the evidence supporting the existing
judgment is so relatively strong, and the evidence supporting a different outcome is so
comparatively weak, that there is no reasonable probability the error of which the
defendant complains affected the result. Accordingly, a determination that a duty arose
9
We do not address Miranda’s contention that our Supreme Court erred in
Breverman by applying the Watson standard to errors regarding lesser included offenses.
“Courts exercising inferior jurisdiction must accept the law declared by courts of superior
jurisdiction. It is not their function to attempt to overrule decisions of a higher court.”
(Auto Equity Sales, Inc. v. Superior Court of Santa Clara County (1962)
57 Cal.2d 450
,
455.)
19
to give instructions on a lesser included offense, and that the omission of such
instructions in whole or in part was error, does not resolve the question whether the error
was prejudicial. Application of the Watson standard of appellate review may disclose
that, though error occurred, it was harmless.” (Id. at pp. 177-178, fn. omitted.)
In viewing the evidence in this light, we conclude that there was a reasonable
probability Miranda would have been convicted of only battery on count 1 had the
instruction been given. The evidence supporting the “unconsciousness” element
consisted only of S.C.’s testimony, and the testimony does not clearly establish that S.C.
was “unconscious” (as the term has been construed) when Miranda orally copulated her.
The incident came up several times during her forensic interview and trial testimony, and
her statements in recounting these moments could support either a conclusion that she
was already fully awake when orally copulated or that she was not. On the one hand,
when asked during the forensic interview what part of the vagina Miranda licked, S.C.
stated that she was not sure because she was “half asleep when [she] felt something down
there.” This statement suggests that she was unconscious at the time. On the other hand,
S.C. also testified that, although she was “half asleep” when she felt Miranda pull down
her pants and underwear, Miranda licking her is “what actually woke [her] up
completely,” and that she “didn’t know what was going on until [she] actually felt
something lick” her. Depending on how much time passed between when Miranda
pulled down S.C.’s pants and underwear, licked her rear, and then licked her genitals,
these latter statements could either suggest that she became fully awake the moment
20
Miranda licked her rear—in which case she was not “unconscious” when Miranda orally
copulated her—or that she only became fully awake at some later moment. Accordingly,
there exists a reasonable chance the jury would have found Miranda guilty of only battery
on this count.
Miranda’s defense was that he never inappropriately touched S.C. or A.C. at all. It
is apparent from the jury’s verdict—guilty on all 13 crimes charged—that the jury
rejected this defense. But this does not mean that the jury accepted all the details of the
sexual contact precisely as charged, where there were ambiguities in the trial evidence.
We cannot rule out the reasonable possibility that, had the jury been properly instructed
on lesser included offenses, it would have returned a verdict consistent with a view that
Miranda had committed some lesser crime against S.C. (See, e.g., People v. Campbell
(2015)
233 Cal.App.4th 148
, 174 [reversing convictions where they “may have resulted
from the ‘all-or-nothing’ choice the instructions gave the jury”].)
A jury should have the unimpeded ability to reach a verdict “‘that is neither
“harsher [n]or more lenient than the evidence merits”’” “‘within the charge chosen by the
prosecution,’” which is why trial courts have a duty to instruct on lesser included
offenses even when requested by no party. (Smith, supra, 57 Cal.4th at pp. 239-240.)
10
Because the failure to do so here is prejudicial, the conviction on count 1 is reversed.
10
We have found a sentencing issue on count 1, raised by neither party, that,
while made moot by the reversal, may nevertheless appear again on remand if left
unaddressed.
At sentencing, the trial court imposed a One Strike sentence of 15 years to life on
count 1, but oral copulation of an unconscious person is not a crime that a One Strike
21
B. Sufficiency of the Evidence Regarding Victim Unconsciousness on Counts 2 and 3
Miranda challenges the sufficiency of the evidence on counts 1 through 3, but we
need only address counts 2 and 3 in light of our reversal on count 1. Miranda contends
that there was no substantial evidence to show that S.C. was unconscious when the acts
occurred. We disagree.
“The test for evaluating a sufficiency of evidence claim is deferential: ‘whether,
on the entire record, a rational trier of fact could find the defendant guilty beyond a
reasonable doubt.’ [Citation.] We must ‘view the evidence in the light most favorable to
the People’ and ‘presume in support of the judgment the existence of every fact the trier
could reasonably deduce from the evidence.’ [Citation.] We must also ‘accept logical
inferences that the jury might have drawn from the circumstantial evidence.’ [Citation.]”
(People v. Flores (2020)
9 Cal.5th 371
, 411.) A sense that “‘the circumstances also
sentence can attach to. Section 667.61, subdivision (c), which lists the applicable
predicate crimes, includes certain forms of oral copulation, but it does not include oral
copulation of an unconscious person. (See § 667.61, subd. (c)(7).) Rather, the trial court
should have imposed a One Strike sentence on count 4, forcible oral copulation of a
minor 14 years old or older. That crime is listed in section 667.61, subdivision (c)(7),
and it also was the predicate charge relating to S.C. the jury was told to consider in
determining whether the multiple-victim allegation was true. (See § 667.61, subd. (c)(7)
[listing former § 288a, subd. (c)(2)(C), forcible oral copulation of a minor 14 or older].)
Moreover, the oversight may have added two years to Miranda’s total sentence,
assuming the trial court would have imposed the midterm on count 1 (as it did on count
4) had the error not occurred. Although the midterm sentence for count 4 is eight years,
the midterm sentence for count 1 is only six years. (See former § 288a, subds. (c)(2)(A)
[providing midterm sentence of eight years for forcible oral copulation of a minor 14
years old or older], (f) [providing midterm sentence of six years for oral copulation of an
unconscious person].) As the trial court stated at sentencing, Miranda was being
sentenced to the midterm sentence on count 4 “due to the mitigating circumstances on his
part,” and it is at least plausible to believe the trial court would have similarly imposed
the midterm sentence on count 1 if it imposed the One Strike sentence on count 4 instead.
22
might reasonably be reconciled with a contrary finding would not warrant reversal of the
judgment.’” (People v. Lewis (2009)
46 Cal.4th 1255
, 1290.)
The evidence was sufficient to show that S.C. was unconscious of the nature of
Miranda’s acts when he raped her and when he sexually penetrated her. As discussed in
the previous section, complete unconsciousness is not required. (See People v.
Ogunmola, supra, 193 Cal.App.3d at p. 279 [“In this context, unconscious is related to
the issue of consent . . . .”]; Dancy, supra, 102 Cal.App.4th at p. 36 [“a man who
intentionally engages in sexual intercourse with a woman he knows to be unconscious is
clearly aware that he is wrongfully depriving the woman of her right to withhold her
consent to the act at the time of penetration”].)
We have already found that, when viewed in the light most favorable to Miranda,
there was no substantial evidence that Miranda committed only battery because, for
instance, the unconsciousness element of counts 2 or 3 were not satisfied. It should come
as no surprise, then, that when we view the evidence in the light most favorable to the
People, we find sufficient evidence that S.C. was unconscious of the nature of Miranda’s
acts during the other incidents. As to count 2, rape of an unconscious person, S.C. stated
that later on September 8, S.C. “woke up” to realize that Miranda’s penis was inside her.
As to count 3, sexual penetration of an unconscious person, S.C. testified that on one
occasion S.C. felt Miranda touch her genitals underneath her clothes. This occurred as
she “was falling asleep” and that it “[t]ook [her] a while to realize” what was happening.
23
Accordingly, on this record, there was sufficient evidence for the jury to conclude that the
“unconscious” element of counts 2 and 3 were satisfied.
C. Eligibility for Youth Offender Parole Hearings Under One Strike Law
Section 3051 gives “youth offenders” committed to long prison sentences parole
suitability hearings beginning in their 15th, 20th, or 25th year of incarceration, depending
on the circumstances. (§ 3051, subds. (a)-(b).) In enacting section 3051, the Legislature
found that “youthfulness both lessens a juvenile’s moral culpability and enhances the
prospect that, as a youth matures into an adult and neurological development occurs,
these individuals can become contributing members of society.” (Stats. 2013, ch. 312,
§ 1.) It thus sought to “create a process by which growth and maturity of youthful
offenders can be assessed and a meaningful opportunity for release established.” (Ibid.)
Originally, section 3051 applied only to those who were juveniles (i.e., under 18)
at the time they committed a “controlling offense,” the “offense or enhancement for
which any sentencing court imposed the longest term of imprisonment” (§ 3051, subd.
(a)(2)(B)). (See People v. Williams (2020)
47 Cal.App.5th 475
, 488, review granted July
22, 2020, S262229 (Williams).) Section 3051 was then expanded over time to make
those who were younger than 23, and then those who were 25 or younger, at the time of
the controlling offense to be eligible for parole hearings as well. (People v. Williams,
24
supra, at p. 488.) Those sentenced under the One Strike law, however, are excluded from
11
eligibility. (§ 3051, subd. (h).)
Miranda, who was 18 years old when first charged with the crimes, was sentenced
under the One Strike law and is therefore ineligible for youth offender parole hearings.
He contends that his exclusion violates his right to equal protection under the United
States and California Constitutions because others, such as certain youth offenders
convicted of first degree murder, are not so excluded. Our Supreme Court has granted
review on this issue. (See Williams, supra,
47 Cal.App.5th 475
, review granted July 22,
2020, S262229.)
Our reversal on count 1 means that his sentence is vacated, but the trial court is
sure to impose a One Strike sentence on resentencing, both because section 667.61,
subdivision (b) uses the term “shall” and because the validity of his One Strike sentence
12
has not been challenged on appeal. We therefore consider his claim and find that
section 3051, subdivision (h) does not violate equal protection.
11
Also excluded from section 3051 are those sentenced under the Three Strikes
law, those who receive a life sentence without the possibility of parole (LWOP) for a
controlling offense committed when 18 or older, and those who commit an additional
crime once 26 or older that requires malice aforethought or results in a life sentence.
(§ 3051, subd. (h).)
12
Although we have independently discovered that the One Strike sentence was
imposed on the wrong count (see ante, fn. 10), we do not find, and Miranda has not
contended, that imposing a One Strike sentence on the correct count would be improper.
25
1. Similarly Situated
“‘“The first prerequisite to a meritorious claim under the equal protection clause is
a showing that the state has adopted a classification that affects two or more similarly
situated groups in an unequal manner.”’” (People v. McKee (2010)
47 Cal.4th 1172
,
1202.) The People contend that persons convicted of different crimes are not similarly
situated for equal protection purposes. Although this may be true as a general matter, in
People v. Hofsheier (2006)
37 Cal.4th 1185
(Hofsheier), overruled on another ground in
Johnson v. Department of Justice (2015)
60 Cal.4th 871
, 875, our Supreme Court
rejected the claim that individuals convicted of different crimes are never similarly
situated.
Hofsheier stated that “[i]t may well be that in most cases . . . persons who commit
different crimes are not similarly situated, but there is not and cannot be an absolute rule
to this effect, because the decision of the Legislature to distinguish between similar
criminal acts is itself a decision subject to equal protection scrutiny.” (Hofsheier, supra,
60 Cal.4th at p. 1199, fn. omitted.) “‘The Equal Protection Clause requires more of a
state law than nondiscriminatory application within the class it establishes. [Citation.] It
also imposes a requirement of some rationality in the nature of the class singled out.’
(Rinaldi v. Yeager (1966)
384 U.S. 305
, 308-309, [
16 L.Ed.2d 577
,
86 S.Ct. 1497
]; see
People v. Nguyen (1997)
54 Cal.App.4th 705
, 714, [
63 Cal.Rptr.2d 173
].) Otherwise, the
state could arbitrarily discriminate between similarly situated persons simply by
classifying their conduct under different criminal statutes.” (Hofsheier,
supra,
at p.
26
1199.) “[T]he equal protection clause,” Hofsheier noted, was indeed “created in part to
nullify penal codes in former slave states that classified offenses against Blacks as
different crimes, with lesser penalties, than offenses against Whites.” (Id. at p. 1199, fn.
4.)
The question then, appropriately framed, is not “‘whether persons are similarly
situated for all purposes, but “whether they are similarly situated for purposes of the law
challenged.”’” (Hofsheier,
supra,
37 Cal.4th at pp. 1199-1200.) Here, both someone 25
or younger who commits a One Strike crime and someone 25 or younger who commits
first degree murder are youth offenders who have committed serious crimes. Because
section 3051 “establish[es] a parole eligibility mechanism that provides a [youth
offender] . . . the opportunity to obtain release when he or she has shown that he or she
has rehabilitated and gained maturity” (Stats. 2013, ch. 312, § 1), individuals such as
Miranda are similarly situated with those who, through the commission of other crimes,
13
are eligible for youth offender parole hearings.
13
In re Williams (2020)
57 Cal.App.5th 427
, which also rejected an equal
protection challenge to section 3051, suggested—but seemingly stopped short of
holding—that someone under 25 sentenced to LWOP is not similarly situated to someone
under 25 sentenced to a parole-eligible life sentence. (See id. at p. 435 [“We
disagree . . . that youth offenders sentenced to LWOP and those youth offenders
sentenced to parole-eligible life terms are similarly situated with respect to the
Legislature’s . . . goal[ of] calibrat[ing] sentences in accordance with youthful offenders’
diminished culpability.”], italics added; see also ibid. [“Petitioner argues, and we are
inclined to agree, that youth offenders sentenced to LWOP and those sentenced
to . . . parole-eligible life terms are similarly situated with respect to the
Legislature’s . . . goal[ of] account[ing] for youthful offenders’ potential for growth and
rehabilitation.”].) In doing so, In re Williams relied on the same partially inaccurate
proposition the People rely on here—that persons convicted of different crimes are not
27
2. Rational Basis
“Where, as here, a statute involves neither a suspect class nor a fundamental right,
it need only meet minimum equal protection standards, and survive ‘rational basis
review.’” (People v. Turnage (2012)
55 Cal.4th 62
, 74.) Under rational basis review,
“equal protection of the law is denied only where there is no ‘rational relationship
between the disparity of treatment and some legitimate governmental purpose.’
[Citation.] In other words, the legislation survives constitutional scrutiny as long as there
is ‘“any reasonably conceivable state of facts that could provide a rational basis for the
classification.”’” (Ibid.)
Importantly, rational basis review “does not depend upon whether lawmakers ever
actually articulated the purpose they sought to achieve. Nor must the underlying
rationale be empirically substantiated. [Citation.] While the realities of the subject
matter cannot be completely ignored [citation], a court may engage in ‘“rational
speculation”’ as to the justifications for the legislative choice. [Citation.] It is immaterial
for rational basis review ‘whether or not’ any such speculation has ‘a foundation in the
record.’” (People v. Turnage, supra, 55 Cal.4th at pp. 74-75.)
similarly situated. (See ibid.) So too did People v. Moseley (2021)
59 Cal.App.5th 1160
(Moseley)), another case that rejected an equal protection challenge to section 3051. In
Moseley, however, the court expressly stated that youthful sex offenders are not similarly
situated to youthful murderers. (See id. at p. 1169 [“Moseley, a youthful sex offender, is
not similarly situated to a youthful murderer as they are different crimes.”].) To the
extent In re Williams and Moseley stand for the proposition that an equal protection
challenge to section 3051 for individuals such as Miranda fails on the “similarly situated”
prong, we disagree for the reasons stated above.
28
Here, although the Legislature declared its intent in enacting section 3051, nothing
in the legislative history similarly explains why it chose to exclude One Strike offenders
such as Miranda. What is clear is that section 3051 was meant to reform the practice of
imprisoning youth offenders for lengthy sentences without any meaningful possibility of
parole. In People v. Caballero (2012)
55 Cal.4th 262
, our Supreme Court urged the
Legislature “to enact legislation establishing a parole eligibility mechanism that provides
a defendant serving a de facto life sentence without possibility of parole for nonhomicide
crimes that he or she committed as a juvenile with the opportunity to obtain release on a
showing of rehabilitation and maturity.” (Id. at p. 269, fn. 5.) “The Legislature complied
and then went a step further, creating a parole eligibility mechanism that includes
homicide defendants.” (People v. Edwards (2019)
34 Cal.App.5th 183
, 194 (Edwards);
see also Stats. 2013, ch. 312, § 1 [“The purpose of this act is to establish a parole
eligibility mechanism . . . in accordance with the decision of the California Supreme
Court in [People v. Caballero (2012),]
55 Cal.4th 262
and the decisions of the United
States Supreme Court in Graham[ v. Florida] (2010)
560 U.S. 48
, and Miller [v.
Alabama (2012)]
183 L.Ed.2d 407
.”].) While creating a mechanism for youth offenders
generally to be considered for early release, however, it also opted to not extend that
reform to certain individuals such as Miranda.
We see two reasons why the Legislature’s decision to make One Strikers ineligible
for youth offender parole hearings is rational. The first is that, as one of a series of
reform measures where the Legislature has incrementally taken steps to expand the
29
situations in which youth offenders are treated differently from adult offenders, the
Legislature could have thought that extending section 3051 to One Strikers was too large
an additional reform for the current moment. As the United States Supreme Court has
repeatedly emphasized, “[e]vils in the same field may be of different dimensions and
proportions, requiring different remedies,” and reform may validly “take one step at a
time,” “select[ing] one phase of one field and apply[ing] a remedy there, neglecting the
others.” (Williamson v. Lee Optical of Oklahoma, Inc. (1955)
348 U.S. 483
, 489; see also
Roschen v. Ward (1929)
279 U.S. 337
, 339 [“[a] statute is not invalid under the
Constitution because it might have gone farther than it did”]; Semler v. Oregon State Bd.
of Dental Examiners (1935)
294 U.S. 608
, 610 [a legislature is not “bound . . . to strike at
all evils at the same time”]; Railway Exp. Agency v. People of State of New York (1949)
336 U.S. 106
, 110 [“It is no requirement of equal protection that all evils of the same
genus be eradicated or none at all.”]; F.C.C. v. Beach Communications, Inc. (1993)
508 U.S. 307
, 316 [“the legislature must be allowed leeway to approach a perceived problem
incrementally”].) Accordingly, an incremental approach may be constitutionally
sufficient, at least where there is a rational basis for the manner in which the Legislature
has proceeded to address different dimensions or proportions of a problem. The
Legislature’s gradual expansion of section 3051 to include those 25 and younger shows
that this reform has indeed progressed in such an incremental manner.
The second reason, closely related to the first, is that the Legislature may have
selectively extended section 3051’s benefits to some but not all as a means of testing
30
whether youth offender parole hearings will benefit or harm society as a whole. (See
People v. Acosta (2015)
242 Cal.App.4th 521
, 527-528 [“We have no difficulty
concluding that the electorate could rationally extend misdemeanor punishment to some
nonviolent offenses but not to others, as a means of testing whether Proposition 47 has a
positive or negative impact on the criminal justice system.”].) As with the first, this
second rationale is based on the rule that reforms need not be all-or-nothing.
Importantly, this is not a situation where there can be no rational basis for the
classification itself, for instance, if eligibility for youth offender parole hearings turns on
a prisoner’s height or hair color. (See Armour v. City of Indianapolis, Ind. (2012)
566 U.S. 673
, 681 [the “‘relationship of the classification to’” a legislative goal may not be
“‘so attenuated as to render the distinction arbitrary or irrational’”]; Hofsheier,
supra,
60
Cal.4th at p. 1199 [equal protection “imposes a requirement of some rationality in the
nature of the class singled out”].) Rather, the Legislature appears to have excluded from
early parole eligibility those whom it saw as exceptionally likely to reoffend. The One
Strike law, for instance, reaches only serious sex crimes, and the electorate, in passing an
initiative amending the One Strike law, has found that sex offenders “have very high
recidivism rates,” “are the least likely to be cured[,] and [are] the most likely to
reoffend.” (Voter Information Guide, Gen. Elec. (Nov. 7, 2006) text of Prop. 83, § 2(b),
p. 127.) Similarly, the Three Strikes law has an “unambiguous purpose” of “provid[ing]
greater punishment for recidivists.” (People v. Davis (1997)
15 Cal.4th 1096
, 1099; see
§ 667, subd. (b).) By excluding youth offenders convicted under either of these laws, the
31
Legislature appears to have drawn a line at recidivism risk. We cannot say that line was
arbitrary or irrational. (See also Moseley, supra, 59 Cal.App.5th at p. 1170 [rejecting
equal protection challenge to section 3051, subdivision (h) because “the risk of
recidivism provides a rational basis”]; Williams, supra, 47 Cal.App.5th at p. 493.)
In contending otherwise, Miranda relies on Edwards, which held that the
exclusion of One Strikers in section 3051, subdivision (h) violated equal protection.
(Edwards, supra, 34 Cal.App.5th at p. 197.) But there the court relied on the fact that the
People had “cite[d] no evidence that violent rapists recidivate more than other felons.”
(Id. at p. 199.) However, the electoral findings cited above reflect a contrary
understanding, and their adoption may have additionally given the Legislature pause
14
when considering whether to extend a benefit to One Striker sex offenders.
Additionally, Edwards did not cite or rely on the United States Supreme Court’s repeated
admonition that “the legislature must be allowed leeway to approach a perceived problem
incrementally” (F.C.C. v. Beach Communications, Inc.,
supra,
508 U.S. at p. 316). For
these reasons, as well as those stated in Williams, supra, 47 Cal.App.5th at pp. 492-493,
we decline to follow Edwards.
14
Edwards also cited an opinion, since vacated, that in turn cited a report
concluding juvenile violent sex offenders had a lower recidivism rate than most other
types of offenders. (Edwards, supra, 34 Cal.App.5th at p. 199, citing People v. Bell
(2016)
3 Cal.App.5th 865
, ordered vacated (June 13, 2018, S238339).) But as that
vacated opinion then went on to note, “one report that reaches contrary conclusions does
not mean that the Legislature’s classification of crimes is unreasonable.” (People v. Bell,
supra, 3 Cal.App.5th at p. 880.)
32
Accordingly, we find that section 3051, subdivision (h) does not violate equal
protection. (Accord, Moseley, supra, 59 Cal.App.5th at p. 1170; In re Williams, supra,
57 Cal.App.5th at p. 436; Williams, supra, 47 Cal.App.5th at p. 493.)
D. Dueñas Error
Relying on Dueñas, Miranda contends that the trial court violated his due process
rights when it imposed $1,510 in court operations assessments, conviction assessments,
and restitution fines on him without finding that he had a present ability to pay.
Because we reverse his conviction in part, we need not reach the merits of his
arguments here. Miranda will have an opportunity to raise such challenges before the
trial court on remand.
III. DISPOSITION
The conviction on count 1 is reversed, Miranda’s sentence is vacated in its
entirety, and the matter is remanded for further proceedings consistent with this opinion.
In all other respects, the judgment is affirmed.
CERTIFIED FOR PUBLICATION
RAPHAEL
J.
We concur:
McKINSTER
Acting P. J.
SLOUGH
J.
33 |
4,490,072 | 2020-01-17 22:02:10.736216+00 | Teussell | null | *515OPINION.
Teussell:
Two issues survive for decision. The first relates to cash and stock in trade inherited by the petitioner from his brother. The second is a question of inventory on hand at the end of 1918. Both issues are questions purely of fact.
A great deal of the rather voluminous testimony in this case is too indefinite to enable an exact finding of all of the relevant facts, yet, even though we also attach little weight to the investigations and the conclusions of a public accountant employed by the petitioner in an endeavor to uncover the missing details, we are satisfied that the determination of the respondent is grossly erroneous and are of opinion that it should be revised so far as now possible.
We will consider, first, the cash inherited by the petitioner and which the petitioner alleges in the first issue was included in income by the respondent. The petitioner makes no further contention relative to the bank deposit of $1,905.68, and there is no satisfactory evidence in support of the allegation. We are unable to make any redetermination in this respect. An amount of $25,000 cash was also inherited by the petitioner, and in this regard there may have *516been opportunity for error. The petitioner contends that this cash was deposited in the bank along with the cash income from the business which the petitioner proceeded to conduct after the death of his brother, and, since the respondent has computed the income upon the basis of the aggregate of the bank deposits, an overstatement of income in the amount of $25,000 resulted. The evidence shows that within 60 days after the death of the brother the petitioner deposited in the bank an aggregate of $25,606.25 and subsequently there were further large deposits. These deposits were made at various times, and we are without information as to the dates and amounts which combine to make the aggregate in evidence or as to the source of the cash deposited. In the entire absence of proof that the $25,000 inherited cash was at any time actually deposited, in whole or in part, in the bank, we are asked to entertain a presumption that it must have been included in the aggregate of the deposits during the first 60 days, although the fact that the business was operated during that period offers possibilities and even probabilities of the realization of large amounts of cash. We do not feel that the income has been shown to have been overstated by the respondent in this respect.
The remaining part of the first issue and the whole of the second issue relate to inventories of stock in trade on hand at the beginning of petitioner’s business operations and at the end of 1918. For reasons which will presently appear, we will consider these questions together. A careful consideration of the evidence convinces us that there was undoubtedly a considerable stock of liquors on hand on the boats at Grant Pass when the petitioner’s brother died. As to its value, we are of opinion that it was worth at least $25,000. In determining the tax liabilities of the petitioner for the taxable years, that value of the opening inventory is allowable in the computation of subsequent gains or losses. This opening inventory has not been given consideration by the respondent in computing income. However, this fact alone is not determinative of the issues for, obviously, in this business, requiring the consideration of inventories, a computation of the income depends also upon the closing inventory. We are satisfied that at the end of 1918 a stock in trade remained on hand. The contentions of the petitioner, therefore, when combined amount to this: that the amount of the income for 1918 is erroneous to the extent that the opening inventory differs from the closing inventory, and the amount of the income for 1919 is overstated by the amount of the opening inventory which, of course is the same as the closing inventory for the previous year. Unfortunately, the petitioner failed to take an inventory at the end of 1918; there is no satisfactory evidence, and we have no idea of its allowable value, Petitioner proposes to use an estimated inven*517tory prepared by a public accountant in his employ, but this is unallowable in every way. The quantities are estimated, the pi’ices are selling prices, and there is no evidence whatever of the cost of the stock. The market value may only be used when lower than cost. Compare section 203 of the Revenue Act of 1918 and articles 1581 to 1584, inclusive, of Regulations 62.
We are nevertheless satisfied that the determinatiom of the respondent should be revised in this respect if there is any means at hand to do so. The respondent has used, a number of times, various percentage methods of computing income. See David Welsch, 2 B. T. A. 64; Benjamin Colite, 3 B. T. A. 947; Jacob Roffwarg, 2 B. T. A. 332; M. Cohen, 5 B. T. A. 240. In other cases we have approved apportionment of income upon a time basis. See Carl Lang, 3 B. T. A. 417; C. E. Cooper, 4 B. T. A. 1267. In the case of Cullom & Ghertner Co., 2 B. T. A. 1299, the gross profit was apportioned on a percentage basis.
In the instant case we think a use of the percentage of gross profit is the most satisfactory method at hand. Over the period during which the petitioner operated his business beginning with the inheritance of it from his brother, and ending in the following year with a disposal of the entire stock in trade and the closing up of the business, we have the following known factors: the aggregate of gross income, the aggregate of stock in trade purchased, and in addition we have determined in this opinion the value, for income-tax purposes, of the opening inventory. From these factors the rate per centum of gross profit on sales should be computed and the gross income should be apportioned ratably according to the amount of the sales attributed to each year. The deductions allowed by the respondent other than the cost of goods sold are not at issue and should be allowed without alteration in the redetermination.
Judgment will be rendered ■pursuant to Rule 50. |
4,490,073 | 2020-01-17 22:02:10.766013+00 | Geeen | null | *524OPINION.
Geeen:
Before considering the errors assigned in these proceedings, we feel constrained to mention some of the difficulties with which we were confronted in making findings of fact.
The trial of the case consumed over three days, during which time the several witnesses were called and recalled as many as eight times. For reasons immediately apparent to anyone who reads the record, and particularly to one who saw them on the witness stand, the testimony of the witnesses, Karrick and Plager, is entitled to little weight, except where corroborated by other witnesses. They testified to many matters as to which, we, for the above reason, can make no findings of fact. Subsequent to the revenue agent’s investigation pertinent records were destroyed at the direction of the petitioner’s board of directors. Little direct evidence was offered relative to the March 1, 1913, value of the petitioner’s warehouse, but an attempt was made to establish, through estimates of replacement costs, a March 1, 1913, value for purposes of depreciation and obsolescence, which value was greatly in excess of the value previously used by the petitioner before the District of Columbia taxing authorities, as well as the Income Tax Unit, and also in excess of the value shown on the petitioner’s books. These difficulties are in no wise to be attributed to counsel for the parties.
We now take up the errors assigned, in the order in which they have been previously stated.
1. The question of the statute of limitations was decided adversely to the petitioner at the hearing. The petitioner was incorporated under the laws of the State of Virginia, under the name of the Fidelity Storage Corporation. It advertised as the Fidelity Storage Co. The two names were synonymous in Washington, where it was the only Fidelity Storage concern dealing with the public and there was no corporate entity in existence known as the Fidelity Storage Co. The two designations were used indiscriminately by the petitioner in making tax returns. We are of the opinion that the fact that the waiver in question was signed “ The Fidelity Storage Company,” by the petitioner’s president, and had the petitioner’s corporate seal affixed, is not such a defect as to prevent the extension of the period of assessment for the years 1918 and 1919.
*5252. The petitioner, at all times, kept its books of account on the accrual basis. In 1918, by a resolution of the board of directors, it voted to pay Karrick, its president, $9,000, as salary for the years 1906 to 1908, inclusive. When the revenue agent was investigating the petitioner’s books for the year 1918 he criticized this item as not being a projier deduction for the year 1918. After this investigation, in order to overcome the objection, the resolutions were rewritten and the secretary directed to destroy the original minutes. We have before us the testimony of the revenue agent and the reconstructed record. Karrick, in his original return for 1918, failed to report the $9,000 as additional salary for that year, which may indicate that he considered it as compensation for services performed in prior years. The evidence fails to support the contention of the petitioner that $13,000 was a reasonable salary for its president in the year 1918. We are of the opinion that the respondent’s determination that the $9,000 was compensation for prior years and not a proper deduction for the year 1918 should be sustained.
3. As to the matter of $1,050 paid to Karrick in 1918 on account of interest, the facts in regard to this are meager and also confused by reason of the destruction of the original records. From the facts presented, we are unable to find any error in the respondent’s determination, and, accordingly, it is approved.
4. In 1910 the petitioner leased a portion of its premises to the Sealed Package Ice Co., which began the manufacture of ice in 1911 and after being in operation for six weeks went into bankruptcy. Karrick in 1913 purchased the assets from the trustee for 10 per cent of the unsecured claims and by surrendering his own claims and the claims of the petitioner. The petitioner is contending that it had an agreement with Karrick by which it was to participate with him in proportion to its preferred claim after he had been reimbursed for the cash expended. The record does not support any such contention, and we are of the opinion that the respondent’s determination that the transaction with the Sealed Package Ice Co., as far as the petitioner was concerned, was entirely closed in 1913, when it surrendered its claims to the trustee in bankruptcy.
5. The respondent has determined a March 1, 1913, value on the petitioner’s building of $278,595.32, and has allowed depreciation on this amount at the rate of 2y2 per cent for the years in question. The petitioner claims a valuation of $450,000 and a life of 30 years, or a depreciation rate of Sy2 per cent.
Such evidence as we have is not sufficient to overcome the presumption of correctness of the determination of value made by the respondent, and his determination is sustained. The petitioner *526contends that the increase in colored population has decreased the useful life of the building and that the rate of depreciation should be increased from 2y2 to 3% per cent. The warehouse is centrally located in the City of Washington. We have found its life to be 40 years, and, from the evidence presented, we are unable to find that the change in population has affected the useful life of the building.
6. The next error relates to the respondent’s refusal to allow deductions as ordinary and necessary business expenses, from gross income in the years 1918 and 1920 for certain sums that were paid by Karrick through his real estate office. No books were offered in connection with these transactions. It is astonishing that the petitioner with a bookkeeping force at hand, and that Karrick, the president of a bank and operating a real estate office, had no record available to substantiate the verbal statements of an employee of Karrick’s real estate agency. On account of lack of proof, the respondent’s determination should be sustained.
7. As to the assignment of error relating to the loss sustained by reason of the abandonment of the electrical charging equipment, the petitioner has failed to show the March 1, 1913, value of this equipment or the rate of depreciation sustained. It appears from the record that the electrical charging equipment was in fact abandoned some time in the year 1916. Accordingly, the respondent’s determination should be affirmed.
8. The next assignment of error relates to the expenditures in connection with grills, skylights, and roof on the petitioner’s warehouse, which are claimed as ordinary and necessary repairs and not betterments.
As to these three major expenditures no attempt was made to show any of the details of the cost of the work. The petitioner’s books show a credit of $15,500 to Karrick, which it is contended, represents these items. The original grills were damaged by the falling of the cornice. No attempt was made to show the depreciated value of the grills which were removed. New and heavier grills were installed at an expense of $877.23. Seventeen skylights were rebuilt, at a cost of $2,800. These were installed on the roof in a manner which was more effective than the original installation. Three thousand dollars was spent on the roof. It is apparent from the record that this expenditure represents more than the cost of the usual annual repairs, and represents about two-thirds of the cost of a new roof. As to these three expenditures, the record contains nothing that would disprove the respondent’s determination that they were in the nature of betterments and should be capitalized,
*5279. No evidence was offered relative to the alleged loss resulting from the removal of the fixtures and equipment installed for the Northwest Packing Co., and as to this issue the respondent will be sustained.
The petitioner, at the hearing, abandoned the issues set up in paragraphs 10, 11, and 12.
Judgment wild he entered for the respondent. |
4,490,075 | 2020-01-17 22:02:10.82217+00 | Morris | null | *530OPINION.
MoRRis:
During 1921 and 1922 the petitioner sustained a net loss of $48,090.12 and $268.77, respectively, the latter of which is computed without taking into consideration the amount of the former, and for the j^ears 1923 and 1924 he had a net income of $16,787.09 and $63,983.06, respectively, both of which sums are computed without taking into consideration the said net losses for prior years. In his determination of the deficiency for the taxable year involved the respondent subtracted from the said sum of $63,983.06 the amount of the net loss for 1922 of $268.77, leaving a balance of taxable net income of $63,714.29.
The petitioner seeks to have the net loss for 1921 applied to and made a part of the computation for each of the successive years 1922 and 1923 and the resulting loss in 1923 applied to the 1924 income in determining the amount of the net taxable income for that year.
The petitioner’s entire argument is based up>on section 204 (b) of the Revenue Act of 1921, and particularly upon that portion providing that for the second succeeding taxable year the amount of the excess of the net loss over the income for the succeeding taxable year shall be allowed as a deduction in computing net income, and apparently draws the conclusion therefrom that when so used, and the loss is in excess of the income for the second succeeding taxable year, a net loss is created for that year, which may be carried forward.
Section 206 of the Revenue Act of 1924 provides what net losses might be deducted during and after that taxable year, and in doing so it specifically provides in subsection (e) thereof that a taxpayer *531may go back only so far as 1922 for net losses which might be deducted during the taxable year 1924. Subsections (e) and (f) of that section provide:
(e) If for the taxable year 1922 a taxpayer sustained a net loss in excess of his net income for the taxable year 1923 (such net loss and net income being computed under the Revenue Act of 1921), the amount of such excess shall be allowed as a deduction in computing net income for the taxable year 1924 in accordance with the method provided in subdivisions (b) and (c) of this section.
(f) If for the taxable year 1923 a taxpayer sustained a net loss within the provisions of the Revenue Act of 1921, the amount of such net loss shall be allowed as a deduction in computing net income for the two succeeding taxable years to the same extent and in the same manner as a net loss sustained for one taxable year is, under this Act, allowed as a deduction for the two succeeding taxable years.
Therefore, any net loss “ sustained ” for the taxable year 1922 in excess of net income for 1923 shall, according to the foregoing, be allowed as a deduction in computing net income for 1924, but there is no provision therein for the deduction in 1924 of a net loss sustained in a year prior to 1922.
In National Slag Co., 16 B. T. A. 1310, after quoting the following language from the report of the Senate Finance Committee on the Revenue Act of 1924:
This subdivision corresponds to section 204 (b) of the existing law. It should be noticed that in the bill it is provided that the amount of the net loss shall be used as a deduction in computing net income for the succeeding taxable years; it is not allowable, however, as a deduction in computing the net loss of the succeeding taxable year, since to do this would allow the benefits of the net loss to be taken not only in the two succeeding taxable years but for an indefinite time until it was absolutely wiped out,
we said:
It seems clear from the foregoing that Congress intended that the net loss of one year should be allowed as a deduction, in computing the net income of the succeeding year, only to the extent that the net loss did not exceed the net income of the latter year, and that Congress did not intend such loss should be allowed as a deduction in the succeeding taxable year if there was no net income in that year from which to make the deduction, since to do so would serve only to increase the net loss of the latter year, resulting in an accumulation or pyramiding of losses until absolutely wiped out.
We are of the opinion that the respondent’s determination is in accordance with the law.
Judgment will be entered for the respondent. |
4,669,324 | 2021-03-18 23:02:05.155619+00 | null | http://www.courts.ca.gov/opinions/documents/F078693.PDF | Filed 3/18/21
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F078693
Plaintiff and Respondent,
(Super. Ct. No. BF168714A)
v.
EDDIE NIETO, OPINION
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Kern County. John R.
Brownlee, Judge.
Cara DeVito, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and
Catherine Chatman, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
Eddie Nieto lured a six-year-old girl out of her grandmother’s home and sexually
abused her near an open field adjacent to the house. A jury convicted him of committing
lewd acts and found true a special allegation he kidnapped the victim. The kidnapping
finding mandated a life sentence under the One Strike law.
On appeal, Nieto challenges the jury’s kidnapping finding. In particular, he points
out CALCRIM No. 1201, the pattern kidnapping jury instruction used in this case,
applies to general kidnapping by force. He claims the instruction erroneously allows
deception as an alternative to force. He also argues the evidence was insufficient to
prove kidnapping.
We agree the instruction wrongly permits a jury to find deception itself sufficient
to prove general kidnapping. However, for the reasons that follow, the instructional error
in this case was harmless beyond a reasonable doubt. Because the evidence was
otherwise sufficient to prove kidnapping, we will affirm the judgment.
BACKGROUND
Charges
The Kern County District Attorney charged Nieto with committing two crimes:
Forcible lewd acts on a child under age 14 (Pen. Code,1 § 288, subd. (b)(1); count 1) and
lewd acts on a child under age 14 (§ 288, subd. (a); count 2). Each charge included an
enhancement he “kidnapped the victim in violation of section 207, 209, or 209.5 of the
Penal Code, within the meaning of Penal Code section 667.61(e)(1).”2
Trial Evidence
The victim in this case is a six-year-old girl. One day she was playing in her
grandmother’s yard while a “dirty [man] with short hair” was nearby. That man drank
water out of a jug near the fence next to the home. The grandmother eventually called
the victim’s mother to take home the victim and her brother, who was also playing in the
yard, because there was a “creepy guy around.”
Meanwhile, the man had asked the victim if she wanted “to come to … [his]
house.” Later, once the kids were inside the house, the victim saw the man gesturing at
1 All statutory references are to the Penal Code.
2 Section 667.61 codifies the One Strike law, which mandates a life sentence for
specific sex crimes committed with various aggravating circumstances. The charges also
included three enhancements for prior prison terms within the meaning of section 667.5,
subdivision (b). These enhancements were later dismissed.
2.
her with his hand to “come here ….” The victim “went outside … to see what he wants”
“[b]ecause [she] couldn’t hear him.” He told her, “Come here,” and they went to an
overturned white bucket close to the house near a field.
The victim stood on the bucket while the man stood behind her. Both of their
pants were lowered and he touched her “[p]rivate.” She asked the man to stop and tried
to escape but he held her in place.
The grandmother intervened and the man “buckl[ed]” his pants as he ran away
through the field. She identified Nieto as the assailant at trial.3
Law enforcement arrived some time after the man fled. The water jug was
swabbed for DNA. The victim was taken to the hospital, where an examination of her
clothing revealed three bloodstains.4 Her clothing was stored as evidence. Ultimately,
the DNA swabs from the jug and the three bloodstains all matched Nieto’s DNA profile.
Verdict and Sentence
Nieto was convicted as charged. He was sentenced to serve 25 years to life in
prison.
DISCUSSION
As noted, Nieto was alleged to have “kidnapped the victim in violation of
section 207, 209, or 209.5 of the Penal Code, within the meaning of Penal Code
section 667.61(e)(1).” Section 207 describes distinct acts each of which constitute
kidnapping. (See § 207, subds. (a)-(d); People v. Rhoden (1972)
6 Cal.3d 519
, 526
[“section 207 provides … distinct definitions … of conduct constituting” kidnapping].)
General or simple kidnapping is defined in section 207, subdivision (a), which states
“[e]very person who forcibly, or by any other means of instilling fear, steals or takes, or
3 The grandmother had failed to identify a picture of Nieto prior to trial.
The bloodstains were found on the victim’s shirt, shorts, and inside her
4
underwear.
3.
holds, detains, or arrests any person in this state, and carries the person into another
country, state, or county, or into another part of the same county, is guilty of kidnapping.”
The other section 207 definitions may be referred to as “special types” of kidnapping.
(People v. Stephenson (1974)
10 Cal.3d 652
, 660 (Stephenson).)
To explain kidnapping to the jury, the court instructed it with CALCRIM
No. 1201. This instruction explains the elements necessary to prove general kidnapping
(§ 207, subd. (a)) of a person incapable of giving consent.5 The instruction states that the
defendant must use either force or deception to move a victim.6
The primary issue on appeal is whether CALCRIM No. 1201 accurately explains
general kidnapping (§ 207, subd. (a)). Specifically, does kidnapping by deception alone
constitute general kidnapping when the victim is a young child? Nieto argues it does not.
The People contend it does. We agree with Nieto because the law does not support the
position deception is an alternative to force under general kidnapping.
While deception may certainly supplement force, it cannot supplant it. Based on
the record in this case, however, the instructional error was harmless. Section 207,
subdivision (b), specifically proscribes kidnapping by deception for child molestation.
The instructions adequately explained this special theory of kidnapping notwithstanding
the error. We conclude the jury’s verdict was based on finding true each element of
kidnapping by deception (§ 207, subd. (b)) and affirm the judgment.
A. Additional Background
The jury instruction used in this case to explain kidnapping is CALCRIM
No. 1201. As relevant, it provides the following elements “the People must prove”:
5 CALCRIM No. 1215 is the standard instruction for general kidnapping.
6 CALCRIM No. 1201 does not mention fear. Presumably this is because
movement induced by fear is objectively nonconsensual. A victim is necessarily aware
of his or her own fear but may not apprehend illicit physical force if, for example,
disabled, infantile, unconscious, or youthful.
4.
“1. The defendant used (physical force/deception) to take and
carry away an unresisting child;
“2. The defendant moved the child a substantial distance;
“AND
“3. The defendant moved the child with an illegal intent or
for an illegal purpose;
“AND
“4. The child was under 14 years old at the time of the
movement.
[¶] … [¶]
“Deception includes tricking the child into accompanying him
or her a substantial distance for an illegal purpose.”
(CALCRIM No. 1201.)
The jury in this case was instructed in this manner.
In closing argument, the prosecutor conceded kidnapping by force was not proven.
Nieto essentially conceded the lewd acts. Each party focused argument on whether
kidnapping by deception was proven.7
B. Analysis
CALCRIM No. 1201 is an instruction written to explain the crime of general
kidnapping (§ 207, subd. (a)) when the victim is incapable of consent due to age or
disability. The bench notes to the instruction indicate “[d]eceit [m]ay [s]ubstitute for
[f[orce.” We disagree because general kidnapping may be proven by deceit alone.
7 In part, Nieto argued, he “simply did the act of come here” and there was
“nothing deceiving about” that. He also claimed, the victim “wasn’t lured by anyone.
She chose to go out there. She walked out there on her own and it was not done by
deception.” These points are not repeated on appeal. In any event, we simply note the
victim testified she “went outside … to see what” Nieto wanted.
5.
“Kidnapping requires proof of asportation, i.e., proof that the defendant moved the
victim a ‘substantial distance.’ ” (People v. Singh (2019)
42 Cal.App.5th 175
, 184.)
Under section 207, “ ‘the Legislature has … deliberately provided that … special types of
kidnaping … can be accomplished by means of fraud, [but] a general act of kidnaping . . .
can only be accomplished by the use or threat of force.’ ” (Stephenson, supra, 10 Cal.3d
at p. 660.) “ ‘[A]sportation by fraud alone does not constitute general kidnapping ….’ ”
(People v. Majors (2004)
33 Cal.4th 321
, 327 (Majors).)
The CALCRIM No. 1201 deceit element is based on People v. Dalerio (2006)
144 Cal.App.4th 775
(Dalerio). The problem with the instruction is Dalerio never held
deceit is a substitute for force under section 207, subdivision (a).
At the outset, Dalerio acknowledged the “[d]efendant … deceived a nine-year-old
child into voluntarily accompanying him and then physically escorted the child a
substantial distance before attempting to kill her.” (Dalerio, supra, 144 Cal.App.4th at
p. 777, emphasis added.) The defendant confessed “he took her ‘up into the woods ... and
then slamm[ed] her down ….’ ” (Id. at p. 779.) The victim, however, never testified the
defendant used any force. (Id. at pp. 777-778.) The defendant was convicted of general
kidnapping by force (§ 207, subd. (a)). (Id. at p. 779.)
The issue in Dalerio was not whether the evidence was sufficient to prove
kidnapping. Rather the issue was whether the victim’s testimony satisfied the corpus
delicti rule. (Dalerio, supra, 144 Cal.App.4th at p. 781 [“Defendant argue[d] there was
no proof, independent of his statement, that a kidnapping occurred because, according to
the victim, she accompanied him into the wooded area of the park voluntarily.”].) That
rule “ ‘requires corroboration of the defendant’s extrajudicial utterances insofar as they
indicate a crime was committed, and forces the People to supply, as part of their burden
of proof in every criminal prosecution, some evidence of the corpus delicti aside from, or
in addition to, such statements.’ ” (People v. Krebs (2019)
8 Cal.5th 265
, 317 (Krebs).)
6.
The Dalerio court simply held the corpus delicti rule was satisfied. (Dalerio,
supra, 144 Cal.App.4th at p. 783.) In so holding, the court acknowledged the facts did
not present “a situation where an adult engages in a deception to persuade a child to meet
him later in a secluded spot and commits a crime when the victim appears. Section 207,
subdivision (b), proscribes the movement of a child under the age of 14 procured by
deception alone, but only when that deception is for the purpose of committing any act
defined in section 288.” (Id. at pp. 782-783.)
The Dalerio holding is correct because “ ‘[t[he amount of independent proof of a
crime required [to satisfy the corpus delicti rule] is quite small.’ [Citation.] The
prosecution need not adduce ‘independent evidence of every physical act constituting an
element of an offense.’ [Citation.] Instead, it need only make ‘some indication that the
charged crime actually happened,’ so as to ensure ‘that the accused is not admitting to a
crime that never occurred.’ ” (Krebs, supra, 8 Cal.5th at p. 317.) Thus, even though the
victim never testified to physical force, her testimony was sufficient to corroborate the
defendant’s confession he did in fact utilize physical force.
Dalerio relied on People v. Oliver (1961)
55 Cal.2d 761
(Oliver) and In re
Michele D. (2002)
29 Cal.4th 600
(Michele D.). Those cases recognized “the quantum of
force … required to kidnap an unresisting infant or child is simply the amount of physical
force required to take and carry the child away a substantial distance for an illegal
purpose or with an illegal intent.” (Michele D.,
supra, at p. 603
.) But they “did not
create a new or different crime of kidnapping ….” (People v. Westerfield (2019)
6 Cal.5th 632
, 715 (Westerfield).) Nor did they eliminate the force requirement.8
8 In Michele D., the Supreme Court “granted review to resolve the issue of what
quantum of force, if any, must be shown to sustain a conviction for kidnapping when the
victim is an unresisting infant or child.” (Michele D.,
supra,
29 Cal.4th at p. 603,
emphasis added.) The court did not hold force was unnecessary to prove. (Ibid.)
In a later footnote, the Court stated, “We note that our decision here affects only a
narrow class of cases in which an unresisting infant or small child is taken away without
7.
Indeed, in those cases each defendant acted with physical force. In Oliver, the
defendant led a two-year-old child “by the hand.” (Oliver, supra, 55 Cal.2d at p. 763.)
In Michele D., the defendant took a baby with whom she was acquainted from a stroller
and walked nearly one and one-half miles while holding the child. (Michele D.,
supra,
29 Cal.4th at pp. 603-604.)
The People cite several other cases to support the argument deception is an
alternative to force. These cases are unpersuasive because they involve actual force. In
People v. Jones, the defendant “abruptly took” a baby from a mother’s “arms,” put the
baby in a car, and drove away “holding [the baby] on his lap.” (People v. Jones (2003)
108 Cal.App.4th 455
, 460.) In Parnell v. Superior Court, the defendants infamously
tricked a child into entering a car, drove away while ignoring the child’s request to
contact his parents, and held him captive until he escaped more than seven years later.
(Parnell v. Superior Court (1981)
119 Cal.App.3d 392
, 398-400.) It would defy logic to
conclude these cases did not involve forcible kidnapping.9
any force or fear.” (Michele D,
supra, at p. 612, fn. 5
.) We view this footnote as dicta
because it is inconsistent with the Court’s actual holding “that the only force required to
kidnap an unresisting infant or child is the amount necessary to move the victim a
substantial distance.” (Id. at p. 612.) Perhaps the inconsistency is a matter of semantics.
On a related note, it is true “the force used against the victim
‘need not be physical.’ ” (Majors, supra, 33 Cal.4th at pp. 326-327.) This is so because
either force or fear is sufficient to satisfy section 207, subdivision (a): “The movement is
forcible where it is accomplished through the giving of orders which the victim feels
compelled to obey because he or she fears harm or injury from the accused and such
apprehension is not unreasonable under the circumstances.’ ” (Majors, at p. 327.)
This caveat is immaterial to this appeal because kidnapping by fear is not in issue.
Regardless, some force or fear is necessary, of which deception is neither. (See Majors,
supra,
33 Cal.4th at p. 327.)
9The People also cite People v. Rios (1986)
177 Cal.App.3d 445
. That case does
not involve kidnapping.
8.
This case is different. Each party agreed there was no evidence of physical force.
Our review of the record compels the same conclusion.
Because deception is not an alternative to force under section 207, subdivision (a),
CALCRIM No. 1201 is wrong and inapplicable in cases involving kidnapping “by
deception alone ….” (See Dalerio, supra, 144 Cal.App.4th at p. 782; Majors,
supra,
33 Cal.4th at p. 327 [asportation by fraud is not proscribed by § 207, subd. (a)].) Its use
in this case was error.
C. Prejudice
Initially, we note instructing the jury with the physical force theory of kidnapping
is not grounds for reversal “absent an affirmative indication in the record that the verdict
actually did rest on the inadequate ground.” (People v. Guiton (1993)
4 Cal.4th 1116
,
1129.) The lack of evidence proving physical force is an insufficiency a “jury is fully
equipped to detect ….”10 (Ibid.) The record reveals no reason to believe the jury relied
on physical force to return its verdict.
Next, we reiterate the charges against Nieto alleged he kidnapped “the victim in
violation of section 207 ….” Section 207, subdivision (b), states “[e]very person, who
for the purpose of committing any act defined in Section 288, hires, persuades, entices,
decoys, or seduces by false promises, misrepresentations, or the like, any child under the
age of 14 years to go out of this country, state, or county, or into another part of the same
county, is guilty of kidnapping.” It goes without saying section 207, subdivision (b), is
kidnapping within the meaning of section 207.
There are two subtle but significant differences between the CALCRIM No. 1201
kidnapping instruction given in this case and section 207, subdivision (b). One, the
instruction prohibits only deception or trickery rather than the more expansive conduct
10 On this basis we reject Nieto’s secondary argument that insufficient evidence of
physical force requires reversal of the kidnapping finding.
9.
criminalized by the statute. Two, the instruction applies to any criminal intent or purpose
instead of the sole lewd intent proscribed by the statute. These differences are immaterial
in light of the record. The remaining elements of kidnapping—age and substantial
movement—were correctly instructed upon. The erroneous instruction here adequately
explained these elements, even if inadvertently.11 We address the evidence for each
element in turn.
i. Deception
Kidnapping by deception or trickery is kidnapping under section 207,
subdivision (b). Deception and trickery undoubtedly fall under seducing movement “by
false promises, misrepresentations, or the like ….” (§ 207, subd. (b).) This part of the
instruction did not prejudice Nieto because it actually narrows the conduct constituting
kidnapping.
The jury must have based its verdict on movement caused by deception or
trickery, i.e, “false promises, misrepresentations, or the like ….” (§ 207, subd. (b).)
There was no evidence of physical force and each party openly agreed on that point.
There is no reasonable doubt the jury based its verdict on this theory, which is consistent
with both the given instructions and section 207, subdivision (b).
ii. Intent
In contrast to narrowing the conduct constituting kidnapping by deception, the
instruction expands the criminal intent necessary to commit crime. Only the intent to
commit a lewd act constitutes kidnapping under section 207, subdivision (b). An
innocent intent, or even an intent to kill, will not constitute kidnapping under this statute.
The only possible intent on this record, however, is the intent to commit a lewd act.12
11 The instruction the court should have given is CALCRIM No. 1200.
12 Lewd act was separately defined in the instructions for Counts 1 and 2.
10.
Nieto immediately assaulted the victim when the opportunity arose. The sexual
nature of his assault was undeniable. Both his and the victim’s pants were lowered as he
touched her “[p]rivate.” His blood was found inside her underwear, strongly suggesting
her underwear was also removed.
There was no innocence in Nieto’s actions. No other criminal intent was apparent.
The fact his intent was to commit a lewd act at the time he deceived the victim is beyond
reasonable dispute based upon the haste with which he committed actual lewd acts. (Cf.
Oliver, supra, 55 Cal.2d at p. 767 [“It seems highly improbable, if the defendant had the
violation of section 288 in mind while he was leading the child, that he would have
waited an hour to accomplish that purpose.”].)
While the jury here was permitted to find any contemporaneous criminal intent,
we are convinced beyond a reasonable doubt it based its verdict on a lewd intent. This
finding is consistent with both the instructions as given and section 207, subdivision (b).
iii. Age13
Section 207, subdivision (b), applies only if the victim is under 14 years old. The
victim here was six years old. Her age is not in dispute.
iv. Substantial Movement14
“[I]n determining whether the victim was moved for a ‘substantial distance’ ” we
“consider the ‘totality of the circumstances’ … including factors like ‘whether that
movement increased the risk of harm above that which existed prior to the asportation,
decreased the likelihood of detection, and increased both the danger inherent in a victim’s
foreseeable attempts to escape and the attacker’s enhanced opportunity to commit
additional crimes.’ ” (People v. Gomez (2018)
6 Cal.5th 243
, 304.) “[C]onsideration of
the ‘scope and nature’ of the movement or changed environment” of the victim (People v.
13 The jury was properly instructed with this element.
14 The jury was properly instructed with this element.
11.
Martinez (1999)
20 Cal.4th 225
, 236) and “whether the distance a victim was moved was
incidental to the commission of [an associated] crime” are also relevant factors. (Id. at
p. 237.)
The movement here was substantial because it enhanced Nieto’s opportunity to
commit crimes and escape detection. The victim was tricked into leaving the sanctuary
of her grandmother’s home and lured into the hands of a waiting child molester. She was
not vulnerable inside the home prior to the deceit. Once the victim was outside, Nieto
could commit any number of crimes and could escape detection by fleeing through a
nearby field.15 It is inconceivable this movement was not substantial.
Although the actual distance moved was not proven, “no minimum distance is
required to” prove kidnapping “so long as the movement is substantial ….” (People v.
Dominguez (2006)
39 Cal.4th 1141
, 1152.) “Where movement changes the victim’s
environment, it does not have to be great in distance to be substantial.” (People v.
Shadden (2001)
93 Cal.App.4th 164
, 169.) Such is the case here. Because the movement
was substantial, it was not incidental “even though it may have been solely to facilitate
the commission of the” crime.16 (In re Earley (1975)
14 Cal.3d 122
, 130.)
v. Conclusion
An argument similar to Nieto’s was dismissed by the Supreme Court in
Westerfield, supra,
6 Cal.5th 632
. There, the defendant argued “the evidence presented
at … trial was insufficient to support his conviction of kidnapping under section 207 …
because there was assertedly no evidence [the victim] was removed from her house by
force or fear.” (Id. at p. 712.)
15The case remained unsolved for nearly two years simply because Nieto fled the
crime scene. He concedes this factor supports a substantial movement finding.
Nieto’s tertiary argument the evidence is insufficient to prove substantial
16
movement is rejected.
12.
The evidence indicated the victim “was removed from her house … to [the
location] where her body was eventually found” “miles away ….” (Westerfield, supra, 6
Cal.5th at pp. 715, 718.) The Supreme Court found the jury “could have reasonably
inferred that defendant abducted [the victim] by either using force to quietly subdue her
or by threatening her with harm if she made any noise.” (Id. at p. 713.) The Court also
recognized “[k]idnapping is … a continuous offense.” (Id. at p. 714.)
In dicta, the Court added the evidence was also sufficient to prove kidnapping
under the “alternative standard” of force applicable to child victims “ ‘too young to give
[their] legal consent to being taken.’ ” (Westerfield, supra, 6 Cal.5th at pp. 714-715.)
The defendant complained affirming on this alternative ground was inappropriate because
it “was not alleged against him and the jury was not instructed” accordingly. (Id. at
p. 715.) More pointedly, he contended “a conviction cannot be affirmed on appeal on a
factual theory never tried before a jury.” (Ibid.)
The Court rejected the defendant’s contention. The Court stated the charges
“made clear that defendant was being charged with the kidnapping of a child.”
(Westerfield, supra, 6 Cal.5th at p. 715.) This was sufficient to put him on notice of any
kidnapping theory. (Id. at pp. 715-716; see People v. Abel (2012)
53 Cal.4th 891
, 937
[“an accusatory pleading charging murder need not specify the theory of murder upon
which the prosecution intends to rely.”].) The absence of an instruction explaining the
defendant acted with an unlawful intent was deemed harmless, in part, because “there
could have been no possible lawful purpose for surreptitiously removing [the victim]
from her home ….” (Id. at p. 717.)
Although the Westerfield analysis is undoubtedly dicta, it is well reasoned and
persuasive. The record here presents a more compelling case to affirm for two reasons.
First, just as in Westerfield, there is no due process concern. Nieto was charged
with kidnapping under section 207 which was sufficient to notify him of any kidnapping
13.
theory including section 207, subdivision (b).17 (Westerfield, supra, 6 Cal.5th at pp. 715-
716.) Second, in contrast to the incomplete instructions in Westerfield, the instructions
in this case were sufficient to explain each element of kidnapping by deception
(section 207, subd. (b)).18 For these reasons, and because the jury in fact found each
element of kidnapping by deception true, we conclude the instructional error here is
harmless beyond a reasonable doubt. (People v. Brooks (2017)
3 Cal.5th 1
, 69
[“ ‘Misdescription of an element of a charged offense is subject to harmless error analysis
and does not require reversal if the misdescription was harmless beyond a reasonable
doubt.’ ”].)
We emphasize our decision to find the instructional error here harmless is not
based on what we believe the jury would have found had it been properly instructed.
(See People v. Pearson (2013)
56 Cal.4th 393
, 463 [to find error harmless beyond a
reasonable doubt the “ ‘ “focus is on what the jury actually decided and whether the error
might have tainted its decision.” ’ ”].) Rather, the decision is based on our conclusion—
beyond a reasonable doubt—the jury rendered its verdict after finding true each element
of section 207, subdivision (b).
In other words, the error in this case—equating deception with physical force—did
not contribute to the verdict. Deceiving a child under age 14 into moving a substantial
distance while intending to commit a lewd act is kidnapping. The jury here found those
facts true and those findings are consistent with the charges and the verdict.19
17Notably, Nieto not only had the opportunity to defend against kidnapping by
deception, he actually did so.
18 As discussed above, the instructions were adequate and complete but not
perfect.
19As mentioned, the charges alleged Nieto “kidnapped the victim in violation of
section 207 ….” The actual verdict reads the jury found “it to be true the defendant,
Eddie Nieto, did kidnap the victim within the meaning of Penal Code 207 ….”
14.
Nonetheless, we disapprove use of CALCRIM No. 1201 in cases involving
kidnapping by deception alone. That instruction is meant to explain kidnapping by
physical force (section 207, subd. (a)) when the victim is incapable of consent.
Kidnapping by deception alone is not kidnapping by physical force.20 (Majors, supra,
33 Cal.4th at p. 327; see Michele D., supra, 29 Cal.4th at p. 603 [some force is necessary
to kidnap child by force]; Dalerio, supra, 144 Cal.App.4th at p. 782.)
DISPOSITION
The judgment is affirmed.
SNAUFFER, J.
WE CONCUR:
SMITH, Acting P.J.
DE SANTOS, J.
Neither the charges nor the verdict specified a kidnapping theory. Had either the
charges or verdict specified section 207, subdivision (a), our prejudice analysis would
differ. The written jury instructions did reference section 207, subdivision (a), but, in our
view, that reference is irrelevant.
20 “Of course, it goes without saying that asportation may be accomplished by
means that are both fraudulent and involve force or fear.” (Majors, supra, 33 Cal.4th at
p. 328.) In those situations, CALCRIM No. 1201 should carefully explain deception
itself is insufficient to prove general kidnapping (§ 207, subd. (a)).
15. |
4,639,353 | 2020-12-03 20:08:49.236091+00 | null | http://www.courts.state.ny.us/reporter/3dseries/2020/2020_07275.htm | Harrington v Azogues Corp. (2020 NY Slip Op 07275)
Harrington v Azogues Corp.
2020 NY Slip Op 07275
Decided on December 03, 2020
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided and Entered: December 03, 2020
Before: Renwick, J.P., Manzanet-Daniels, Mazzarelli, Singh, Scarpulla, JJ.
Index No. 152830/18 Appeal No. 12529 Case No. 2020-02084
[*1]John Harrington et al., Plaintiffs,
v
Azogues Corp., Doing Business as Via Italia Restaurant, Defendant-Respondent, 77 NY@ 46 St., LLC, et al., Defendants-Appellants.
Smith Mazure, P.C., New York (Louise M. Cherkis of counsel), for appellants.
Clausen Miller, P.C., New York (Don R. Sampen of the bar of the State of Illinois, admitted pro hac vice, and Djordje Caran of counsel), for respondent.
Order, Supreme Court, New York County (Louis L. Nock, J.), entered March 6, 2020, which denied defendants 77 NY@ 46 St., LLC and Management by 77, LLC's (together, 77 NY) motion for summary judgment dismissing the complaint and cross claims against them, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment accordingly.
Plaintiff was injured when he fell through open cellar doors in the sidewalk in front of premises owned and managed by 77 NY. It is undisputed that an employee of defendant [*2]Azogues Corp., the first-floor tenant, had opened the cellar doors from the basement in violation of the usual procedure of opening the doors from the sidewalk to ensure the safety of pedestrians. Indeed, plaintiff did not oppose 77 NY's motion with respect to the dismissal of the complaint as against it, and the motion should be granted on that ground.
For similar reasons, the cross claims against 77 NY should also be dismissed because the record demonstrates that the sole proximate cause of the accident was Azogues' employee's conduct (see Rivera v City of New York, 11 NY2d 856, 857 [1962]; Dillard v New York City Hous. Auth., 112 AD3d 504, 505 [1st Dept 2013]; see e.g. Baez v Barnard Coll., 71 AD3d 585, 586 [1st Dept 2010]; Almanzar v Picasso's Clothing, 281 AD2d 341 [1st Dept 2001]). Contrary to Azogues' contentions, liability may not be imposed on 77 NY based on a failure to provide safeguards to prevent injury, such as warning lights or signals (see e.g. Brown v Weinreb, 183 AD2d 562, 563 [1st Dept 1992]). Nor is Administrative Code § 7-210 is applicable, because there is no evidence that the condition of the sidewalk was a proximate cause of the accident. THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: December 3, 2020 |
4,639,354 | 2020-12-03 20:08:49.538296+00 | null | http://www.courts.state.ny.us/reporter/3dseries/2020/2020_07274.htm | Guity v 400 Great Neck Rd. Realty, LLC (2020 NY Slip Op 07274)
Guity v 400 Great Neck Rd. Realty, LLC
2020 NY Slip Op 07274
Decided on December 03, 2020
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided and Entered: December 03, 2020
Before: Friedman, J.P., Kapnick, Gesmer, Kern, Shulman, JJ.
Index No. 21587/16E Appeal No. 12547 Case No. 2020-01778
[*1]Marco Guity, Plaintiff-Respondent,
v
400 Great Neck Road Realty, LLC, Defendant, Nicolia's LLC, Defendant-Appellant. [And a Third-Party Action.]
Fabiani Cohen & Hall, LLP, New York (Nicole Galletta of counsel), for appellant.
The Platta Law Firm, PLLC, New York (Brian J. Vannella of counsel), for respondent.
Order, Supreme Court, Bronx County (Lucindo Suarez, J.), entered October 21, 2019, which granted plaintiff's motion for partial summary judgment on the issue of liability on his Labor Law § 240(1) claim against defendant Nicolia's LLC, unanimously affirmed, without costs.
Plaintiff made a prima facie showing that he was injured while performing demolition work at defendant's premises, when he fell through a partially collapsed roof, and that he was not provided with proper safety equipment to protect him against the elevation-related risk (see [*2]Mihelis v i.park Lake Success, LLC, 56 AD3d 355 [1st Dept 2008]; Ortiz v SFDS Dev., 274 AD2d 341 [1st Dept 2000]). In opposition, defendant failed to raise a triable issue of fact. The unsigned, unverified letter relied upon by defendant, which is purported to set forth a contradictory account of how the accident occurred, is not admissible, and, in any event, fails to raise a triable issue of fact (see Taylor v One Bryant Park, LLC, 94 AD3d 415 [1st Dept 2012]).
We have considered defendant's remaining contentions and find them unavailing.THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: December 3, 2020 |
4,639,355 | 2020-12-03 20:08:49.750704+00 | null | http://www.courts.state.ny.us/reporter/3dseries/2020/2020_07273.htm | Gibraltar Contr., Inc. v P.F. Northeast Brokerage, Inc. (2020 NY Slip Op 07273)
Gibraltar Contr., Inc. v P.F. Northeast Brokerage, Inc.
2020 NY Slip Op 07273
Decided on December 03, 2020
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided and Entered: December 03, 2020
Before: Renwick, J.P., Manzanet-Daniels, Mazzarelli, Singh, Scarpulla, JJ.
Index No. 25127/18 Appeal No. 12521 Case No. 2020-03012
[*1]Gibraltar Contracting, Inc., Plaintiff-Respondent,
v
P.F. Northeast Brokerage, Inc., Doing Business as PF Northeast Brokerage, Inc., Defendant-Appellant.
Sullivan & Klein, LLP, New York (Frederick M. Klein of counsel), for appellant.
Law Office of John J. Janiec, New York (John J. Janiec of counsel), for respondent.
Order, Supreme Court, Bronx County (Norma Ruiz, J.), entered July 10, 2020, which denied defendant insurance broker's motion for summary judgment dismissing the complaint, unanimously affirmed, with costs.
To set forth a case for negligence or breach of contract against an insurance broker, a plaintiff must establish that a specific request was made to the broker for the coverage that was not provided in the policy (American Bldg. Supply Corp. v Petrocelli Group, Inc., 19 NY3d 730, 735 [2012]). Issues of fact are presented by the parties' conflicting testimony as to their [*2]expectations with respect to obtaining insurance coverage, the contents of the parties' October 14, 2015 recorded telephone conversation, in which plaintiff sought clarity that the heights limitation constituted a limitation on exterior work, and the exclusion contained in the insurance proposal, which was not the full exclusion. The policies, which did contain the full exclusion precluding the use of any scaffold, were not forwarded to plaintiff until four months after renewal. While the failure to read the policy may provide a basis for comparative negligence (id. at 737), the facts of this case preclude summary judgment.THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: December 3, 2020 |
4,639,356 | 2020-12-03 20:08:50.008412+00 | null | http://www.courts.state.ny.us/reporter/3dseries/2020/2020_07270.htm | Dellino v Puello (2020 NY Slip Op 07270)
Dellino v Puello
2020 NY Slip Op 07270
Decided on December 03, 2020
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided and Entered: December 03, 2020
Before: Friedman, J.P., Kapnick, Gesmer, Kern, Shulman, JJ.
Index No. 25804/16E Appeal No. 12543 Case No. 2019-5777
[*1]Yanirys Dellino, Plaintiff-Appellant,
v
Christian Puello et al., Defendants-Respondents.
Andrew Park, PC, New York (Andrew Park of counsel), for appellant.
Landman Corsi Ballaine & Ford P.C., New York (Aryeh L. Roskies of counsel), for respondents.
Order, Supreme Court, Bronx County (John R. Higgitt, J.), entered July 26, 2019, which granted defendants' motion for summary judgment dismissing the complaint based on plaintiff's inability to demonstrate that she suffered a serious injury within the meaning of Insurance Law § 5102(d), unanimously affirmed, without costs.
Defendants satisfied their prima facie burden by submitting the reports of their neurologist and orthopedist, who found only slight limitations in plaintiff's right knee, and opined that plaintiff's examination was objectively normal with no objective evidence of any deficits, and that plaintiff's claimed injury was not causally related to the subject accident (see [*2]Stovall v New York City Tr. Auth., 181 AD3d 486 [1st Dept 2020]; Bianchi v Mason, 179 AD3d 567 [1st Dept 2020]). Defendants also relied on plaintiff's own medical records, which showed that within a week after the subject accident plaintiff sought treatment from a doctor for various other injuries allegedly sustained in a prior accident, but made no complaints concerning her right knee, and that another doctor treating her in connection with the prior injuries found her right knee had no signs of injury and normal range of motion about three weeks after the accident (see Alvarez v NYLL Mgt. Ltd., 120 AD3d 1043, 1044 [1st Dept 2014], affd 24 NY3d 1191 [2015]).
In opposition, plaintiff failed to raise an issue of fact. Her expert failed to reconcile his findings of restricted range of motion four months after the subject accident with the earlier finding of full range of motion by plaintiff's emergency pain physician three days after the accident (see Jenkins v Murtagh, 150 AD3d 482, 483 [1st Dept 2017]; Booth v Milstein, 146 AD3d 652 [1st Dept 2017]). The lack of any evidence of contemporaneous treatment of her right knee also undermines plaintiff's claim that she sustained a causally related injury (see Rosa v Mejia, 95 AD3d 402 [1st Dept 2012]).
Defendants are entitled to dismissal of the 90/180-day claim in the absence of a causal connection between plaintiff's right knee condition and the subject accident (see Diakite v PSAJA Corp., 173 AD3d 535, 536 [1st Dept 2019]). Furthermore, according to plaintiff's testimony, she was confined to home for only three days after the accident (see Tejada v LKQ Hunts Point Parts, 166 AD3d 436, 437-438 [1st Dept 2018]).THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: December 3, 2020 |
4,639,357 | 2020-12-03 20:08:50.24648+00 | null | http://www.courts.state.ny.us/reporter/3dseries/2020/2020_07269.htm | Delgaudio v Townhouse Co. LLC (2020 NY Slip Op 07269)
Delgaudio v Townhouse Co. LLC
2020 NY Slip Op 07269
Decided on December 03, 2020
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided and Entered: December 03, 2020
Before: Renwick, J.P., Manzanet-Daniels, Mazzarelli, Singh, Scarpulla, JJ.
Index No. 160455/13 Appeal No. 12523-12524 Case No. 2020-01734, 2020-01735
[*1]Anthony Delgaudio, Plaintiff-Respondent,
v
Townhouse Company LLC et al., Defendants-Respondents, The City of New York et al., Defendants, City Cinemas LLC, Defendant-Appellant.
Townhouse Company LLC et al., Third-Party Plaintiffs-Respondents,
v
City Cinemas LLC, Third-Party Defendant-Appellant.
Townhouse Company LLC et al., Fourth-Party Plaintiffs-Respondents,
v
Arista Air Conditioning Corp., Fourth-Party Defendant-Respondent.
Melito & Adolfsen P.C., New York (Steven I. Lewbel of counsel), for appellant.
Cozen O'Connor, New York (Amanda L. Nelson of counsel), for Townhouse Company LLC, Solow Realty & Development Co. LLC and Beekman Theater Company LLC, respondents.
Riker Danzig Scherer Hyland & Perretti, LLP, New York (Peter M. Perkowski Jr. of counsel), for Arista Air Conditioning Corp., respondent.
[*2]
Order, Supreme Court, New York County (Julio Rodriguez, III, J.), entered August 26, 2019, which, inter alia, granted the motion of defendant/fourth-party defendant Arista Air Conditioning Corp. (Arista) for summary judgment dismissing defendant/third-party defendant City Cinemas LLC's cross claim for contribution against it, unanimously affirmed, with costs. Order, same court and Justice, entered August 26, 2019, which, inter alia, denied City Cinemas' motion for conditional summary judgment on its contractual indemnification cross claims and counterclaims against defendants/third-party plaintiffs/fourth-party plaintiffs Townhouse Company, LLC and Solow Realty & Development Co. LLC and for summary judgment declaring Townhouse and Solow are required to reimburse it for defense costs, unanimously affirmed, with costs.
Plaintiff commenced this action to recover for personal injuries he sustained while working in a mechanical room of a building owned and managed, respectively, by Townhouse and Solow, when he slipped on garbage or debris on the floor, causing him to fall and his hand to become caught in the exposed and operating belts and pulleys of an air conditioning unit. City Cinemas leased from Townhouse the Beekman Theater located in the building's ground floor and a lower level and had contracted with Arista to maintain and service the air conditioning units located in the room, which serve the theater.
City Cinemas' contention that an issue of fact exists as to whether Arista failed to replace the fan belt cover on the air conditioning unit when it last serviced the unit prior to plaintiff's accident more than three months earlier, is unavailing. Arista's vice president testified that when a service is completed, fan belt covers are always reattached, which "is not something that could go unnoticed." Even if the testimony of Solow's handyman was unclear as to whether he recalled the cover being in place specifically on the day before plaintiff's accident and whether he always makes a note in his daily inspection log if it was not in place, he testified that he never noticed the cover missing prior to the accident and the daily logs never noted it was missing in the 13 days leading up to plaintiff's accident, even though it "is not something that could go unnoticed." Contrary to City Cinemas' further contention, the mere existence of a second set of daily inspection logs does not create an issue of fact or credibility where it fails to address the contents of those logs.
Assuming City Cinemas pleaded a cross claim or counterclaim against Townhouse and Solow for contractual indemnification, Supreme Court also correctly concluded it was not entitled to conditional summary judgment on such a cross claim or counterclaim. City Cinemas' lease contained reciprocal indemnification obligations whereby City Cinemas, on one hand, and Townhouse and Solow, on the other, were required to indemnify the other against "liability, damages or expenses arising from injury or death . . . as a result of any act or omission of" the other or the other's "agents or employees." Because it has not been determined that plaintiff's injuries resulted from Townhouse's or Solow's acts or omissions, City Cinema is not entitled to conditional contractual indemnification against them (see Langner v Primary Home Care Servs., Inc., 83 AD3d 1007, 1010 [2d Dept 2011]).THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: December 3, 2020 |
4,639,358 | 2020-12-03 20:08:50.475309+00 | null | http://www.courts.state.ny.us/reporter/3dseries/2020/2020_07268.htm | Ciborowski v 228 Thompson Realty, LLC (2020 NY Slip Op 07268)
Ciborowski v 228 Thompson Realty, LLC
2020 NY Slip Op 07268
Decided on December 03, 2020
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided and Entered: December 03, 2020
Before: Friedman, J.P., Kapnick, Gesmer, Kern, Shulman, JJ.
Index No. 152844/15 Appeal No. 12557 Case No. 2020-01670
[*1]Tomasz Ciborowski, Plaintiff-Appellant,
v
228 Thompson Realty, LLC, Defendant-Respondent.
Haworth Barber & Gerstman, LLC, New York (Tara Fappiano of counsel), for appellant.
The Perecman Firm, P.L.L.C., New York (Peter D. Rigelhaupt of counsel), for respondent.
Order, Supreme Court, New York County (David B. Cohen, J.), entered February 7, 2020, which, to the extent appealed from, granted plaintiff's motion for summary judgment on his Labor Law § 240(1) claim, unanimously affirmed, without costs.
Plaintiff established prima facie a violation of Labor Law § 240(1) and an injury proximately caused by that violation by testifying that the ladder on which he was standing to paint a wall wobbled and caused him to lose his balance and fall (Ocana v Quasar Realty Partners L.P., 137 AD3d 566 [1st Dept 2016], lv dismissed 27 NY3d 1078 [2016]). In opposition, defendant failed to raise an issue of fact as to whether plaintiff slipped or whether his [*2]own actions caused the ladder to move, as there is no evidentiary
basis for these contentions (see Ortiz v Burke Ave. Realty, Inc., 126 AD3d 577 [1st Dept 2015]). Moreover, the opinion by defendant's expert, who never examined the ladder, was unsupported and speculative (see Merino v Continental Towers Condominium, 159 AD3d 471, 472-473 [1st Dept 2018]).
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: December 3, 2020 |
4,639,359 | 2020-12-03 20:08:50.699583+00 | null | http://www.courts.state.ny.us/reporter/3dseries/2020/2020_07267.htm | Admiral Indem. Co. v Johnson (2020 NY Slip Op 07267)
Admiral Indem. Co. v Johnson
2020 NY Slip Op 07267
Decided on December 03, 2020
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided and Entered: December 03, 2020
Before: Friedman, J.P., Kapnick, Gesmer, Kern, Shulman, JJ.
Index No. 159548/16 Appeal No. 12560N Case No. 2020-02616
[*1]Admiral Indemnity Co., as Subrogee of Lenox Condominium, Plaintiff-Respondent,
v
Timothy Johnson, Defendant-Appellant.
Sweetbaum & Sweetbaum, Lake Success (Joel A. Sweetbaum of counsel), for appellant.
Wenig & Wenig, PLLC, New York (Alan Wenig of counsel), for respondent.
Order, Supreme Court, New York County (Gerald Lebovits, J.), entered April 21, 2020, which denied defendant's motion for leave to amend the answer and, upon granting leave, dismiss the complaint pursuant to CPLR 3211, or for summary judgment dismissing the complaint, unanimously reversed, on the law, with costs, and the motion to dismiss granted. The Clerk is directed to enter judgment accordingly.
Plaintiff, as subrogee of the condominium association, seeks reimbursement for its payment to the association, pursuant to an insurance policy, for property damage that plaintiff [*2]alleges resulted from a fire emanating from the unit owned by defendant. However, the insurance policy provides, "We [plaintiff] waive our rights to recover payment from any unit-owner of the condominium that is shown in the Declarations." The condominium association, of which defendant was a unit holder, is listed in the declarations. Thus, the policy unambiguously waives plaintiff's subrogation rights with respect to a subrogation claim against defendant(see Allstate Indem. Co. v Virfa Holdings, LLC, 124 AD3d 528 [1st Dept 2015]; see also Payson v 50 Sutton Place S. Owners, Inc., 107 AD3d 506 [1st Dept 2013]).
We have considered plaintiff's other arguments and find them unavailing.THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: December 3, 2020 |
4,639,360 | 2020-12-03 20:08:50.929045+00 | null | http://www.courts.state.ny.us/reporter/3dseries/2020/2020_07266.htm | A.A. v New York City Health & Hosps. Corp. (Jacobi Hosp. Ctr.) (2020 NY Slip Op 07266)
A.A. v New York City Health & Hosps. Corp. (Jacobi Hosp. Ctr.)
2020 NY Slip Op 07266
Decided on December 03, 2020
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided and Entered: December 03, 2020
Before: Renwick, J.P., Manzanet-Daniels, Mazzarelli, Singh, Scarpulla, JJ.
Index No. 350565/08 Appeal No. 12538N Case No. 2018-4334
[*1]A.A., an Infant, by His Mother and Natural Guardian, Rosemary C., Plaintiff-Appellant,
v
New York City Health and Hospitals Corporation (Jacobi Hospital Center), Defendant-Respondent.
The Fitzgerald Law Firm, P.C., Yonkers (John M. Daly of counsel), for appellant.
James E. Johnson, Corporation Counsel, New York (Susan Paulson of counsel), for respondent.
Order, Supreme Court, Bronx County (Lewis J. Lubell, J.), entered on or about April 23, 2018, which, to the extent appealed from as limited by the briefs, granted defendant's motion to renew its motion to dismiss the complaint, and upon renewal, granted the motion and dismissed the complaint, unanimously affirmed, without costs.
Supreme Court providently exercised its discretion in granting defendant's timely motion [*2]to renew, and upon renewal, granting its motion and dismissing the complaint, because Argudo v New York City Health & Hosps. Corp. (81 AD3d 575, 576-577 [2d Dept 2011]) reflects a change in the law that warranted reexamination of its arguments as to whether the court had the authority to again grant plaintiff leave to serve a late notice of claim or to deem an untimely notice timely served nunc pro tunc after the statute of limitations had expired. Defendant established a reasonable justification as to why it did not draw the motion court's attention to Argudo on the prior motion given that it was rendered by the Second Department after the motion to dismiss was filed.
We find that Argudo is directly on-point, because there the plaintiffs sought and received leave to serve a late notice of claim but failed to effectuate service of a notice on defendant in compliance with the order granting them leave before the applicable statute of limitations expired (see Argudo, 81 AD3d at 576-577). As in Argudo, plaintiff here is asserting that the proposed notice of claim annexed as an exhibit to his leave application satisfied the condition precedent of filing a timely notice of claim (id.). We find that defendant is entitled to dismissal of the complaint for plaintiff's failure to comply with the notice of claim requirements, because it has shown that plaintiff never filed a notice of claim after being granted leave to do so before the statute of limitations expired (id.).
The proposed January 17, 2001 notice of claim annexed to plaintiff's leave application and the June 20, 2006 notice of claim were nullities, because they were untimely and served without leave of court (see Kellogg v Office of Chief Med. Examiner of City of N.Y., 24 AD3d 376, 380 [1st Dept 2005]; Armstrong v New York Convention Ctr. Operating Corp., 203 AD2d 170, 170-171 [1st Dept 1994]). That plaintiff served the summons and complaint within the statute of limitations is of no moment, because it was not actually served within 90 days after his medical malpractice claims arose (see Argudo, 81 AD3d at 576-577; Tarquinio v City of New York, 84 AD2d 265 [1st Dept 1982], affd on other grounds sub nom. Pierson v City of New York, 56 NY2d 950 [1982]).
Defendant should not be estopped from asserting a statute of limitations defense, because its denial in its March 14, 2001 answer that a notice of claim was served pursuant to an order placed plaintiff on notice that there was a problem with service before the statute of limitations expired (see Bender v New York City Health & Hosps. Corp., 38 NY2d 662, 668 [1976]; Young v New York City Health & Hosps. Corp., 147 AD3d 509, 509 [1st Dept 2017]). That defendant engaged in pretrial discovery does not constitute a waiver of the requirements regarding the time and manner of service of the notice of claim, nor does it preclude defendant from raising the untimeliness of the notice of claim after the statute of limitations lapsed (see Hall v City of New York, 1 AD3d 254, 256 [1st Dept 2003]). THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: December 3, 2020 |
4,639,361 | 2020-12-03 20:12:34.072499+00 | null | http://www.supremecourt.ohio.gov/rod/docs/pdf/4/2020/2020-Ohio-5528.pdf | [Cite as State v. Hansard, 2020-Ohio-5528.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
GALLIA COUNTY
STATE OF OHIO, :
Plaintiff-Appellee, : CASE NO. 19CA11
vs. :
DAVID S. HANSARD, : DECISION AND JUDGMENT ENTRY
Defendant-Appellant. :
_________________________________________________________________
APPEARANCES:
Patrick Clark, Columbus, Ohio for appellant.1
Jason Holdren, Gallia County Prosecuting Attorney, Gallipolis, Ohio, for appellee.
CRIMINAL APPEAL FROM COMMON PLEAS COURT
DATE JOURNALIZED: 11-25-20
ABELE, J.
{¶ 1} This is an appeal from a Gallia County Common Pleas Court judgment of conviction
and sentence. David Hansard, defendant below and appellant herein, was convicted of one count of
possession of cocaine and one count of trafficking in cocaine. Appellant assigns two errors for
review:
FIRST ASSIGNMENT OF ERROR:
“THE TRIAL COURT ERRED BY DENYING MR. HANSARD’S
ORIGINAL AND RENEWED MOTIONS TO SUPPRESS
EVIDENCE THAT WAS DISCOVERED FROM A PAT DOWN
THAT EXCEEDED THE SCOPE OF A VALID TERRY FRISK.
1
Different counsel represented appellant during the trial court proceedings.
GALLIA, 19CA11 2
FOURTH AND FOURTEENTH AMENDMENTS TO THE UNITED
STATES CONSTITUTION AND ARTICLE I, SECTION 14 OF THE
OHIO CONSTITUTION. TERRY V. OHIO,
392 U.S. 1
, 88 S.CT.
1868, 20 L.ED.2D 880 (1968); SUPPRESSION HR’G T.P. 61-88;
TRIAL T. P. 205-209.”
SECOND ASSIGNMENT OF ERROR:
“THE TRIAL COURT ERRED BY FINDING TROOPER
KUEHNE’S RACIALLY DISPARATE PATTERN OF ARRESTING
PEOPLE OF COLOR IRRELEVANT TO CREDIBILITY
DETERMINATIONS AT THE SUPPRESSION HEARING.
CRIM.R. 12(F); STATE V. GRAY, 306 KAN. 1298, 403 P.3D 1220
(20170; STATE V. FANNING, 1 OHIO ST.3D 19, 437 N.E.2D 583
(1982); OCTOBER 31, 2019 JUDGMENT ENTRY.”
{¶ 2} In August 2019, a Gallia County Grand Jury returned an indictment that charged
appellant with one count of possession of cocaine in violation of R.C. 2925.11(A) and one count of
trafficking in cocaine in violation of R.C. 2925.03(A)(2), both first-degree felonies. Subsequently,
appellant filed a motion to suppress evidence.
{¶ 3} At the suppression hearing, Ohio State Highway Patrol Trooper Drew Kuehne testified
that on July 23, 2019, he watched eastbound traffic on U.S. Route 35 from his marked cruiser. Soon
after dark, he observed a dark gray minivan that appeared to be speeding. As the van approached,
Kuehne noticed it cross the right fog line by one tire width, and the driver “cover[ed] the left side of
his face so I couldn’t see the side of his face.” When Kuehne started to pursue the van, the driver
“hit his turn signal and exited the highway” to the rest area. The trooper followed the van into the
rest area parking lot and observed appellant standing and smoking near his vehicle. Kuehne then
returned to the highway and parked approximately one mile down the road and watched traffic.
{¶ 4} Shortly thereafter, Trooper Kuehne again observed appellant’s van, and, as the trooper
pulled out, the van again crossed the fog line. Kuehne ran appellant’s registration, observed him
GALLIA, 19CA11 3
slow to 61 miles per hour in a 70 mile per hour zone, and initiated a traffic stop. Appellant advised
Kuehne that he had rented the van, although he could not locate the rental agreement. Kuehne
observed that appellant was “extremely nervous, * * * his hands were shaking, his voice trembled. I
noticed that he was breathing heavily and he was starting to sweat on his forehead.”
{¶ 5} Trooper Kuehne testified that, after he explained to appellant the traffic violations and
asked about his destination, appellant told him he was traveling from Columbus, Ohio to Charleston,
West Virginia to visit family. When Kuehne asked if appellant had “ever been in any kind of
trouble before,” appellant mentioned a prior robbery, “and he eventually * * * got around to saying
he had been in trouble for drugs before,” specifically cocaine. Kuehne also explained that drugs
often come from Columbus to Charleston on U.S. Route 35 and that he had concern that appellant
may have had drugs in the van. Kuehne testified, however, that appellant told him that he did not
have anything illegal in his van and that Kuehne was welcome to search the vehicle.
{¶ 6} At that point, Trooper Kuehne asked appellant to exit the vehicle and as he watched
appellant walk toward the cruiser, Kuehne stated, “I was watching the * * * back of [appellant’s]
pants and I noticed that he appeared to be squeezing his legs together and he was walking a little bit
uncomfortable, like almost a wobble.” When they reached the front of the cruiser, Kuehne asked
for, and received, appellant’s consent to a pat-down frisk. “I explained to him when I got to the
lower half of his body that during a pat down I typically have to check between a male’s legs * * *,
so I wanted him to know that and not be uncomfortable for it.” Kuehne explained that between a
male’s legs is a place “that suspects typically hide weapons. In the waistband uh, the groin area, the
back of the pants, the waistband there in the back of the pants.” Kuehne also testified that, in his
mind, buttocks are no different from arm pits when it comes to weapons concealment.
GALLIA, 19CA11 4
{¶ 7} Trooper Kuehne also recalled appellant’s size as a “larger man,” approximately 300
pounds. “[D]uring that part of the pat down I went up between his legs in the rear of his pants and I
immediately felt what I believed to be a bag of contraband between his butt cheeks.” When asked
what he did after he felt the object, Kuehne stated:
[R]ight then I handcuffed him and um, he started to kind of turn away from me so I
made sure I got his arms, I handcuffed him. He kept turning towards me and asked
what was going on, what was going on? And uh, at that point, I advised him of
Miranda rights. Um, he uh, he nodded that he understood his rights and then he
asked me again what’s going on? And I said, you’ve got dope in your butt. So um,
Trooper Atwood I believe was in route to the scene at that time. I think he arrived on
scene right as I had gotten Mr. Hansard handcuffed. Um, he kept turning away from
me and he, it felt to me like he was trying to get his hands to the rear of his pants so
he could remove it himself um, which I was concerned that he might try to destroy it
or tamper with it.
{¶ 8} Trooper Kuehne continued, “I kind of just turned him to the side and I used my hand on
the outside of his pants and just manipulated the bag over to the side of his leg and then eventually
pulled to where it had fallen out of his pants onto the ground.” Kuehne stated that he did not place
his fingers between appellant’s buttocks nor come into contact with any body cavity, but held the
drugs through appellant’s pants and pulled it to the side, and then “I pulled basically his pants and
I’m guessing what were his underwear just outward so the bag would drop down out of his pants.”
{¶ 9} When the bag fell to the ground, appellant looked down and said, “it just a little bit of
coke um, to which [Trooper Kuehne] took to mean cocaine.” Kuehne testified that, after the drugs
fell from appellant’s pant leg, appellant still appeared to have an odd stance, and Kuehne was
“concerned that he might have more contraband,” so he started to repeat the same process to search
“the outside of his pants.” Kuehne recalled that appellant then started to pull his pants down, but
Kuehne told him to “pull his pants back up and then that was the end of the search.” The
GALLIA, 19CA11 5
prosecution also played the cruiser camera video of the traffic stop.
{¶ 10} On cross-examination, Trooper Kuehne estimated that he had made approximately
200 arrests during his career, and also acknowledged that probably over half of his felony arrests
were people of color. Kuehne testified that law enforcement seizes large amounts of drugs along
U.S. Route 35, a major artery used to transport drugs from Columbus, Ohio to West Virginia.
{¶ 11} Ohio State Highway Patrol Trooper Matthew Atwood also testified that he observed
Trooper Kuehne conduct appellant’s pat-down search in front of Kuehne’s cruiser. Atwood testified
that Kuehne did not put his hands into appellant’s pants and, although appellant pulled his pants
down after Kuehne retrieved the contraband, Kuehne pulled them back up. After hearing the
evidence adduced at the suppression hearing, the trial court overruled appellant’s motion to suppress.
{¶ 12} At appellant’s bench trial, Ohio State Highway Patrol Crime Lab Chemist Cualli
Hernandez testified that the plastic bag retrieved from appellant’s pants contained cocaine. Trooper
Kuehne and appellant also testified. Appellant stated that Kuehne patted him down before the
pat-down on the video and he alleged that Kuehne put “his hands between my buttocks” and
“grabbed my penis.” Appellant also claimed that Kuehne “broke [the] skin between my buttocks.”
Kuehne’s testimony, however, varied substantially from appellant’s account.
{¶ 13} At the conclusion of the bench trial, the trial court found appellant guilty of both
charges and ordered him to serve a ten-year prison term, plus 928 days for a post-release control
violation. This appeal followed.
I.
{¶ 14} In his first assignment of error, appellant asserts that the trial court erred by denying
his motions to suppress the evidence discovered during his pat-down search. Appellant argues that
GALLIA, 19CA11 6
the officer’s pat-down exceeded the scope of a valid Terry frisk.
{¶ 15} Generally, appellate review of a motion to suppress presents a mixed question of law
and fact. State v. Hawkins,
158 Ohio St. 3d 94
, 2019-Ohio-4210,
140 N.E.3d 577
, ¶ 16, citing State
v. Burnside,
100 Ohio St. 3d 152
, 2003-Ohio-5372,
797 N.E.2d 71
, ¶ 8. When ruling on a motion to
suppress evidence, a trial court assumes the role of trier of fact and is in the best position to resolve
questions of fact and to evaluate witness credibility. State v. Roberts,
110 Ohio St. 3d 71
,
2006-Ohio-3665,
850 N.E.2d 1168
, ¶ 100. Thus, a reviewing court must defer to a trial court’s
findings of fact if competent, credible evidence exists to support the trial court’s findings. Id.; State
v. Fanning,
1 Ohio St. 3d 19
, 20,
437 N.E.2d 583
(1982); State v. Debrossard, 4th Dist. Ross No.
13CA3395, 2015-Ohio-1054, ¶ 9. The reviewing court then must independently determine, without
deference to the trial court, whether the trial court properly applied the substantive law to the case’s
facts. See Roberts at ¶ 100;
Burnside, supra
, at ¶ 8.
{¶ 16} The Fourth Amendment to the United States Constitution and Article I, Section
Fourteen of the Ohio Constitution protect individuals from unreasonable searches and seizures.
State v. Emerson,
134 Ohio St. 3d 191
, 2012-Ohio-5047,
981 N.E.2d 787
, ¶ 15. The exclusionary
rule protects this constitutional guarantee and mandates the exclusion of evidence obtained from an
unreasonable search and seizure.
Id. {¶ 17} The
case sub judice involves an investigatory stop that must be supported by
reasonable, articulable suspicion that the driver has, is, or is about to commit a crime, including a
minor traffic violation. See State v. Petty, 2019-Ohio-4241,
134 N.E.3d 222
, ¶ 12 (4th Dist.); State
v. Shrewsbury, 4th Dist. Ross No. 13CA3402, 2014-Ohio-716, ¶ 15, citing United States v. Williams,
6th Cir. No. 12-5844,
2013 WL 18311773
(May 2, 2013). Thus, Trooper Kuehne’s observation of
GALLIA, 19CA11 7
the traffic violations justified the initial investigatory stop. See, e.g., State v. Brown, 4th Dist. Ross
No. 18CA3644, 2019-Ohio-1112, ¶ 15; State v. Mays,
119 Ohio St. 3d 406
, 2008-Ohio-4539,
894 N.E.2d 1204
, syllabus (“A traffic stop is constitutionally valid when a law-enforcement officer
witnesses a motorist drift over the lane markings in violation of R.C. 4511.33, even without further
evidence of erratic or unsafe driving.”) Further, appellant voluntarily agreed to his vehicle’s search,
and the officer had the authority to order appellant to exit the vehicle after the stop. See State v.
Fowler, 4th Dist. Ross No. 17CA3599, 2018-Ohio-241, ¶ 17, quoting State v. Alexander-Lindsey,
2016-Ohio-3033,
65 N.E.3d 129
, ¶ 14 (4th Dist.)(“‘Officers may order a driver and a passenger to
exit a vehicle, even absent any additional suspicion of a criminal violation’”). Therefore, although
we recognize that appellant does not contest the propriety of the initial investigatory stop or the
officer’s direction for him to exit the vehicle, the evidence reveals that the officer acted properly.
Brown, supra
, at ¶ 16.
{¶ 18} We now address appellant’s Terry pat-down search. In Terry v. Ohio,
392 U.S. 1
,
29-30,
88 S. Ct. 1868
,
20 L. Ed. 2d 889
(1968), the Supreme Court of the United States held that a
police officer may conduct a limited search for weapons in order to protect the officer and others
within the immediate vicinity.
[W]here a police officer observes unusual conduct which leads him reasonably to
conclude in light of his experience that criminal activity may be afoot and that the
persons with whom he is dealing may be armed and presently dangerous, where in the
course of investigating this behavior he identifies himself as a policeman and makes
reasonable inquiries, and where nothing in the initial stages of the encounter serves to
dispel his reasonable fear for his own or others’ safety, he is entitled for the protection
of himself and others in the area to conduct a carefully limited search of the outer
clothing of such persons in an attempt to discover weapons which might be used to
assault him.
Therefore, “[w]here a police officer, during an investigatory stop, has a reasonable suspicion that an
GALLIA, 19CA11 8
individual is armed based on the totality of the circumstances, the officer may initiate a protective
search for the safety of himself and others.” State v. Bobo,
37 Ohio St. 3d 177
,
524 N.E.2d 489
(1988), paragraph two of the syllabus;
Brown, supra
, at ¶ 18.
{¶ 19} In the case sub judice, appellant had been temporarily detained during a traffic stop,
exited his vehicle at Trooper Kuehne’s request, and consented to a vehicle search. Kuehne also
twice asked appellant for permission to pat him down for weapons, and appellant consented. “One
of the well-delineated exceptions to the general prohibition against a warrantless search occurs when
the person consents to the search.” State v. Nolen, 4th Dist. Scioto No. 19CA3873, 2020-Ohio-118,
¶ 30, quoting State v. Bloomfield, 4th Dist. Lawrence No. 14CA3, 2015-Ohio-1082, ¶ 29. “‘No
Fourth Amendment violation occurs when an individual voluntarily consents to a search.’” State v.
Clements, 4th Dist. Hocking No. 15CA19, 2016-Ohio-3201, ¶ 20, quoting State v. Carothers,
2015-Ohio-4569,
47 N.E.3d 483
, ¶ 25 (5th Dist.), citing United States v. Drayton,
536 U.S. 194
, 207,
122 S. Ct. 2105
,
153 L. Ed. 2d 242
(2002). Additionally, “the right to frisk is virtually automatic
when individuals are suspected of committing a crime, like drug trafficking, for which they are likely
to be armed.” State v. Hansard, 4th Dist. Scioto No. 07CA3177, 2008-Ohio-3349, ¶ 26, citing State
v. Williams,
51 Ohio St. 3d 58
,
554 N.E.2d 108
(1990) and United States v. Ceballos
(E.D.N.Y.1989),
719 F. Supp. 119
, 126 (“The nature of narcotics trafficking today reasonably
warrants the conclusion that a suspected drug dealer may be armed and dangerous.”).
{¶ 20} Although in the instant case appellant consented to a pat-down search, he argues that
Trooper Kuehne exceeded the permissible scope of a pat-down search. Terry permits an officer “to
conduct a carefully limited search of the outer clothing” of an individual “in an attempt to discover
weapons which might be used to assault him.”
Terry, 392 U.S. at 30
,
88 S. Ct. 1868
, 20 L.Ed.2d
GALLIA, 19CA11 9
889. “‘The purpose of this limited search is not to discover evidence of crime, but to allow the
officer to pursue [the officer’s] investigation without fear of violence * * *.’” Minnesota v.
Dickerson,
508 U.S. 366
, 373,
113 S. Ct. 2130
,
124 L. Ed. 2d 334
(1993), quoting Adams v. Williams,
407 U.S. 143
, 146,
92 S. Ct. 1921
,
32 L. Ed. 2d 612
(1972). Therefore, a Terry search must “be
confined in scope to an intrusion reasonably designed to discover guns, knives, clubs, or other
hidden instruments for the assault of the police officer.” Terry at 29,
88 S. Ct. 1858
,
20 L. Ed. 2d 889
. “If the protective search goes beyond what is necessary to determine if the suspect is armed, it
is no longer valid under Terry and its fruits will be suppressed.” Dickerson at 373.
{¶ 21} When Trooper Kuehne conducted appellant’s pat-down search, he discovered a
suspicious object in the rear of appellant’s pants. “Although Terry limits the scope of the search to
weapons, the discovery of other contraband during a Terry search will not necessarily preclude its
admissibility.”
Hansard, supra
, at ¶ 30. The United States Supreme Court adopted the plain-feel
doctrine in Minnesota v.
Dickerson, supra
, where the court held, “If a police officer lawfully pats
down a suspect’s outer clothing and feels an object whose contour or mass makes its identity
immediately apparent, there has been no invasion of the suspect’s privacy beyond that already
authorized by the officer’s search for weapons; if the object is contraband, its warrantless seizure
would be justified by the same practical considerations that inhere in the plain-view context.”
Dickerson at 375-376. “If the illegal nature of the suspicious object is not immediately apparent,
police are not permitted to continue touching, feeling, or manipulating the object to identify its
nature.”
Id. {¶ 22} This
court has previously approved the plain-feel doctrine’s application in a case with
a similar fact pattern. In State v.
Hansard, supra
, a police officer stopped a vehicle, removed the
GALLIA, 19CA11 10
defendant, patted him down for safety reasons, and, during the pat-down, felt a “large, rocky crunchy
substance” approximately the size of a tennis ball on the inside of Hansard’s thigh. The officer
raised Hansard’s shirt and discovered what appeared to be a white sock, tied to his belt loop, that
contained crack cocaine. Hansard at ¶ 6-9. Hansard moved to suppress the evidence and argued
the officer lacked probable cause to remove the object and to arrest him. The court determined,
however, that the nature of that object as contraband was immediately apparent. “In the context of
the plain feel exception to the warrant requirement, ‘immediately apparent’ is a term of art - it simply
means the officer has probable cause to associate the object with criminal activity.”
Id. at ¶ 31.
Moreover, whether the nature of the item is “immediately apparent” is a question of fact for the trial
court, which is in a much better position than this Court to gauge police credibility.” State v.
Kennedy, 4th Dist. Ross No. 99CA2472,
1999 WL 786322
(Sept.30, 1999), citing State v. Brandon,
119 Ohio App. 3d 594
, 596,
695 N.E.2d 1195
(9th Dist.1997); State v. Woods,
113 Ohio App. 3d 240
,
244,
680 N.E.2d 729
(2d Dist.1996); Hansard at ¶ 32.
{¶ 23} This court also considered a similar case in State v. Brown, 4th Dist. Ross No.
18CA3644, 2019-Ohio-1112. In Brown, a police officer stopped a vehicle, recognized the
defendant as a person involved in drug activity, and observed a K-9's positive alert for drugs in the
vehicle. The officer also noticed the defendant’s nervous manner and asked him to exit the vehicle
for a weapons pat-down. During the pat-down, the officer felt an “abnormality - a large bulge
between Brown’s legs - that, through his drug-interdiction experience, he immediately knew was
contraband, although he did not know the particular type of contraband.”
Id. at ¶ 7.
Although
during a weapons pat-down search an officer cannot squeeze or manipulate an object to determine
whether it is contraband, this court concluded that, once the officer felt and immediately recognized
GALLIA, 19CA11 11
the contraband, he could seize the object. Brown at ¶ 23; State v. Milhouse,
133 Ohio App. 3d 527
,
530,
728 N.E.2d 1123
(1st Dist.1999) (“If, during the course of a Terry pat-down search of a
subject’s clothing for weapons, ‘a police officer feels an object whose contour or mass makes its
incriminating character as contraband immediately apparent, and the officer has a lawful right of
access to the object, the officer is entitled to seize the object’ under the plain-feel doctrine”); see also
Dickerson, supra
, 508 U.S. at 375.
{¶ 24} In State v. Williams, 4th Dist. Ross No. 10CA3162, 2011-Ohio-763, an officer
conducted a vehicle stop and, after a positive drug alert, removed the defendant from his vehicle.
When the officer patted down the defendant, he “felt the presence of a small, round object between
Williams’ buttocks.”
Id. at ¶ 3.
This court concluded that, under the circumstances, it became
immediately apparent that the object discovered during the pat-down was contraband and, under the
plain-feel doctrine, probable cause existed for the search. Thus, the trial court overruled the motion
to suppress. Similarly, in the instant case the contraband became “immediately apparent” to
Trooper Kuehne.
{¶ 25} Appellant cites State v. Allen, 2d Dist. Montgomery No. 22663, 2009-Ohio-1280, in
support of his argument that Trooper Kuehne exceeded his authority in conducting the Terry
pat-down search. In Allen, officers responded to a dispatch about a rape at an apartment. After the
officers arrived, they discovered Allen inside the apartment and ordered him to the ground. Instead
of complying, Allen lifted his hands and asked, in a confrontational manner, “What the f**k’s going
on?” The officers then put Allen on the floor, placed his hands behind his back, and secured him
with handcuffs. One officer testified that he became concerned that Allen might be armed due to
the violent nature of rape.
Id. at ¶ 4-10.
Also, during the officer’s pat-down search for weapons, he
GALLIA, 19CA11 12
“felt a large wad of cash on the outside of Allen’s pockets and a rock of crack cocaine protruding
from Allen’s buttocks. [The officer] put on a rubber glove and retrieved the crack cocaine from
Allen.”
Id. at ¶ 10.
The Second District highlighted the officer’s testimony that he patted down the
exterior of Allen’s clothing and “denied searching between the cheeks of Allen’s buttocks.”
Id. at ¶ 31.
The court did note its concern over the intrusiveness of a search of the area between an
individual’s buttocks, but eventually concluded that the officer’s search did not rise to that level of
intrusiveness and, thus, did not exceed the permissible scope of a Terry pat-down search.
Id. at 45.
Here, we also do not believe that Trooper Kuehne’s pat-down search exceeded the permissible scope
of a Terry pat-down search.
{¶ 26} In the case sub judice, Trooper Kuehne stopped appellant for a traffic violation and
observed him as “extremely nervous, * * * his hands were shaking, his voice trembled, * * * he was
breathing heavily and he started to sweat.” When asked if he had ever been in trouble, appellant
said he had “been in trouble for drugs before,” including “prison time * * * for cocaine.” Appellant
also stated that he was traveling from Columbus, Ohio, to Charleston, West Virginia, which, Kuehne
testified, is a known drug trafficking artery. After Kuehne asked appellant if he had drugs in his
van, appellant consented to a vehicle search. When appellant exited his vehicle, Kuehne testified
that appellant squeezed his legs together and wobbled as he walked. As the trial court observed,
appellant also consented to a pat-down search. When Kuehne performed a pat-down between
appellant’s legs and felt a bag of contraband positioned near appellant’s buttocks, Kuehne
handcuffed appellant and advised him of his Miranda rights. From outside appellant’s clothing,
Kuehne moved the object in appellant’s pants and the contraband fell to the ground. The trial court
noted that Kuehne testified that “his fingers did not go between Defendant’s butt cheeks and that he
GALLIA, 19CA11 13
never put his hands inside the Defendant’s pants while conducting the pat down search. Further, the
Trooper testified that, upon inspection, the package did not have any feces, blood or any bodily
material on it.” Thus, the court determined that (1) appellant consented to the pat-down search, (2)
the plain-feel exception to the warrant requirement applied, and (3) the subsequent contraband
seizure did not violate appellant’s Fourth Amendment rights.
{¶ 27} Accordingly, based upon all of the foregoing reasons, we agree with the trial court’s
determination. We thus conclude that competent, credible evidence supports the trial court’s
findings and the trial court correctly applied the substantive law to facts. Thus, we overrule
appellant’s first assignment of error.
II.
{¶ 28} In his second assignment of error, appellant asserts that the trial court erred by finding
Trooper Kuehne’s alleged racially disparate pattern of arresting people of color irrelevant to
credibility determinations at the suppression hearing. In the case at bar, the trial court noted in its
entry that appellant “asked some questions during suppression that attempted to establish an
argument that race played a factor in Defendant’s stop and subsequent search.” The court, however,
cited State v. Dukes, 4th Dist. Scioto Nos. 16CA3745, 16CA3760, 2017-Ohio-7204, in which an
officer stopped the defendant for a traffic violation, and ultimately discovered drugs in the rented
vehicle’s door panel. As in the present case, Dukes argued that the traffic stop was racially
motivated.
Id. at ¶ 12.
This court observed that “A police officer may stop the driver of a vehicle
after observing a de minimis violation of traffic laws.” Dukes at ¶ 16, citing Debrossard, 4th Dist.
Ross. No. 13CA3395, 2015–Ohio–1054, ¶ 13; citing State v. Guseman, 4th Dist. Athens No.
08CA15, 2009–Ohio–952, ¶ 20; citing State v. Bowie, 4th Dist. Washington No. 01CA34,
GALLIA, 19CA11 14
2002–Ohio–3553, ¶ 8, 12, and 16; citing Whren v. United States,
517 U.S. 806
,
116 S. Ct. 1769
,
135 L. Ed. 2d 89
(1996)(subjective intentions play no role in ordinary, probable-cause Fourth Amendment
analysis). We further observed in Dukes that the Supreme Court of Ohio has stated: “Where a
police officer stops a vehicle based on probable cause that a traffic violation has occurred or was
occurring, the stop is not unreasonable under the Fourth Amendment to the United States
Constitution even if the officer had some ulterior motive for making the stop[.]” Dukes at ¶ 16,
citing Dayton v. Erickson,
76 Ohio St. 3d 3
,
655 N.E.2d 1091
(1996), syllabus. See also State v.
Johnson, 10th Dist. No. 16AP-689, 2017-Ohio-5527, ¶ 25.
{¶ 29} Courts have also generally rejected racial profiling as a basis for evidence suppression
when the evidence supports the reasonableness of the investigatory stop. Dukes at ¶ 17, citing State
v. Coleman, 3rd Dist. Hancock No. 5–13–15, 2014–Ohio–1483, ¶ 18 (rejecting argument that officer
stopped defendant because of his race and rejecting racial profiling as legal basis for evidence
suppression); citing State v. Chambers, 3rd Dist. Hancock No. 5–10–29, 2011–Ohio–1305, ¶ 22
(even if officer initiated traffic stop based upon defendant’s race, the fact does not affect the
reasonableness of the stop for Fourth Amendment purposes); see also United States v. Cousin,
448 Fed. Appx. 593
, 594 (6th Cir.2012) (explaining that United States v. Nichols,
512 F.3d 789
, 794–795
(6th Cir. 2008) precludes the application of the exclusionary rule for alleged racial profiling.); City of
Cleveland v. Oko, 2016–Ohio–7774,
73 N.E.3d 1122
, ¶ 20 (8th Dist.)( “[a]ll challenges to the
validity of a traffic stop are subject to the same Terry standard of review, even where the defendant
raises allegations of pretext.”); State v. Gartrell, 2014–Ohio–5203,
24 N.E.3d 680
, ¶ 68 (3rd
Dist.)(“[a]ny ulterior motives for the traffic stop are irrelevant to the determination of whether the
officers possessed a reasonable, articulable suspicion justifying the stop.”). Thus, in Dukes this
GALLIA, 19CA11 15
court concluded that, in light of the fact that a de minimis traffic violation provides a proper
justification for a traffic stop, the stop was not unreasonable under the Fourth Amendment, even if
the officer could have had some ulterior motive for the stop.
Id. at 19.
{¶ 30} In the case sub judice, the trial court determined that appellant’s race was not a factor
because proper justification existed for the investigatory stop. Moreover, appellant did not
challenge the propriety of the initial stop. Additionally, even if this court were to assume, for
purposes of argument, that Trooper Kuehne considered appellant’s race when he initiated the traffic
stop, that fact does not affect the reasonableness of the stop for Fourth Amendment purposes.
Dayton v.
Erikson, supra
, syllabus. However, to be sure, this court will, as should all courts,
condemn any law enforcement officer’s stop or action based solely upon a suspect’s race or ethnic
heritage. Obviously, the United States Constitution does not permit such action. However, we
again point out that in the case sub judice, Trooper Kuehne had sufficient justification for appellant’s
stop and subsequent search and did not violate the requirements of the Fourth Amendment. Thus,
we conclude that the trial court did not err in refusing to consider race as a factor in deciding
appellant’s motion to suppress.
{¶ 31} Accordingly, based upon the foregoing reasons, we overrule appellant’s second
assignment of error and affirm the trial court’s judgment.
JUDGMENT AFFIRMED.
GALLIA, 19CA11 16
JUDGMENT ENTRY
It is ordered that the judgment be affirmed and that appellee recover of appellant the 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 Gallia County
Common Pleas Court to carry this judgment into execution.
If a stay of execution of sentence and release upon bail has been previously granted by the
trial court or this court, it is temporarily continued for a period not to exceed sixty days upon the bail
previously posted. The purpose of a continued stay is to allow appellant to file with the Supreme
Court of Ohio an application for a stay during the pendency of the proceedings in that court. If a
stay is continued by this entry, it will terminate at the earlier of the expiration of the sixty-day period,
or the failure of the appellant to file a notice of appeal with the Supreme Court of Ohio in the
forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court
of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of
sixty days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of the Rules of
Appellate Procedure.
Smith, P.J. & Hess, J.: Concur in Judgment & Opinion
For the Court
BY:
Peter B. Abele, Judge
GALLIA, 19CA11 17
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time
period for further appeal commences from the date of filing with the clerk. |
4,639,362 | 2020-12-03 20:12:41.571921+00 | null | http://www.supremecourt.ohio.gov/rod/docs/pdf/5/2020/2020-Ohio-5530.pdf | [Cite as State v. Horner, 2020-Ohio-5530.]
COURT OF APPEALS
KNOX COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. W. Scott Gwin, P. J.
Plaintiff-Appellee Hon. John W. Wise, J.
Hon. Earle E. Wise, Jr., J.
-vs-
Case No. 20CA000012
WILLIAM E. HORNER
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common
Pleas, Case No. 20CR03-0059
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: December 2, 2020
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
CHARLES T. McCONVILLE JAMES S. SWEENEY
PROSECUTING ATTORNEY JAMES SWEENEY LAW, LLC
SARAH FELDCAMP 285 South Liberty Street
ASSISTANT PROSECUTOR Powell, Ohio 43065
117 East High Street, Suite 234
Mount Vernon, Ohio 43050
Knox County, Case No. 20CA000012 2
Wise, John, J.
{¶1} Appellant William E. Horner appeals his sentence from the Knox County
Court of Common Pleas after entering a plea of guilty to one count of Aggravated
Possession of Drugs, a felony in the second degree, in violation of R.C. 2925.11(A).
STANDARD OF REVIEW
{¶2} Appellant Horner’s appellate counsel has filed a brief pursuant to Anders v.
California,
386 U.S. 738
,
87 S. Ct. 1396
,
18 L. Ed. 2d 493
(1967). We informed Appellant
that his attorney had filed an Anders brief on his behalf and granted him until October
30, 2020, to file a pro se brief. Appellant has not filed a pro se brief.
{¶3} In Anders, the United States Supreme Court held if, after a conscientious
examination of the record, a defendant’s counsel concludes the case is wholly frivolous,
then he should so advise the court and request permission to withdraw. Anders at 744.
Counsel must accompany his request with a brief identifying anything in the record that
could arguably support his client’s appeal.
Id. Counsel also must:
(1) furnish his client
with a copy of the brief and request to withdraw; and, (2) allow his client sufficient time
to raise any matters that the client chooses.
Id. Once the defendant’s
counsel satisfies
these requirements, the appellate court must fully examine the proceedings below to
determine if any arguably meritorious issues exist. If the appellate court also determines
that the appeal is wholly frivolous, it may grant the counsel’s request to withdraw and
dismiss the appeal without violating constitutional requirements, or may proceed to a
decision on the merits if state law so requires.
Id. {¶4}
The relevant facts leading to this appeal are as follows.
Knox County, Case No. 20CA000012 3
FACTS AND PROCEDURAL HISTORY
{¶5} On April 22, 2020, Appellant pled guilty to one count of Aggravated
Possession of Drugs, a felony of the second degree, in violation of R.C. 2925.11(A).
Appellant waived a presentence investigation report, and the trial court proceeded
immediately to sentence Appellant. During the hearing, the trial court stated, “[i]t is
therefore the sentence of the Court that the defendant serve a mandatory indefinite term
of imprisonment of a minimum of two years to a maximum of 3.5 years.” T. at 20. In the
Sentencing Entry, the trial court stated, “[i]t is the sentence of the Court that the
Defendant serve an indefinite term prison term of a mandatory minimum term of
imprisonment of two (2) years and a maximum term of imprisonment of three (3) years
on Count One, pursuant to Ohio Revised Code Section 2929.144.” Sentencing Entry, P.
2.
POTENTIAL ASSIGNMENTS OF ERROR
{¶6} Counsel’s brief suggests one assignment of error as follows:
{¶7} “I. WHETHER THE TRIAL COURT ERRED WHEN SENTENCING THE
APPELLANT AS THERE IS A DISCREPANCY BETWEEN THE SENTENCE STATED
BY THE TRIAL COURT DURING THE SENTENCING HEARING AND THE SENTENCE
IN THE SENTENCING ENTRY.”
I.
{¶8} In his only potential Assignment of Error, Appellant suggests the trial court
may have erred as there is a discrepancy between the sentence stated at the sentencing
hearing and the sentence in the Sentencing Entry. We disagree.
Knox County, Case No. 20CA000012 4
{¶9} “A court of record speaks only through its journal, and not by oral
pronouncement. Pettit v. Glenmoor Country Club, Inc., 5th Dist. Stark No. 2012-CA-
00088, 2012-Ohio-5622, ¶17, citing Schenley v. Kauth,
160 Ohio St. 109
,
113 N.E.2d 625
(1953), paragraph one of the syllabus. “A trial court’s oral statements have no legal
force and effect unless and until incorporated into a journalized entry. Schenley at ¶17.
If a journalized order contradicts the trial court’s comments from the bench, the
journalized order controls.
Id. {¶10}
In State v. Young, 5th Dist. Fairfield No. 2019 CA 00037, 2020-Ohio-3194,
¶35-38, the trial court, during a sentencing hearing, sentenced the defendant on a
falsification charge and on an obstructing official business charge after stating the
sentences would be merged. However, the Final Judgment Entry only sentenced
defendant on the falsification charge for the correct number of days. Id at ¶39. This Court
held that the trial court’s Judgment Entry controls as defendant was only sentenced on
the falsification charge.
{¶11} In the case sub judice, the trial court noted at the sentencing hearing the
defendant will serve a mandatory minimum term of two years to a maximum of 3.5 years
in prison. However, the Sentencing Entry corrected the maximum amount. It said, “[i]t is
the sentence of the Court that the Defendant serve an indefinite term prison term of a
mandatory minimum term of imprisonment of two (2) years and a maximum term of
imprisonment of three (3) years…”. Sentencing Entry, P. 2.
{¶12} We find no merit in the proposed Assignment of Error, and it is hereby
overruled. Furthermore, after independently reviewing the record, we agree with
appellate counsel’s conclusion that no arguably meritorious claims exist upon which to
Knox County, Case No. 20CA000012 5
base an appeal. We therefore find the appeal to be wholly frivolous under Anders, grant
counsel’s request to withdraw, and affirm the judgment of the trial court.
{¶13} For the foregoing reasons, the judgment of the Court of Common Pleas of
Knox County, Ohio, is hereby affirmed.
By: Wise, John, J.
Gwin, P. J., and
Wise, Earle, J., concur.
JWW/br 1201 |
4,639,363 | 2020-12-03 20:12:41.95796+00 | null | http://www.supremecourt.ohio.gov/rod/docs/pdf/5/2020/2020-Ohio-5531.pdf | [Cite as In re C.Q., 2020-Ohio-5531.]
COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
IN THE MATTER OF: C.Q. JUDGES:
Hon. William B. Hoffman, P.J.
Hon. W. Scott Gwin, J.
Hon. John W. Wise, J.
Case No. 2020 CA 00012
O P I N IO N
CHARACTER OF PROCEEDINGS: Appeal from the Licking County Court of
Common Pleas, Juvenile Division, Case
No. A2019-0048
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: December 2, 2020
APPEARANCES:
For Appellee State of Ohio For Appellant C.Q.
WILLIAM C. HAYES ANDREW RUSS
Licking County Prosecutor 1000 Taylor Station Road, Suite G
Gahanna, Ohio 43230
PAULA M. SAWYERS
Assistant Prosecuting Attorney Guardian Ad Litem
20 S. Second Street, Fourth Floor
Newark, Ohio 43055 THOMAS J. ARCHER
85 North Third Street
Newark, Ohio 43055
Licking County, Case No. 2020 CA 00012 2
For Mother T. Q.
BONNIE VANGELOFF
6400 Emerald Parkway
Dublin, Ohio 43016
Licking County, Case No. 2020 CA 00012 3
Hoffman, P.J.
{¶1} Defendant-Appellant C.Q. appeals the judgment of the Licking County
Common Pleas Court, Juvenile Division, adjudicating him to be delinquent by reason of
rape (R.C. 2907.02(A)(2)) and committing him to the Ohio Department of Youth Services
for one year, with the commitment held in abeyance pending Appellant’s performance on
sex offender probation. Appellee is the state of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶2} On January 22, 2019, Appellant and the victim purchased food at White
Castle, then returned to Appellant’s house to eat and hang out in his bedroom. The
couple had been dating for a few months. They began kissing. Appellant tried to take the
victim’s clothes off. She told him to stop. Appellant then removed the victim’s pants and
threw them across the room. When she tried to retrieve her pants, he pulled her from the
loveseat to the floor. The victim was on the floor on her back, with Appellant on top of
her. Appellant began taking his own clothes off. Appellant put his fingers inside her
vagina. She believed he put his penis inside her. She repeatedly told Appellant to stop.
Appellant did not stop until she told Appellant her brother-in-law was there to pick her up.
She put on her pants to leave, and Appellant said, “I’m sorry for forcing you.”
{¶3} The victim reported the incident to her R.O.T.C. teacher. The victim was
interviewed by a social worker and Detective Steve Vanoy of the Newark Police
Department. Det. Vanoy suggested she contact Appellant via Facebook. Appellant had
previously messaged her, asking why she was not in school the day after the incident. In
the messages exchanged between the pair, Appellant apologized for his behavior.
Licking County, Case No. 2020 CA 00012 4
{¶4} A teacher at Newark High School noticed Appellant crying in class.
Appellant told the teacher he was with a girl “doing stuff,” and when she asked him to
stop, he did not stop. Tr. 147.
{¶5} On January 28, 2019, Det. Vanoy interviewed Appellant. The initial meeting
occurred in the assistant principal’s office at Newark High School. Det. Vanoy informed
Appellant of his Miranda rights. The detective asked Appellant if he understood his rights,
and Appellant responded, “Yes.” Tr. 15; State’s Exhibit A. Appellant was arrested and
taken to the police station.
{¶6} At the station, Appellant admitted he made a mistake. He stated he felt
sorry for the victim because what he had done to her affected her ability to attend school.
Appellant stated he hated himself for it, and feared his parents would hate him.
{¶7} Appellant told Det. Vanoy he had dated the victim or a month and a half.
Two or three times prior to the date in question, the couple engaged in some type of
sexual behavior. He stated the victim had touched his penis with her hands and her
mouth, and he had touched her breasts and vagina with his hands and mouth, all of which
was consensual.
{¶8} On the date of the offense, Appellant stated he began “messing” with the
victim. He stated the contact became more intimate than usual, and she told him to stop.
He stated he did not stop but kept going, with his penis getting closer to her vagina. He
admitted inserting two fingers in her vagina and thrusting them in and out, despite her
repeated requests to stop. He admitted he inserted the tip of his penis into her vagina.
He told the detective on one prior occasion, his penis had gone inside her, but they had
stopped. He did not know why she told him to stop on this occasion, but Appellant felt
Licking County, Case No. 2020 CA 00012 5
because she did not like it the other time, she decided to say something this time.
Appellant estimated the victim told him to stop five or six times, but he did not stop.
Appellant stated the victim was visibly upset, and he pulled her back to the floor despite
her attempts to get up. He finally stopped when she had to leave.
{¶9} Appellant told the detective the victim broke up with him by text. He showed
Det. Vanoy the Facebook messages they exchanged, in which Appellant told the victim
he was evil and hated himself because he felt he had forced himself on her.
{¶10} Appellant was charged with delinquency by reason of rape in violation of
R.C. 2907.02(A)(2). He moved to suppress his statement to the police on the basis his
Miranda rights were violated and his statement was not voluntary. Following an
evidentiary hearing, the trial court overruled the motion to suppress.
{¶11} The case proceeded to an adjudicatory hearing in the Licking County
Common Pleas Court, Juvenile Division. The court found Appellant delinquent by reason
of rape at the conclusion of the hearing. The matter was continued for disposition.
{¶12} After the dispositional hearing, the trial court committed Appellant to the
Department of Youth Services for one year, with the entire commitment held in abeyance
pending successful completion of sex offender probation. After considering the
psychological evaluation and risk assessment of Appellant which was completed prior to
the hearing, the trial court ordered Appellant to register as a Tier I Sex Offender.
{¶13} It is from the February 12, 2020 judgment of the trial court Appellant
prosecutes this appeal, assigning as error:
Licking County, Case No. 2020 CA 00012 6
I. THE JUVENILE COURT ERRED WHEN IT OVERRULED C.Q.’S
MOTION TO SUPPRESS, IN VIOLATION OF THE FIFTH AND
FOURTEENTH AMENDMENTS TO THE U.S. CONSTITUTION AND
ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION.
II. THE TRIAL COURT ERRED AS IT MISAPPLIED OHIO’S RAPE
SHIELD STATUTE IN NOT ALLOWING DEFENDANT’S TRIAL COUNSEL
TO CROSS EXAMINE THE ACCUSER ON ISSUES OF CONSENT AND
SEXUAL HISTORY AS BETWEEN THE DEFENDANT AND HIS
ACCUSER IN VIOLATION OF THE DEFENDANT’S RIGHT TO
CONFRONT HIS ACCUSER UNDER THE SIXTH AND FOURTEENTH
AMENDMENTS TO THE U.S. CONSTITUTION AND THE OHIO
CONSTITUTION, ARTICLE I, SECTION 10; EVID. R. 608(B); O.R.C.
2907.02(D),(E).
III. THE COURT’S FINDING OF DELINQUENCY OF RAPE WAS
NOT SUPPORTED BY SUFFICIENT EVIDENCE AS A MATTER OF LAW
AS THE STATE FAILED TO PROVE EVERY ELEMENT OF RAPE
BEYOND A REASONABLE DOUBT.
IV. THE JUVENILE COURT ERRED WHEN IT CLASSIFIED C.Q.
AS A TIER I JUVENILE SEX OFFENDER REGISTRANT, IN VIOLATION
OF C.Q.’S RIGHT TO DUE PROCESS.
Licking County, Case No. 2020 CA 00012 7
V. C.Q. WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL
WHEN COUNSEL FAILED TO RAISE A RULE 29 MOTION AT THE END
OF THE STATE’S CASE AND WHEN COUNSEL FAILED TO OBJECT TO
THE IMPROPER AND UNCONSTITUTIONAL CLASSIFICATION OF C.Q.
I.
{¶14} In his first assignment of error, Appellant argues the court erred in overruling
his motion to suppress his confession to police. He argues the statement was taken in
violation of Miranda v. Arizona,
384 U.S. 436
(1979).
{¶15} The Fifth Amendment to the United States Constitution guarantees no
person in a criminal case shall be compelled to be a witness against himself, and the
Sixth Amendment guarantees the accused shall have the assistance of counsel.
Miranda, 384 U.S. at 442
,
86 S. Ct. 1602
,
16 L. Ed. 2d 694
. The inherently coercive nature
of custodial interrogation heightens the risk a suspect will be denied the Fifth Amendment
privilege not to be compelled to incriminate himself because custodial interrogation can
“undermine the individual's will to resist and * * * compel him to speak where he would
not otherwise do so freely.” J.D.B. v. North Carolina,
564 U.S. 261
, 269,
131 S. Ct. 2394
,
2401,
180 L. Ed. 2d 310
(2011), quoting Miranda at 467,
86 S. Ct. 1602
; Dickerson v. United
States,
530 U.S. 428
, 435,
120 S. Ct. 2326
,
147 L. Ed. 2d 405
(2000). That risk is even
more troubling and acute when, as in the instant case, the subject of the interrogation is
a juvenile. J.D.B. at 269.
{¶16} In light of the inherent coercion involved in custodial interrogation, Miranda
established “a set of prophylactic measures” to safeguard the constitutional privilege
against self-incrimination.
Id. In broad terms,
Miranda held the State may not use a
Licking County, Case No. 2020 CA 00012 8
defendant's statements from custodial interrogation “unless it demonstrates the use of
procedural safeguards effective to secure the privilege against self-incrimination.”
Miranda at 444,
86 S. Ct. 1602
. Prior to questioning, the police must warn the suspect
“that he has a right to remain silent, that any statement he does make may be used as
evidence against him, and that he has a right to the presence of an attorney, either
retained or appointed.”
Id. The Supreme Court
recognized the importance of a suspect's
“real understanding” of his rights and his intelligent decision whether to exercise them. Id.
at 469,
86 S. Ct. 1602
.
{¶17} If custodial interrogation continues in the absence of an attorney after a
police officer advises a suspect of his rights, the State must demonstrate by a
preponderance of the evidence the suspect “knowingly and intelligently waived his
privilege against self-incrimination and his right to retained or appointed counsel” before
speaking to the police.
Miranda, 384 U.S. at 475
,
86 S. Ct. 1602
. A court may not
presume a valid waiver either from the suspect's silence after warnings are given or from
the fact the suspect eventually confessed. Miranda at 475,
86 S. Ct. 1602
,
16 L. Ed. 2d 694
. Rather, the record must show the accused was offered counsel but intelligently and
understandingly rejected the offer.
Id. If the state
does not satisfy its burden, “no
evidence obtained as a result of interrogation can be used.” Id. at 479,
86 S. Ct. 1602
.
{¶18} To determine whether a suspect knowingly, intelligently, and voluntarily
waived his Miranda rights, courts examine the totality of the circumstances. State v. Clark,
38 Ohio St. 3d 252
, 261,
527 N.E.2d 844
(1988). When the suspect is a juvenile, the
totality of the circumstances includes “the juvenile's age, experience, education,
background, and intelligence” as well as his “capacity to understand the warnings given
Licking County, Case No. 2020 CA 00012 9
him, the nature of his Fifth Amendment rights, and the consequences of waiving those
rights.” Fare v. Michael C.,
442 U.S. 707
, 725,
99 S. Ct. 2560
,
61 L. Ed. 2d 197
(1979). A
juvenile's access to advice from a parent, guardian or custodian also plays a role in
assuring that the juvenile's waiver is knowing, intelligent, and voluntary. See In re C.S.,
115 Ohio St. 3d 267
, 2007-Ohio-4919,
874 N.E.2d 1177
, ¶ 96.
{¶19} Appellant argues he did not expressly waive his rights, but merely answered
in the affirmative when he was asked if he understood his rights. He argues based on
his age, immaturity, and the absence of a parent during questioning, his waiver of his
Miranda rights was not voluntarily, knowingly, and intelligently made.
{¶20} The fact a defendant did not sign a rights waiver form or expressly state he
was waiving his rights is not controlling. State v. Fowler, 5th Dist. Tuscarawas No. 2015
AP 0054, 2016-Ohio-1209, ¶ 20. A suspect need not be asked directly whether he or she
understands the Miranda warnings before an understanding waiver of Miranda rights may
be inferred from the totality of the circumstances. State v. Lather,
110 Ohio St. 3d 270
,
2006-Ohio-4477,
853 N.E.2d 279
, ¶ 5 (2006). However, where a suspect speaks freely
to police after acknowledging he understands his rights, a court may infer the suspect
implicitly waived his rights. State v. Murphy,
91 Ohio St. 3d 516
, 2001-Ohio-112,
747 N.E.2d 765
(2001)
{¶21} Appellant was read his Miranda rights and asked if he understood them.
Appellant answered in the affirmative. The questioning lasted only around an hour.
Appellant was 15 ½ years old at the time, and a high school student. Appellant’s father
was a retired police officer. Although Appellant was emotional during the interview, the
trial court found his emotion was reasonable under the circumstances and did not render
Licking County, Case No. 2020 CA 00012 10
the statement involuntary. The trial court noted there was no evidence of deprivation or
mistreatment by the police. While police did ask the victim to text Appellant in order to
obtain information about the crime, the record demonstrates Appellant voluntarily chose
to talk to police and discussed the crime at length before discussing the messages he
exchanged with the victim. We find the trial court did not err in overruling Appellant’s
motion to suppress his statement to police.
{¶22} The first assignment of error is overruled.
II.
{¶23} In his second assignment of error, Appellant argues the court erred by
failing to allow him to cross-examine the victim on past sexual activity between herself
and Appellant, based on the rape shield law.
{¶24} R.C. 2907.02(D), commonly known as Ohio’s Rape Shield Law, provides in
pertinent part:
(D) Evidence of specific instances of the victim's sexual activity,
opinion evidence of the victim's sexual activity, and reputation evidence of
the victim's sexual activity shall not be admitted under this section unless it
involves evidence of the origin of semen, pregnancy, or disease, or the
victim's past sexual activity with the offender, and only to the extent that the
court finds that the evidence is material to a fact at issue in the case and
that its inflammatory or prejudicial nature does not outweigh its probative
value.
Licking County, Case No. 2020 CA 00012 11
{¶25} “A trial court is vested with broad discretion in determining the admissibility
of evidence in any particular case, so long as such discretion is exercised in line with the
rules of procedure and evidence.” Rigby v. Lake Cty.,
58 Ohio St. 3d 269
, 271,
569 N.E.2d 1056
(1991).
{¶26} During cross-examination of the victim, counsel for Appellant asked her,
“Do you recall telling the social worker that you and [C.Q.] would do something sexual
every time you went over there?” Tr. 117. The State objected on the basis the
questioning violated the rape shield law. The trial court sustained the objection.
{¶27} Although Appellant correctly argues R.C. 2907.02(D) allows evidence to be
admitted concerning the victim’s past sexual activity with the offender, it does so only to
the extent the court finds the evidence is material to a fact at issue in the case. In his
statement to police, Appellant admitted the sexual conduct he engaged in on January 22,
2019, was not consensual, even though they had engaged in consensual sexual behavior
in the past. Once the trial court determined Appellant’s statement to police was
admissible, whether the victim consented on past occasions to sexual behavior with
Appellant was not material to a fact at issue in the case, as consent was no longer at
issue through Appellant’s own admissions. Appellant instead focused his case on the
lack of physical DNA evidence connecting Appellant to the victim, and the victim’s
statements she was not sure Appellant’s penis entered her vagina.
{¶28} We find the trial court did not abuse its discretion in sustaining the State’s
objection to Appellant’s questioning of the victim regarding past incidents of sexual
activity.
{¶29} The second assignment of error is overruled.
Licking County, Case No. 2020 CA 00012 12
III.
{¶30} In his third assignment of error, Appellant argues the court’s finding he was
delinquent by reason of rape is not supported by sufficient evidence.
{¶31} We apply the same standard of review for sufficiency of the evidence in
juvenile delinquency adjudications as for adult criminal defendants. In re T.R., 5th Dist.
Guernsey No. 10CA000002, 2010-Ohio-4419, ¶ 11. An appellate court's function when
reviewing the sufficiency of the evidence is to determine whether, after viewing the
evidence in a light most favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime proven beyond a reasonable doubt. State v.
Jenks,
61 Ohio St. 3d 259
,
574 N.E.2d 492
, paragraph two of the syllabus (1991).
{¶32} Appellant was found delinquent by reason of rape in violation of. R.C.
2907.02(A)(2), which provides, “No person shall engage in sexual conduct with another
when the offender purposely compels the other person to submit by force or threat of
force.”
{¶33} R.C. 2907.01(A) defines sexual conduct:
“Sexual conduct” means vaginal intercourse between a male and
female; anal intercourse, fellatio, and cunnilingus between persons
regardless of sex; and, without privilege to do so, the insertion, however
slight, of any part of the body or any instrument, apparatus, or other
object into the vaginal or anal opening of another. Penetration, however
slight, is sufficient to complete vaginal or anal intercourse.
Licking County, Case No. 2020 CA 00012 13
{¶34} The statement Appellant made to Det. Vanoy was admitted into evidence.
In the statement, Appellant admitted on the date of the offense, he began “messing” with
the victim. He stated the contact became more intimate than usual, and she told him to
stop. He stated he did not stop but kept going, with his penis getting closer to her vagina.
He admitted inserting his two fingers in her vagina and thrusting them in and out, despite
her repeated requests to stop. He admitted he inserted the tip of his penis into her vagina.
He told the detective on one prior occasion, his penis had gone inside her, but they had
stopped. He did not know why she told him to stop on this occasion, but Appellant felt
because she did not like it the other time, she decided to say something this time.
Appellant estimated the victim told him to stop five or six times, but he did not stop.
Appellant stated the victim was visibly upset, and he pulled her back to the floor despite
her attempts to get up. He finally stopped when she had to leave. Appellant showed Det.
Vanoy the Facebook messages they exchanged, in which Appellant told the victim he
was evil and hated himself because he felt he had forced himself on her.
{¶35} The victim testified at trial that on January 22, 2019, she and Appellant
purchased food at White Castle, then returned to Appellant’s house to eat and hang out
in his bedroom. The couple had been dating for a few months. They began kissing.
Appellant tried to take her clothes off. She told him to stop. Appellant then removed her
pants and threw them across the room. When she tried to retrieve her pants, he pulled
her from the loveseat to the floor. She was on the floor on her back, with Appellant on
top of her. Appellant began taking his own clothes off. Appellant put his fingers inside
her vagina. She believed he put his penis inside her. She repeatedly told Appellant to
Licking County, Case No. 2020 CA 00012 14
stop. Appellant did not stop until she told Appellant her brother-in-law was there to pick
her up. She put on her pants to leave, and Appellant said, “I’m sorry for forcing you.”
{¶36} We find this evidence is sufficient to support the finding of delinquency by
reason of rape. Appellant argues his DNA was not found on the victim, and she was
unclear in her statements to the authorities as to whether Appellant’s penis penetrated
her. However, the trial court expressly found Appellant delinquent by reason of rape
based on digital penetration. Both Appellant’s statement and the victim’s testimony were
consistent Appellant digitally penetrated her vagina while she repeatedly asked him to
stop.
{¶37} The third assignment of error is overruled.
IV.
{¶38} In his fourth assignment of error, Appellant argues the court erred in
ordering him to register as a Tier I sex offender.
{¶39} R.C. 2152.83(B) allows the trial court in the instant case to hold a hearing
on whether or not Appellant should be labeled as a juvenile sex offender registrant:
(B)(1) The court that adjudicates a child a delinquent child, on the
judge's own motion, may conduct at the time of disposition of the child or, if
the court commits the child for the delinquent act to the custody of a secure
facility, may conduct at the time of the child's release from the secure facility
a hearing for the purposes described in division (B)(2) of this section if all of
the following apply:
Licking County, Case No. 2020 CA 00012 15
(a) The act for which the child is adjudicated a delinquent child is a
sexually oriented offense or a child-victim oriented offense that the child
committed on or after January 1, 2002.
(b) The child was fourteen or fifteen years of age at the time of
committing the offense.
(c) The court was not required to classify the child a juvenile offender
registrant under section 2152.82 of the Revised Code or as both a juvenile
offender registrant and a public registry-qualified juvenile offender registrant
under section 2152.86 of the Revised Code.
{¶40} Which tier a juvenile sex offender registrant is placed in rests within the
juvenile court's discretion. In re C.P.,
131 Ohio St. 3d 513
, 2012-Ohio-1446,
967 N.E.2d 729
, ¶ 20 (2012). An abuse of discretion implies the trial court’s decision was arbitrary,
unreasonable, or unconscionable. Blakemore v. Blakemore,
5 Ohio St. 3d 217
,
450 N.E.2d 1140
(1983).
{¶41} In the instant case, the State recommended Appellant be classified as a
Tier II registrant. Counsel for Appellant concurred with the State’s recommendation.
However, after listening to the statements made at the hearing and reviewing the
psychological evaluation and risk assessment filed in the case, the trial court classified
Appellant as a Tier I offender, specifically finding, “Youth is classified as a TIER I juvenile
sex offender registrant because he is at risk of further offending, he lacks insight, shows
no remorse, exhibits no victim empathy and is reluctant to change behavior.” Judgment
entry, 2/12/20.
Licking County, Case No. 2020 CA 00012 16
{¶42} Appellant argues the reason he displayed no remorse or empathy is
because he was considering the possibility of an appeal, and therefore on the advice of
counsel chose not to make further admissions to Dr. Miller, who conducted his evaluation.
Appellant unsuccessfully made this same argument to the trial court. The trial court was
in a better position than this Court to view the demeanor of Appellant throughout the
proceedings. Further, the psychological evaluation and risk assessment filed under seal
with this Court supports the trial court’s findings. Based on the record before this Court,
we find the trial court did not abuse its discretion in classifying Appellant as a Tier I
offender.
{¶43} The fourth assignment of error is overruled.
V.
{¶44} In the fifth assignment of error, Appellant argues his trial counsel was
ineffective for failing to object to his classification as a Tier I offender, and for failing to
move to dismiss the complaint for insufficient evidence pursuant to Crim. R. 29.
{¶45} A properly licensed attorney is presumed competent. State v. Hamblin,
37 Ohio St. 3d 153
,
524 N.E.2d 476
(1988). Therefore, in order to prevail on a claim of
ineffective assistance of counsel, Appellant must show counsel's performance fell below
an objective standard of reasonable representation and but for counsel’s error, the result
of the proceedings would have been different. Strickland v. Washington,
466 U.S. 668
,
104 S. Ct. 2052
, 80 L.Ed.2d 674(1984); State v. Bradley,
42 Ohio St. 3d 136
,
538 N.E.2d 373
(1989). In other words, appellant must show counsel’s conduct so undermined the
proper functioning of the adversarial process that the trial cannot be relied upon as having
produced a just result.
Id. Licking County, Case
No. 2020 CA 00012 17
{¶46} Appellant argues counsel was ineffective for failing to make a Crim. R. 29
motion to dismiss the complaint at the end of the State’s case, based on insufficient
evidence. In our discussion of Appellant’s third assignment of error, we found the
judgment finding Appellant delinquent by reason of rape was supported by sufficient
evidence. Therefore, Appellant has not demonstrated a reasonable probability the
outcome of the trial would have been different had counsel made a Crim. R. 29(A) motion
to dismiss the complaint.
{¶47} Appellant also argues counsel was ineffective for failing to object to his
classification as a Tier I sex offender registrant. Both the prosecutor and the State
recommended Appellant be classified as a Tier II offender. Counsel for Appellant argued
strenuously against the findings of Dr. Miller concerning Appellant’s lack of empathy for
the victim and his unwillingness to accept responsibility for his actions. While counsel did
not expressly object when the court stated it intended to classify Appellant as a Tier I
offender, we find counsel’s actions did not fall below an objective standard of reasonable
representation. Further, as we discussed in Appellant’s fourth assignment of error, the
trial court did not abuse its discretion in classifying him as a Tier I offender; therefore,
Appellant has not demonstrated a reasonable probability of a change in the outcome had
counsel specifically objected after the court made its classification ruling.
Licking County, Case No. 2020 CA 00012 18
{¶48} The fifth assignment of error is overruled.
{¶49} The judgment of the Licking County Common Pleas Court, Juvenile
Division, is affirmed.
By: Hoffman, P.J.
Gwin, J. and
Wise, John, J. concur |
4,639,364 | 2020-12-03 20:12:42.69288+00 | null | http://www.supremecourt.ohio.gov/rod/docs/pdf/5/2020/2020-Ohio-5529.pdf | [Cite as Carpenter v. Lemley, 2020-Ohio-5529.]
COURT OF APPEALS
KNOX COUNTY, OHIO
FIFTH APPELLATE DISTRICT
SHAWNTEE CARPENTER JUDGES:
Hon. William B. Hoffman, P.J.
Plaintiff-Appellee Hon. Craig R. Baldwin, J.
Hon. Earle E. Wise, Jr., J.
-vs-
Case No. 20CA000006
JOSHUA J. LEMLEY
Defendant-Appellant O P I N IO N
CHARACTER OF PROCEEDINGS: Appeal from the Knox County Court of
Common Pleas, Case No. 19ST06-0189
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: December 2, 2020
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JOSHUA J. LEMLEY
7171 Billman Road
Gambier, Ohio 43022
Knox County, Case No. 20CA000006 2
Hoffman, P.J.
{¶1} Defendant-appellant Joshua J. Lemley appeals the judgment entered by the
Knox County Common Pleas Court granting Plaintiff-appellee Shawntee Carpenter’s
petition for a civil protection stalking order (“CPO”) against him.
STATEMENT OF THE FACTS AND CASE
{¶2} On June 18, 209, Appellee filed a petition for a CPO. The court granted the
order ex parte pursuant to R.C. 2903.214. The case proceeded to a full hearing on July
26, 2019, before a magistrate. The magistrate found the evidence showed a pattern of
behavior by Appellant which caused Appellee to believe Appellant would cause her
physical harm or mental distress. The magistrate specifically found Appellee’s testimony
to be credible, and Appellant’s testimony to not be credible. The magistrate’s decision
issued the protection order through July 26, 2024.
{¶3} Appellant filed objections to the magistrate’s decision on August 8, 2019.
He also filed a motion to hold Appellee in contempt of court for lying at the hearing, and
he filed a motion to vacate the judgment pursuant to Civ. R. 60(B). The trial court
overruled Appellant’s objections, and denied his motions for contempt and relief from
judgment. The trial court adopted the magistrate’s decision.
{¶4} It is from the January 16, 2020 judgment of the Knox County Common
Pleas Court Appellant prosecutes his appeal, assigning as error:
I. THE TRIAL COURT ERRORED BY NOT NOTIFYING THE
APPELLANT JOSHUA J. LEMLEY OF THE EX PARTE HEARING THAT
TOOK PLACE ON JUNE 18TH, 2019.
Knox County, Case No. 20CA000006 3
II. THE TRIAL COURT ERRORED BY NOT ADDRESSING I THE
APPELLANT JOSHUA J. LEMLEYS [SIC] TWO MINOR CHILDREN KL, LL
AND MY PARENTAL RIGHTS AS A FATHER WHO HAD ESTABLISHED
PATERNITY AT BIRTH FOR BOTH CHILDREN ALONG WITH THE
MOTHER AT BIRTH AND NEITHER I THE APPELLANT NOR THE
APPELLEE SHAWNTEE CARPENTER EVER RESCINDED EITHER
BIRTH AFTER SIXTY DAYS.
III. THE TRIAL COURT ERRORED BY NOT ADDRESSING THE
ISSUE OF “PROPERTY” AT THE EX PARTE HEARING THAT TOOK
PLACE ON JUNE 18TH, 2019.
IV. THE TRIAL COURT ERRORED BY NOT FILING THE MOTION
TO VACATE THE PREMISES/MOTION FOR EXCLUSIVE USE.
V. THE TRIAL COURT ERRORED BY NOT ADDRESSING LOCAL
RULES 11.1 GENERAL APPLICATION AND LOCAL RULE 11.2
COMPLIANCE WHICH STATES, “NO ACTION SHALL PROCEED TO
FINAL HEARING UNTIL THERE HAS BEEN COMPLIANCE WITH THIS
RULE UNLESS THE PARTIES RECEIVE LEAVE OF COURT, OR IN
SITUATIONS WHERE THE NONCOMPLYING PARENT HAS ENTERED
NO APPEARANCE AND DOES NOT CONTEST THE ACTION.”
VI. THE TRIAL COURT ERRORED BY NOT HOLDING A HEARING
FOR TWO MOTIONS THAT I FILED IN A TIMELY FASHION, MOTION
FOR CONTEMPT IN THE PRESENCE OF A MAGISTRATE AND MOTION
RULE 60(B) MOTION FOR RELIEF FROM JUDGEMENT OR ORDER.
Knox County, Case No. 20CA000006 4
I.
{¶5} In his first assignment of error, Appellant argues the court erred in failing to
notify him of the ex parte hearing on the CPO, held June 18, 2019.
{¶6} R.C. 2903.214(D)(1) provides:
(D)(1) If a person who files a petition pursuant to this section requests
an ex parte order, the court shall hold an ex parte hearing as soon as
possible after the petition is filed, but not later than the next day that the
court is in session after the petition is filed. The court, for good cause shown
at the ex parte hearing, may enter any temporary orders, with or without
bond, that the court finds necessary for the safety and protection of the
person to be protected by the order. Immediate and present danger to the
person to be protected by the protection order constitutes good cause for
purposes of this section. Immediate and present danger includes, but is not
limited to, situations in which the respondent has threatened the person to
be protected by the protection order with bodily harm or in which the
respondent previously has been convicted of or pleaded guilty to a violation
of section 2903.211 of the Revised Code or a sexually oriented offense
against the person to be protected by the protection order.
{¶7} Black’s Law Dictionary defines ex parte as follows:
Knox County, Case No. 20CA000006 5
On one side only; by or for one party; done for, in behalf of, or on the
application of, one party only. A judicial proceeding, order, injunction, etc.,
is said to be ex parte when it is taken or granted at the instance and for the
benefit of one party only, and without notice to, or contestation by, any
person adversely interested.
{¶8} Thus, by its nature, an ex parte hearing was held in the absence of
Appellant, and without notice to Appellant. Appellant appeared and presented evidence
at the full hearing, which followed the issuance of the temporary ex parte order.
{¶9} The first assignment of error is overruled.
II, III, IV.
{¶10} In his second, third, and fourth assignments of error, Appellant argues the
court erred in failing to address issues of paternity, visitation, and property between the
parties.
{¶11} Appellant did not raise these issues in his objections to the magistrate’s
order. Pursuant to Civ. R. 53(D)(3)(b)(iv), we find Appellant has waived any error.
Further, these issues were not germane to the instant action, which was a petition for a
civil protection order, and not an action concerning division of property or parenting of the
minor children.
{¶12} The second, third, and fourth assignments of error are overruled.
V.
{¶13} Appellant argues the court erred in failing to follow Local Rules of the
Domestic Relations Court 11.1 and 11.2. These rules expressly apply to parents of minor
Knox County, Case No. 20CA000006 6
children involved in divorce, dissolution, or legal separation actions. Because the instant
action was an action for a civil protection order and not one for divorce, dissolution, or
legal separation, we find Local Rules 11.1 and 11.2 did not apply.
{¶14} The fifth assignment of error is overruled.
VI.
{¶15} In his final assignment of error, Appellant argues the court erred in
overruling his motions for direct contempt and for relief from judgment without a hearing.
{¶16} Appellant filed a motion to hold Appellee in direct contempt of court for
giving untruthful testimony in the hearing before the magistrate. The trial court overruled
the motion.
{¶17} A private party may not file an independent contempt action seeking
sanctions for suborning perjury. Anderson v. Smith, 10th Dist. Franklin No. 11AP-160,
196 Ohio App. 3d 540
, 2011-Ohio-5619,
964 N.E.2d 468
, ¶13. We find the trial court did
not err in overruling Appellant’s motion on this basis, without holding a hearing.
{¶18} Further, the magistrate specifically found Appellee’s testimony to be
credible, and Appellant’s testimony to not be credible. In overruling Appellant’s motion
for contempt, the trial court noted Appellant believed Appellee lied about three specific
things: establishment of paternity for the minor children, the name of the party on the
lease for the property where Appellee resided, and Appellee’s representation Appellant
violated the ex parte protection order when he returned to the parties’ apartment to
retrieve his personal belongings. The trial court found even if Appellant could
demonstrate Appellee provided false testimony on these issues, the pertinent factual
findings concerning Appellant’s pattern of behavior toward Appellee which caused her to
Knox County, Case No. 20CA000006 7
believe Appellant would physically harm her or cause her mental distress would remain
unchanged, and thus the CPO would still issue. We find no error in the trial court’s
determination.
{¶19} Appellant further argues the trial court erred in overruling his Civ. R. 60(B)
motion for relief from judgment without holding a hearing. Appellant filed his motion
before the trial court had entered final judgment. Appellant filed objections to the
magistrate’s decision, which were pending at the time he filed his Civ. R. 60(B) motion.
When a party files timely objections, Civ. R. 60(B) is not applicable until after the trial court
rules on the timely filed objections and enters final judgment. Carpenter v. Johnson, 2nd
Dist. Montgomery No. 24128,
196 Ohio App. 3d 106
, 2011-Ohio-4867,
962 N.E.2d 377
,
¶10. We find the trial court did not err in dismissing Appellant’s motion on the basis it was
prematurely filed.
{¶20} The sixth assignment of error is overruled.
{¶21} The judgment of the Knox County Common Pleas Court is affirmed.
By: Hoffman, P.J.
Baldwin, J. and
Wise, Earle, J. concur |
4,639,365 | 2020-12-03 20:12:43.423945+00 | null | http://www.supremecourt.ohio.gov/rod/docs/pdf/5/2020/2020-Ohio-5532.pdf | [Cite as Blankenship v. Howard, 2020-Ohio-5532.]
COURT OF APPEALS
PERRY COUNTY, OHIO
FIFTH APPELLATE DISTRICT
BETTY E. BLANKENSHIP JUDGES:
Hon. William B. Hoffman, P.J.
Petitioner-Appellee Hon. Craig R. Baldwin, J.
Hon. Earle E. Wise, Jr., J.
-vs-
Case No. 19-CA-00020
CHARLES M. HOWARD, II
Respondent-Appellant O P I N IO N
CHARACTER OF PROCEEDINGS: Appeal from the Perry County Court of
Common Pleas, Case No. 17-CP-00178
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: December 2, 2020
APPEARANCES:
For Petitioner-Appellee For Respondent-Appellant
BETTY E. BLANKENSHIP CHARLES M. HOWARD, II
227 South Jackson Street 1821 Mary Augusta Street
New Lexington, Ohio 43764 Manteca, California 95337
Perry County, Case No. 19-CA-00020 2
Hoffman, P.J.
{¶1} Respondent-appellant Charles Howard appeals the October 21, 2019 Entry
entered by the Perry County Court of Common Pleas, which denied his objections to the
magistrate’s September 17, 2019 decision, and approved and adopted said decision as
order of the court. Petitioner-appellee is Betty E. Blankenship.
STATEMENT OF THE CASE
{¶2} Appellant and Appellee were never married, but resided together for
approximately ten years, during which time they had two children together. At some point,
during the course of the relationship, the parties moved from Ohio to California. It appears
the relationship ended sometime in 2010. Appellant was subsequently charged with
domestic violence against Appellee. The Superior Court of California, County of San
Joaquin, issued a criminal protection order (“CPO”) against Appellant on November 3,
2010. On January 25, 2013, the California Superior Court issued a second CPO, effective
until January 24, 2018. Appellee and the two children eventually returned to Ohio.
Appellant still resides in California.
{¶3} On December 6, 2017, Appellee filed a petition for domestic violence civil
protection order (“DVCPO”) in the Perry County Court of Common Pleas.
{¶4} The trial court conducted a hearing on the petition on December 26, 2017.
Appellant was served with notice of the hearing, but did not appear. On January 4, 2018,
the trial court issued a DVCPO, effective until December 26, 2022. The DVCPO included
the parties’ children as “person(s) protected by this order.”
{¶5} On March 12, 2018, Appellant filed a motion to quash the DVCPO. The
motion came on for hearing before the magistrate on May 9, 2018. The magistrate denied
Appellant’s motion via decision filed May 14, 2018. Via Order filed the same day, the trial
Perry County, Case No. 19-CA-00020 3
court approved and adopted the magistrate’s decision. Appellant did not file objections
to the magistrate’s decision or appeal the trial court’s adoption of said decision.
{¶6} Appellant filed a motion for new trial on July 31, 2019. Therein, Appellant
argued the California Superior Court had general and personal jurisdiction over him and
had home state jurisdiction over the children. Appellant further asserted the trial court
failed to allow him to cross-examine Appellee’s witness at the hearing; and the trial court
violated his right to be free from double jeopardy. Appellant concluded the trial court did
not have authority to enforce the California CPO. The trial court set the motion for non-
oral hearing on August 30, 2019.
{¶7} The magistrate denied Appellant’s motion via decision and order filed
September 17, 2019. The trial court approved and adopted the magistrate’s decision as
order of the court on the same day. Appellant filed objections to the magistrate’s decision,
which the trial court summarily denied via Entry filed October 21, 2019.
{¶8} It is from this entry Appellant appeals, assigning the following as error1:
I. A. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR IN
GRANTING PLAINTIFF CRIMINAL PROTECTION ORDER FROM
CALIFORNIA WAS READY TO EXPIRE IN JANUARY 2018. PLAINTIFF
BEING A NON-RESIDENT, AS IT PERTAINS TO THIS SUBJECT
JURISDICTION, RENEWED OHIO CIVIL PROTECTION ORDER,
WITHOUT SHOWING THE PREPONDERANCE OF THE EVIDENCE.
1 Other than bracketed “SIC”, all other brackets original to Appellant’s Brief.
Perry County, Case No. 19-CA-00020 4
B. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR,
WHEN THE PLAINTIFF IS UNABLE TO SHOW RELEVANT DATES AS
TO WHEN THE LAST INCIDENT OF ABUSE, THREAT OF HARM, OR
COMMISSION [SIC] OTHER RELEVANT INFORMATION CONCERNING
THE SAFETY AND PROTECTION OF THE PETITIONER OR OTHER
PROTECTED PARTIES.
C. TRIAL COURT ALLOWED PLAINTIFF TO INCLUDE THEIR
TWO CHILD[REN] ON THE RENEWED PROTECTION ORDER. BY
ALLOWING THE TWO CHILD[REN] IN-COMMON TO BE INCLUDED ON
THE RENEWED ORDER, THE TRIAL COURT HAS VIOLATED THE
CALIFORNIA VISITATION ORDER THE DEFENDANT HAS.
D. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR,
PLAINTIFF’S TESTIMONY WHEN ASKED BY TRIAL COURT, “THE LAST
TIME HE’S THREATENED, PHYSICAL HARM TO YOU.” IN PERTINENT
PART I DO NOT HAVE THE DATES IN FRONT OF ME.
II. WORD JURISDICTION HAS FEW DEFINITIONS ACCORDING
TO WEBSTER. HOWEVER, ONE DEFINITION IS [SIC] HOLDS
TRUTHFUL IS: “THE LIMITS OR TERRITORY WITHIN WHICH
AUTHORITY BE EXERCISED.” TRIAL COURT IN THIS MANNER
EXPRESS ITSELF SEVERAL TIMES DURING THE FULL HEARING,
HOW IT WILL NOT HEAR/LISTEN TO MATTERS DEALING WITH THE
PENDING CHILD[REN] CUSTODY MATTER. TRIAL COURT IN
STATEMENTS MAD [SIC], KNEW WHOLE HEARTILY [SIC] THE
Perry County, Case No. 19-CA-00020 5
PENDING MATTER IN CALIFORNIA. AS A MATTER OF LAW, THE
TRIAL COURT SHOULD HAVE FOLLOWED THE GUIDED LINES [SIC]
ADDRESSED IN THE UCCJEA. THE HOME STATE JURISDICTION AND
UCCJEA, HAVE BEEN VIOLATED BY THE TRIAL COURT.
III. EXPERT WITNESS WORKED IN THE DEFENDANT’S FAVOR.
AT ONE POINT IN THE BEGINNING OF THE HEARTING [SIC], THE
TRIAL COURT ASKED PLAINTIFF IF MAYBE AMEND THE RENEW
PROTECTION ORDER, SO DEFENDANT COULD VISIT THE CHILDREN.
REPLIED NO. PLAINTIFF EXPERT WITNESS, REPLIES TO THE
QUESTION ASKED, “SHOULD THERE BY ANY SIGNIFICANT CHANGE
IN THEIR LIFE RIGHT NOW THAT WOULD HELP THEM ALONG.” M.A.
STATES, “I WOULD RECOMMOND [SIC] THAT.” SHE WOULD
RECOMMEND THAT. SADLY, DEFENDANT HAS TRIED TO REACH
OUT TO THE EXPERT WITNESS, BUT UNABLE TO RETURN MY CALLS.
WITH MAKING THE CALLS TO THE EXPERT WITNESS, DEFENDANT
HAS JUST FOUND OUT, FEW WEEKS AGO THE CHILD[REN] NO
LONGER SEE THIS PERSON.
I, III
{¶9} We begin our analysis by clarifying the issues presented for our review.
{¶10} This appeal comes to us from the trial court’s entry denying Appellant’s
motion for new trial. The denial of a motion for new trial is reviewed under an abuse of
discretion standard. Thomas v. Columbia Sussex Corp., 10th Dist. No. 10AP–93, 2011-
Perry County, Case No. 19-CA-00020 6
Ohio-17,
2011 WL 96277
, ¶ 16. Appellant does not contest the trial court's ruling on his
motion. Rather, his arguments on appeal are the same arguments asserted in his motion
to quash DVCPO filed March 12, 2018, and denied by the trial court via Order issued May
14, 2018, and which were the grounds for July 31, 2019 motion for new trial. Appellant
did not appeal the trial court’s May 14, 2018 Order.
{¶11} Because Appellant could have raised these arguments in a direct appeal
from the denial of his motion to quash DVCPO, his claims are barred by res judicata.
Accordingly, we find the trial court did not abuse its discretion in denying Appellant’s
motion for new trial.
{¶12} Appellant’s first and third assignments of error are overruled.
II
{¶13} In his second assignment of error, Appellant indirectly challenges the trial
court’s jurisdiction to issue the DVCPO. Appellant’s challenge is premised upon the trial
court’s alleged failure to follow the guidelines set forth in the UCCJEA.
{¶14} The UCCJEA was drafted to avoid jurisdictional conflicts and competition
between different states in child custody litigation. Berube v. Berube, 5th Dist. Stark No.
2017CA00102, 2018-Ohio-828,
2018 WL 1168722
, ¶ 10. The intent of the UCCJEA was
to ensure a state court would not exercise jurisdiction over a child custody proceeding if
a court in another state was already exercising jurisdiction over the child in a pending
custody proceeding. Rosen v. Celebrezze,
117 Ohio St. 3d 241
, 2008-Ohio-853,
883 N.E.2d 420
, ¶ 20-21. The UCCJEA “is premised on the assumption that sister state courts
will communicate with one another.” In re M.M.V.,
2020 COA 94
,
469 P.3d 556
, ¶ 33
Perry County, Case No. 19-CA-00020 7
(Colo. App.), citing Saavedra v. Schmidt,
96 S.W.3d 533
, 547-48 (Tex. App. 2002). See,
R.C. 3217.09.
{¶15} Appellant essentially argues the trial court lacked subject matter jurisdiction
because it failed to communicate with the California family court as contemplated by the
UCCJEA. We disagree.
{¶16} While the trial court and the California family court arguably had concurrent
jurisdiction, the trial court had jurisdiction to issue the DVCPO pursuant to R.C
3113.31(A)(2) and (B). Any potential error by the trial court in failing to communicate
with the California family court did not deprive the trial court of its jurisdiction. Any
potential error resulting from such failure would be an error in the trial court’s exercise of
its jurisdiction and would have been subject to direct appeal from the trial court’s January
4, 2018 order granting Appellee’s petition for the domestic violence civil protection order.
Because Appellant failed to appeal the January 4, 2018 order, he is barred by res judicata
from asserting this argument in his appeal from the trial court’s denial of his motion for
new trial.
Perry County, Case No. 19-CA-00020 8
{¶17} Appellant’s second assignment of error is overruled.
{¶18} The judgment of the Perry County Court of Common Pleas is affirmed.
By: Hoffman, P.J.
Baldwin, J. and
Wise, Earle, J. concur |
4,669,345 | 2021-03-19 00:00:28.416367+00 | null | http://www.ca5.uscourts.gov/opinions/unpub/19/19-60862.0.pdf | Case: 19-60862 Document: 00515786662 Page: 1 Date Filed: 03/18/2021
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
No. 19-60862 March 18, 2021
Summary Calendar
Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Edward James Mobley; Jerome Benamon,
Defendants—Appellants.
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 3:16-CR-40-3
Before Owen, Chief Judge, and Haynes and Costa, Circuit Judges.
Per Curiam:*
A jury convicted Edward James Mobley and Jerome Benamon of
assaulting a postal service driver and brandishing and discharging a firearm
during the assault, in violation of
18 U.S.C. § 2114
(a) and
18 U.S.C. § 924
(c)(1)(A). The district court sentenced Mobley to a total term of 183
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
Case: 19-60862 Document: 00515786662 Page: 2 Date Filed: 03/18/2021
No. 19-60862
months of imprisonment and four years of supervised release. Benamon was
sentenced to a total term of 180 months of imprisonment and four years of
supervised release.
On appeal, Benamon and Mobley challenge the district court’s denial
of their motion for new trial based on a claim that the Government violated
Brady v. Maryland,
373 U.S. 83
, 87 (1963). Benamon argues that the
Government violated Brady by failing to preserve favorable and material
video surveillance evidence. Both Benamon and Mobley argue that the
Government violated Brady by failing to disclose what investigators observed
on the subsequently destroyed footage once they learned that the footage was
inconsistent with the testimony of the Government’s primary witness, co-
defendant Khalil Slayton.
Benamon fails to identify “a single exculpatory fact that might have
emerged from the lost” video footage. United States v. Moore,
452 F.3d 382
,
388 (5th Cir. 2006) (per curiam). Even if the lost video surveillance evidence
was potentially useful to his defense, Benamon fails to show that the
Government acted in bad faith in failing to preserve the evidence that was
destroyed due to a third-party’s retention settings. See
id. at 388-89
.
Moreover, even if we assume the Government failed to disclose the
contents of the lost video footage after Slayton’s testimony, Benamon and
Mobley fail to show that the evidence was material so as to “undermine
confidence in the verdict.” Wearry v. Cain,
136 S. Ct. 1002
, 1006 (2016)
(Alito, J., dissenting) (quoting Kyles v. Whitley,
514 U.S. 419
, 435 (1995)).
The evidence does not appear to “seriously undermine” Slayton’s testimony
“on an essential issue.” See United States v. Sipe,
388 F.3d 471
, 478 (5th Cir.
2004) (quoting United States v. Weintraub,
871 F.2d 1257
, 1262 (5th Cir.
1989)). Moreover, Slayton’s testimony was “strongly corroborated by
additional evidence” in the record supporting a guilty verdict. See
id.
2
Case: 19-60862 Document: 00515786662 Page: 3 Date Filed: 03/18/2021
No. 19-60862
Accordingly, Benamon and Mobley have failed to show that the district court
erred in denying their motion for new trial.
Benamon also argues that, in its closing argument rebuttal, the
Government improperly referred to evidence that was not adduced at trial.
Because Benamon “failed to make a contemporaneous objection to the
prosecutor’s closing remarks in the trial court,” plain error review applies.
United States v. Mares,
402 F.3d 511
, 515 (5th Cir. 2005) (citing United States
v. Gallardo-Trapero,
185 F.3d 307
, 322 (5th Cir. 1999)). Even if the
prosecutor’s closing argument contained an improper or impermissible
statement based on facts not in evidence, the remarks were not “so
pronounced and persistent as to permeate the entire atmosphere of the trial.”
United States v. Ramirez-Velasquez,
322 F.3d 868
, 875 (5th Cir. 2003)
(internal quotation marks omitted) (quoting United States v. Iredia,
866 F.2d 114
, 117 (5th Cir. 1989) (per curiam)). Moreover, the district court instructed
the jury throughout the trial that the attorneys’ statements were not
evidence, further reducing any prejudice that may have stemmed from the
statements. See id. at 875. Lastly, the record contains ample evidence of
Benamon’s guilt which, when combined with the district court’s curative
instructions, outweighs any prejudicial effect of the prosecutor’s comments.
See id. at 875-76. Accordingly, Benamon fails to show his substantial rights
were affected or that any error seriously affected the public reputation of the
proceedings. See United States v. Aguilar,
645 F.3d 319
, 323, 325 (5th Cir.
2011).
Lastly, Benamon challenges the denial of his motion to suppress his
written statement to police during an interview that he argues was obtained
in violation of Miranda v. Arizona,
384 U.S. 436
(1966). Even if the district
court erred in finding that Benamon was not in custody at the time of his
interview, any such error is harmless. See United States v. Ackerman,
704 F.2d 1344
, 1349 (5th Cir. 1983).
3
Case: 19-60862 Document: 00515786662 Page: 4 Date Filed: 03/18/2021
No. 19-60862
* * *
Accordingly, the judgments of the district court are AFFIRMED.
4 |
4,490,088 | 2020-01-17 22:02:11.273244+00 | Seawell | null | *584OPINION.
Seawell:
The petitioners have pleaded the statute of limitations as a bar to the proposed assessment of a deficiency in tax.
The taxpayer, Henry B. Graham, filed an individual income-tax return for the calendar year 1920, on March 15, 1921.
He died in November, 1921, and on or about April 10, 1925, pursuant to section 3176 of the Revised Statutes of the United States, the Commissioner filed for him an income-tax return for 1921.
On or about December 28, 1925, and before the statute of limitations had run, a deficiency letter proposing for assessment additional *585income tax for 1920 and 1921, in the amount indicated in our findings of fact, was mailed to Graham’s administrator.
On February 24, 1926, said administrator filed with this Board an appeal from the deficiency letter proposing such assessment.
On May 29,1926, while the appeal was pending, the Commissioner assessed the tax and penalty as proposed, with interest, in the sum of $16,178.91.
On June 13, 1928, this Board determined deficiencies for the taxable years in question in the sum of $16,178.91.
Section 280 (b) (1) of the Revenue Act of 1926, extended. the period of limitation for assessment of any liability against transferees or fiduciaries for unpaid tax of a taxpayer or his estate, as follows:
Within one year after the expiration of the period of limitation for assessment against the taxpayer.
On April 22, 1927, which was prior to the expiration of the period of limitation for assessment against the taxpayer, the appeal of Graham’s administrator being then pending, the Commissioner mailed a deficiency letter to the petitioners in accordance with the provisions of section 280 of the Revenue Act of 1926, proposing an assessment of income tax against them as trustees in the amount of $16,178.91. An appeal was taken and petition filed on June 17, 1927, for a redetermination of the tax proposed to be assessed and the same is now before us for determination.
We are of the opinion that the statute of limitations had not run. against the proposed assessment of the tax against the petitioners, if' they are transferees or fiduciaries within the meaning of section 280 of the Revenue Act of 1926 or of section 3467 of the Revised Statutes of the United States and have property of Graham or his estate in their possession.
The material portions of the trust conveyance made to petitioners on May 23, 1916, are set out in our findings of fact and the Supreme Court of Missouri,-in McFarland v. Bishop, 282 Mo. 534; 222 S. W. 143, construed the trust instrument and discussed the rights and liabilities of the parties thereunder and the application to the situation of the provisions of section 2880 of the 1909 Revised Statutes of Missouri, which section is as follows:
Every deed of gift and conveyance of the goods and chattels in trust to the use of the person so making such deed of gift or conveyance is declared to be void as against creditors, existing and subsequent.
The Supreme Court, in its opinion, stated:
It may be admitted that this section makes the conveyance, so far as it is to the use of Graham, null and void as to creditors and purchasers. But the statute does not make it null and void, even as to creditors and purchasers, *586so far as it is for the use and benefit of Graham’s children. This deed provided for the payment of his then existing debts, and there is nothing in the statute preventing Graham from giving or conveying the remainder of his property to his children or others as against subsequent creditors and purchasers.
* # * ‡ * * *
But, it is plain enough that the remainder to Graham’s children created by the deed of trust assailed is a vested remainder. The children to whom the remainder is given were living and are named, and the fact that the remainder opens to let in after-born children does not mate it a contingent remainder. All the children, not simply those living at his death, are to take upon Graham’s death, which is sure to occur. The vesting of the title is not postponed after Graham’s death, until they reach the age of 25 years, but only the enjoyment of the possession of the property is thus postponed. This does not make the remainder contingent, or in any manner militate against its character as a vested remainder.
s{s # * $ ijc sfc sfc
The deed of trust, being valid as to the provision for the children, may, no doubt, be avoided by subsequent purchasers or subsequent creditors of Graham, in so far, and so far only, as it is for Graham’s use. In a proper proceeding, subsequent creditors or purchasers might therefore reach and appropriate the monthly sum of $500 and the income reserved to Graham.
Graham conveyed all his property to petitioners several years prior to the accrual of the income taxes now proposed to be assessed against them.
The trust created by the conveyance of May 28, 1916, was valid as to the children of Graham. It was irrevocable. It could be avoided by subsequent creditors of Graham, “ in so far, and so far only ” as it was for Graham’s use.
Subsequent creditors of his might, by timely and proper proceedings, reach and appropriate the monthly sum due him of $500 and the income reserved to him. The Supreme Court of Missouri, in McFarland v. Bishop, supra, so held. There is no evidence adduced indicating that there was any notice of any claim for income tax in favor of the United States given or any lien therefor attempted to be asserted while the trustees had in their possession any income from the Graham estate.
In the absence of any such notice or any attempt to fix a lien thereon by proper proceedings, no duty or obligation rested on the trustees, as such, nor on them personally, to withhold from Graham the income, which by the provisions of the trust was to be paid to him monthly.
In considering the nature of the transferee’s liability under section 280 of the Revenue Act of 1926, the construction of the language employed, and reference to its legislative history both indicate that it imposes no new liability upon the transferee and that the nature and extent of his liability is to be determined by *587the settled principles of the common law and Federal and local statutes. In the report of the Senate Finance Committee on the Revenue Act of 1926, Committee Print January 22, 1926, page 30, it is stated, with reference to section 280:
“ It is the purpose of the Committee’s amendment to provide for the enforcement of such liability to the Government by the procedure provided in the act for the enforcement of tax deficiencies. It is not proposed, however, to define or change existing liability. The section merely provides that if the liability of the transferee exists under other law then that liability is to be enforced according to the new procedure applicable to tax deficiencies.” A. H. Graves et al., 12 B. T. A. 124.
Section 3467 of the Eevised Statutes of the United States reads as follows:
Every executor, administrator, or assignee, or other person, who pays any debt due by the person or estate from whom or for which he acts, before he satisfies and pays the debts due to the United States from such person or estate, shall become answerable in his own person and estate for the debts so due to the United States, or for so much thereof as may remain due and unpaid.
The net value of the property transferred to the petitioners in 1916 was approximately $430,000. The trustees as such filed income-tax returns for the trust estate and duly paid all taxes assessed against them as such trustees on account of the income of the trust estate.
Pursuant to the provisions of the trust, Graham, during his lifetime, was paid $132,000. He died leaving property insufficient to pay the expenses of his last sickness and burial. His estate was insolvent.
The petitioners, as trustees or otherwise, paid no debt due by Graham or his estate out of funds or income upon which the United States had any claim or right.
The trustees, petitioners herein, who are sought to be held liable as transferees or fiduciaries for the deficiency in tax assessed against Graham’s estate, are not shown to now have or hold any income or property of said Graham, deceased, or to have so held any such at or since the receipt of any notice of the deficiency in tax claimed by the Commissioner. See Orville Livingston v. Becker, U. S. Dist. Ct., E. Dist. Mo., Oct. 12, 1929; P.-H. Federal Tax Service, Nov. 7, 1929, ¶ 1705, p. 1573.
What the trustees have and hold is not income which belonged to Graham, but the corpus of the estate, which vested in Graham’s children and which is in no way liable for the deficiency in tax assessed against Graham’s administrator.
The burden of proof is on the Commissioner to show that the petitioners, as transferees or fiduciaries, have in their possession or should have in their possession as such, assets or income liable for the payment of the aforesaid deficiencies in tax. Such has not been shown.
*588We are, therefore, of the opinion that the tax deficiencies asserted should not be assessed against the petitioners as trustees or otherwise.
Judgment will be entered for the petitioners. |
4,490,089 | 2020-01-17 22:02:11.314702+00 | Smith | null | *594OPINION.
Smith:
The petitioner alleges that the respondent erred in computing his tax liability^ for the year 1923 in disallowing the deduction claimed on account of a loss upon the sale of buildings, and in including in taxable income the amount of $100,000 received in that year as consideration for the sale of the buildings.
The respondent contends that there was not in fact a sale of the buildings in question which, for income-tax purposes, may be considered a separate and closed transaction resulting in a profit or loss to the owners, but that the purported sale of the buildings and the lease of the premises must be considered as a single transaction. He contends that the $100,000 received from the lessee in the year 1923 is in the nature of a cash bonus paid for the leasehold.
We think that the respondent’s contention must prevail to the extent that the sale of the buildings was not a separate transaction resulting in a loss to the petitioner. The evidence . indicates that the parties themselves, the petitioner and the East Sixty-Third Euclid Co., did not intend a sale of the buildings as a separate transaction from the rental of the land.
In the agreement under which the transaction was completed, that is, the offer and acceptance of June 16, 1923, the East Sixty-Third Euclid Co. offered first “ to enter into a ninety-nine year lease for the property owned and controlled by you at the corner of East 63rd Street and Euclid Avenue upon the terms and conditions of the lease hereto attached,” and to pay in addition to the rents specified in the lease $100,000 for the buildings on the premises. The lease referred to, parts of which are shown above, provided that the lessor should have a lien on the buildings for the payment of rents and that the lessee would keep the buildings insured for the benefit of the lessor, and that at the expiration of the lease the buildings would revert to the lessor. The lessee was not privileged to remove the buildings without giving bond to the lessor in the amount of $150,000 to guarantee the construction of other buildings upon the premises at a cost of not less than $200,000., In other respects the lease appears to conform to the usual and ordinary type of long-term lease of similar property. It is not shown that any deed or other instrument of conveyance was ever executed in respect to the buildings.
The facts here seem indistinguishable from those in Minneapolis Syndicate, 13 B. T. A. 1303. In that case the petitioner owned certain real estate in Minneapolis, Minn., and—
*595On December 27, 1906, petitioner executed and delivered to Richard M. Bradley, Arthur Lyman and Russell Tyson, trustees, a warranty deed in regular form to the improvements known as the Syndicate Block and situated on the westerly half of block 87 of the City of Minneapolis. This deed evidenced receipt of “one.dollar and other good and valuable considerations.” One recital of this deed was :
This deed is made contemporaneously, and as a part of one transaction, with the execution and delivery by the party of the first part to the parties of the second part of a ground-lease of the lands above described for a term of one hundred and thirty (180) years, from the first day of January, 1907, to and including the 31st day of December, 2036.
On the same date petitioner, as lessor, and these three trustees mentioned, as lessees, executed an indenture whereby the use of the westerly one-half of block 87, referred to above, was demised to the lessees for a period of 130 years from that date, in return for considerations stated to be (a) the purchase of the building by the lessees under the deed referred to, (b) an agreement to pay a yearly rental of $61,000 during the term of the lease, and (c) various covenants binding the lessees to pay all taxes and public charges; to keep the property free of liens; to keep the building fully insured for the benefit of the lessor, the proceeds in case of destruction to be used for replacing it; to keep the premises in repair, and if demolished by lessee, then to replace with a building of a value of not less than $500,000; and, finally, to return the premises at the conclusion of the lease term with improvements maintained, or reconstructed as agreed upon, and with a then value of not less than $500,000, these improvements to be the absolute property of the lessor.
The foregoing is taken from our findings of fact in that case. The respondent was there contending that the sale of the building and the lease of the land were separate and distinct transactions and that since the petitioner sold the building, which on its books represented a cost of $640,000, for $250,000 cash, it thereby sustained a loss of $390,000, and invested capital was accordingly reduced by that amount. We held that the transaction was in fact, in so far as it affected the petitioner’s liability, a lease of the entire property, including the land and building, for a cash consideration of $250,000 and a yearly rental of $61,000. In our opinion we said:
However, on examination of the deed and lease executed on December 27, 1906, and consideration of all the circumstances of the transaction carried into effect thereby, we are convinced that these can not be considered as two transactions with a separate and individual loss or gain in each as the case may be. We are unable to accept respondent’s theory of a loss incurred when the transaction shows a result entirely inconsistent with such conclusion. * * *
In the transaction in question this petitioner received $250,000 in cash, a fixed net income of $61,000 per year for a term of 130 years, and a reversion of the property at the end of that time, and the total cost to petitioner of the property involved was $836,229.04. The value alone of the net income contracted for, capitalized at 6 per cent, was in excess of $1,000,000, and yet we are asked to conclude that a loss of $390,000 was sustained.
*596Petitioner insists that the deed and lease executed on December 27, 1906, were, merely incidents of one transaction in which it disposed of the use of its property for the term of 130 years for a cash payment of $250,000 and an annual rental of $61,000 per year.
It is an unquestioned rule of construction that two instruments executed in carrying out the same transaction must be read and construed together in determining the intent of the parties, and that such intent will be given effect irrespective of the particular names given the individual instruments by the parties or the particular form in which they are drawn. Fidelity Trust Co. v. McKeithan Lumber Co., 212 Fed. 229; O’Neil v. Caples, 257 Ill. 528; 101 N. E. 50; Huylers v. Ritz Carlton Restaurant & Hotel Co., 1 Fed. (2d) 491; Lewis v. Curnutt, 130 Iowa 423; 106 N. W. 914; Crabtree v. Crabtree, 136 Iowa 430; 113 N. W. 923; Jacobs v. All Persons, etc., 12 Cal. App. 163; 106 Pac. 896; Metropolitan Securities Co. v. Ladd, 173 Fed. 269.
* # . * * * # %
In the case before us it can not be questioned that these two instruments were executed as parts of one single transaction. Both instruments by express recital bear witness to this fact. The execution of the deed and the payment of $250,000 cash is expressly stated by the lease to be one of the considerations for its execution.. We must, under the rule of const, uction laid down, construe these instruments as if they were one, and the ultimate interest received by the grantees under both, so construed, must be considered as represented by the total of the considerations received under each by petitioner.
* sis * * * * *
By this transaction petitioner has, in fact, only surrendered the use and occupancy of its property for a term of 130 years, at the end of which time it will stand possessed of it again. The total consideration to it for this transaction was $250,000 cash and a yearly rental of $61,000. The identical result, in so far as benefits and ultimate interest received are concerned, would have been effected by the execution of a lease to land and buildings, with the same privileges and restrictions stated, for a cash bonus of $250,000 and a yearly rental of $61,000 * * *.
In the instant case the petitioner’s beneficial interest resulting from the transaction was substantially the same as if he had executed a similar lease of the entire property for a term of 99 years for a cash consideration of $100,000 and yearly rentals as stipulated in the lease. We conclude, therefore, that the petitioner did not sustain a deductible loss upon the sale of his interest in the buildings in question in the taxable year 1923. Nor is there evidence upon which we can determine that a loss was sustained upon the transaction as a whole. We do not know the cost to the petitioner of his interest in the land exclusive of the buildings or the fair rental value of the land at the time the transaction was made.
In Minneapolis Syndicate, supra, we did not decide the question of the taxpayer’s liability for income tax upon the cash consideration for the lease in the year when received, since the transaction occurred in a year prior to any taxable period under consideration. In the case at bar the cash consideration was received by the petitioner during the taxable year under consideration and the petitioner alleges *597that the respondent has erroneously included the amount thereof in his income of that year. Section 213(a) of the Revenue Act of 1921 provides in part that gross income—
includes gains, profits, and income derived from salaries, wages, or compensation for personal service * * * of whatever kind and in whatever form paid, or from professions, vocations, trades, businesses, commerce, or sales, or dealings in property, whether real or personal, growing out of the ownership or use of or interest in such property; also from interest, rent, dividends, securities, or the transaction of any business carried on for gain or profit, or gains or profits and income derived from any source whatever. The amount of all such items (except as provided in subdivision (e) of section 201) shall be included in the gross income for the taxable year in which received by the taxpayer, unless, under methods of accounting permitted under subdivision (b) of section 212, any such amounts are to be properly accounted for as of a different period * * *.
Regardless of the method of accounting employed by the petitioner, which is not shown in the evidence before us, we think that $75,000 (three-fourths) of the $100,000 received by him from the lessee in the year 1923 is taxable income to him and his wife in that year.
Judgment will be entered under Bule BO. |
4,669,346 | 2021-03-19 00:00:29.554385+00 | null | http://www.ca5.uscourts.gov/opinions/unpub/20/20-10616.0.pdf | Case: 20-10616 Document: 00515786530 Page: 1 Date Filed: 03/18/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
March 18, 2021
No. 20-10616 Lyle W. Cayce
Summary Calendar Clerk
United States of America,
Plaintiff—Appellee,
versus
Joydeth Robinson,
Defendant—Appellant.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:19-CR-269-1
Before Clement, Higginson, and Engelhardt, Circuit Judges.
Per Curiam:*
Joydeth Robinson pleaded guilty, pursuant to a plea agreement, to one
count of sexual exploitation of children. Her offense of conviction involved
the production of an image of one of her minor daughters posed in a lewd and
lascivious manner. As part of the plea agreement, the Government dismissed
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
Case: 20-10616 Document: 00515786530 Page: 2 Date Filed: 03/18/2021
No. 20-10616
an additional count of sexual exploitation of children involving her other
minor daughter.
On appeal, Robinson challenges the portion of the presentence report
(PSR) that included a “pseudo count” and multiple count enhancement
under U.S.S.G. §§ 2G2.1(d)(1) and 3D1.4 for the conduct related to the
dismissed count. She did not object in the district court, so we review for
plain error. United States v. Randall,
924 F.3d 790
, 795-96 (5th Cir. 2019).
We pretermit whether Robinson has shown an error that was clear or
obvious under Randall because she has failed to demonstrate that any error
affected her substantial rights. See United States v. King,
979 F.3d 1075
, 1081-
82 (5th Cir. 2020). With the multiple count enhancement and a three-level
reduction for acceptance of responsibility, the PSR calculated Robinson’s
total offense level as 44, which was reduced to 43 by U.S.S.G. Ch. 5, Pt. A,
cmt. n.2. Absent the multiple count enhancement, Robinson’s total offense
level is 42. But in both cases, the advisory guidelines sentence remains
unchanged at 360 months of imprisonment because the statutory maximum
term of imprisonment applies. See U.S.S.G. §5G1.1(a); King, 979 F.3d at
1081-82. Thus, the guidelines range is unaffected by the error, and Robinson
has otherwise failed to show any effect on her substantial rights or a
miscarriage of justice. See King, 979 F.3d at 1083.
The judgment is AFFIRMED.
2 |
4,669,347 | 2021-03-19 00:00:30.338391+00 | null | http://www.ca5.uscourts.gov/opinions/unpub/19/19-30575.0.pdf | Case: 19-30575 Document: 00515786408 Page: 1 Date Filed: 03/18/2021
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
March 18, 2021
No. 19-30575 Lyle W. Cayce
Clerk
Nancy Smith,
Plaintiff—Appellee,
versus
Kyle France, in his official capacity as chief executive of the Board of
Commissioners of the Louisiana Stadium and Exposition District; SMG,
Defendants—Appellants.
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:17-CV-7267
Before Jones, Elrod, and Higginson, Circuit Judges.
Per Curiam:*
Nancy Smith sued Kyle France, chief executive of the Louisiana
public entity that owns the Mercedes Benz Superdome in New Orleans, and
SMG, the company that operates the Superdome, for violations of the
Americans with Disabilities Act and the Louisiana Human Rights Act.
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
Case: 19-30575 Document: 00515786408 Page: 2 Date Filed: 03/18/2021
No. 19-30575
France and SMG appeal from the award of injunctive relief and damages to
Smith. Because Smith has standing to pursue her claims, and because the
district court did not err in awarding both injunctive relief and money
damages against SMG, we AFFIRM. However, we VACATE the
injunction against France.
I.
When Nancy Smith and her daughter learned that Guns N’ Roses
would perform at the Mercedes Benz Superdome in New Orleans as part of
their “Not in this Lifetime . . .” tour, they decided they had to go. 1 Smith
was a Guns N’ Roses fan, and she had attended events at the Superdome
between ten and fifteen times in the past.
Smith and her daughter bought tickets from what they thought was
the Superdome’s box office. In fact, they had bought the tickets from Box
Office Ticket Center LLC, an unauthorized third-party vendor. Smith and
her daughter also thought they had bought tickets for wheelchair-accessible
seats to accommodate Smith’s left-leg amputation. They had not.
The Louisiana Stadium and Exposition District, a state governmental
entity, owns the Superdome. Kyle France is the chief executive of the Board
1
The name of the tour comes from lead singer Axel Rose’s 2012 response to the
question whether he was planning a reunion tour with all of Guns N’ Roses. “Rose simply
said, ‘Not in this lifetime,’ before getting into the passenger sear [of his car], closing the
door and being driven away.” Dave Lifton, Why are Guns N’ Roses Calling it the ‘Not in this
Lifetime . . .’ Tour?, Ultimate Classic Rock, (April 2, 2016),
https://ultimateclassicrock.com/guns-n-roses-not-in-this-lifetime-tour/; see also Daniel
Kreps, Guns N’ Roses Confirm North American Tour, Rolling Stone (Mar. 25, 2016, 5:33
PM), https://www.rollingstone.com/music/music-news/guns-n-roses-confirm-north-
american-tour-182833/.
2
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No. 19-30575
of Commissioners of that government entity. SMG, a general partnership,
operates and manages the Superdome by contract.
When Smith and her daughter arrived at the Superdome for the Guns
N’ Roses concert, an SMG employees showed them to their seats. Smith’s
seat was not wheelchair accessible. Rather, her seat was an ordinary folding
chair, surrounded on all sides by ordinary folding chairs.
Smith asked the SMG employee to remove the folding chair in her
space to make room for her wheelchair. The SMG employee refused.
Instead, the SMG employee offered to move Smith to the aisle seat, to take
Smith’s wheelchair after she had taken her seat, and to return it at the end of
the concert. The SMG employee did not mention to Smith the option of
transferring to a wheelchair accessible seat.
Thinking she had no other option, Smith accepted the SMG
employee’s offer, gave her wheelchair to the SMG employee, and stayed in
the folding-chair seat with her backup crutches. Without her wheelchair,
Smith felt anxious and vulnerable. She remained seated in the folding chair
throughout the concert, so she could not see the band through the
concertgoers standing around her.
Smith sued SMG and the Louisiana Stadium and Exposition District
and its Chief Executive Kyle France, seeking damages and injunctive relief
under Titles II and III of the Americans with Disabilities Act and the
Louisiana Human Rights Act. 2 The parties filed cross motions for summary
judgment on all claims.
2
Smith’s initial claims were against SMG, the Louisiana Stadium and Exhibition
District Board of Commissioners, Kyle France in his official capacity as the Chief Executive
of the Louisiana Stadium and Exhibition District Board of Commissioners, Live Nation
Marketing, Inc., Live Nation Mtours (USA), Inc., Live Nation Worldwide, Inc., and Box
3
Case: 19-30575 Document: 00515786408 Page: 4 Date Filed: 03/18/2021
No. 19-30575
The district court determined that Smith had standing to sue on her
claims. It also held that the Louisiana Stadium and Exposition District was
protected by sovereign immunity from all of Smith’s claims and that France
was protected by sovereign immunity from Smith’s claims for damages. The
district court granted partial summary judgment as to those claims and
denied summary judgment in all other respects.
This appeal concerns the three claims that remained at the time of
trial: (i) a claim against France as a public officer for injunctive relief under
Title II of the ADA; (ii) a claim against SMG for injunctive relief under Title
III of the ADA; and (iii) a claim against SMG for damages under the
Louisiana Human Rights Act. See
42 U.S.C. §§ 12133
, 12188;
La. Stat. Ann. § 51:2231
et seq.
The district court conducted a bench trial. After the conclusion of the
trial, the district court entered judgment in favor of Smith on all remaining
claims. The district court awarded Smith $20,000 in compensatory damages
from SMG and entered injunctions against both France and SMG under
Titles II and III of the ADA respectively. In short, the injunctions required
France and SMG to update employee policies and procedures, provide
annual trainings and quality controls, and publish accessibility information
publicly. SMG and France filed a timely notice of appeal.
Office Ticket Center, LLC. However, through an amended complaint and two motions,
Smith voluntarily dismissed Live Nation Marketing, Inc., Live Nation Mtours (USA), Inc.,
Live Nation Worldwide Inc., and Box Office Ticket Center, LLC. Smith also dismissed
her claims under the Rehabilitation Act and her claims for damages under the Louisiana
Human Rights Act against the Louisiana Stadium and Exhibition District and France.
4
Case: 19-30575 Document: 00515786408 Page: 5 Date Filed: 03/18/2021
No. 19-30575
II.
On appeal, SMG and France challenge the district court’s judgment
in favor of Smith following the bench trial. Specifically, SMG and France
argue that:
(1) the district court erred in granting Smith injunctive relief because
she failed to establish the required standing;
(2) in the alternative, to the extent that Smith did establish standing
and was entitled to seek such relief, the relief ordered was an abuse of the
district court’s discretion; and
(3) the district court erred in holding that Smith proved a violation of,
and was entitled to money damages under, the Louisiana Human Rights Act;
or
(4) in the alternative, if Smith were entitled to damages, the district
court’s award was excessive.
“The standard of review for a bench trial is well established: findings
of fact are reviewed for clear error and legal issues are reviewed de novo.”
Water Craft Mgmt. LLC v. Mercury Marine,
457 F.3d 484
, 488 (5th Cir. 2006)
(quoting In re Mid-South Towing Co.,
418 F.3d 526
, 531 (5th Cir. 2005)).
“Reversal for clear error is warranted only if the court has ‘a definite and firm
conviction that a mistake has been committed.’”
Id.
(quoting Canal Barge
Co. v. Torco Oil Co.,
220 F.3d 370
, 375 (5th Cir. 2000)).
We review permanent injunctions for abuse of discretion. Ball v.
LeBlanc,
792 F.3d 584
, 598 (5th Cir. 2015). “An abuse of discretion occurs
when the district court ‘(1) relies on clearly erroneous factual findings when
deciding to grant or deny the permanent injunctions[,] (2) relies on erroneous
conclusions of law when deciding to grant or deny the permanent injunction,
or (3) misapplies the factual or legal conclusions when fashioning its
5
Case: 19-30575 Document: 00515786408 Page: 6 Date Filed: 03/18/2021
No. 19-30575
injunctive relief.’”
Id.
(alteration in original) (quoting Symetra Life Ins. Co. v.
Rapid Settlements, Ltd.,
775 F.3d 242
, 254 (5th Cir. 2014)).
A.
We agree with the district court that Smith had standing to pursue her
claims for injunctive relief under the ADA. The case-or-controversy
requirement of Article III restricts federal jurisdiction to cases in which the
plaintiff “(1) suffered an injury in fact, (2) that is fairly traceable to the
challenged conduct of the defendant, and (3) that is likely to be redressed by
a favorable judicial decision.” Spokeo Inc. v. Robins,
136 S. Ct. 1540
, 1547
(2016) (citing Lujan v. Defenders of Wildlife,
504 U.S. 555
, 560–61 (1992)); see
also Sierra Club v. U.S. Env’t Prot. Agency,
939 F.3d 649
, 664 (5th Cir. 2019).
To satisfy the redressability requirement in the context of claims for
injunctive relief, it is not enough that the plaintiff has been wronged in the
past—there must be a “real or immediate threat that the plaintiff will be
wronged again.” City of Los Angeles v. Lyons,
461 U.S. 95
, 111 (1983).
Nevertheless, “a disabled individual” seeking an injunction under the ADA,
“need not engage in futile gestures before seeking an injunction; the
individual must show only that [the alleged violation] actually affects his
activities in some way.” Frame v. City of Arlington,
657 F.3d 215
, 236 (5th
Cir. 2011).
Smith testified that, if the ADA issues were resolved, she would
return to the Superdome when it hosts another event that interests her. Cf.
Sierra Club, 939 F.3d at 664. Based on her history with the Superdome,
Smith’s plans to return are far more than “some day intentions.” See Lujan,
405 U.S. at 564. Smith has visited the Superdome ten to fifteen times in her
life. By contrast, in Deutsch v. Travis County Shoe Hospital, Inc., “the most
interaction [the plaintiff] ever had with the defendant was to look at the
business’s parking lot from his car.” 721 F. App’x 336, 340 (2018). As a
6
Case: 19-30575 Document: 00515786408 Page: 7 Date Filed: 03/18/2021
No. 19-30575
lifelong patron of the Superdome, Smith has shown far more engagement
with the defendant than plaintiffs who lack standing.
Moreover, Smith has already made plans to attend an event at another
SMG-operated property, the Smoothie King Center in New Orleans. Smith,
however, cancelled those plans out of fear that what occurred at the Guns N’
Roses concert would happen again. A similar future injury at the Superdome
is far from speculative given Smith’s history and her firm intent to return.
This is enough to establish standing. See Friends of the Earth, Inc. v. Laidlow
Env’t Servs. (TOC), Inc.,
528 U.S. 167
, 182-83 (2000) (determining that
members’ firm intentions to use a portion of a river, should illegal dumping
cease, “adequately document injury in fact”).
B.
SMG and France maintain that even if Smith does have standing to
seek injunctive relief, the district court abused its discretion as to the
appropriateness and, or, scope of the relief it granted. Specifically, they argue
that the district court’s order: (1) is unnecessary under the circumstances and
unsupported by the record; (2) does not identify specific actions France
should take, or refrain from taking, to maintain compliance with the order;
and (3) fails to specify actions by France that violated the ADA.
SMG and France are simply incorrect to say that the injunction is
“unnecessary and unsupported by the record.” SMG does not currently
implement the measures required by the injunction, and the district court did
not “misappl[y] [its] factual . . . conclusions when fashioning its injunctive
relief.” Ball, 792 F.3d at 598 (quoting Symetra Life Ins. Co., 775 F.3d at 254).
The district court did not abuse its discretion by granting an injunction
against SMG.
We agree with France, however, that the injunction against him is not
sufficiently specific for France to “know what the court intends to require
7
Case: 19-30575 Document: 00515786408 Page: 8 Date Filed: 03/18/2021
No. 19-30575
and what it means to forbid.” See Int’l Longshoremen’s Ass’n v. Phila. Marine
Trade Ass’n,
389 U.S. 64
, 76 (1967). The district court’s order mandated that
SMG and France must, among other things: (1) revise SMG’s Team Member
Playbook to include language for a Ticket Exchange Policy; (2) revise SMG’s
Team Member Playbook to include language for a Wheelchair Storage Policy,
(3) add the Ticket Exchange and Wheelchair Storage policies to the SMG
training PowerPoint slides; and (4) ensure all new SMG ushers, existing
staffers, and new hires participate in an annual group training to better
understand how to implement the new policies. Each of these actions
pertains to conduct directly within the control of SMG—it is plain what
SMG must do to comply. The injunction does not make clear, however, how
France can comply with an order against SMG. The district court abused its
discretion by not identifying “what the court intends to require and what it
means to forbid” as to France.
Id.
The injunction as it applies to France
must be vacated.
Because we vacate the injunction against France on this ground, we
need not address France’s argument that Smith failed to show that France
himself violated the ADA.
C.
SMG maintains that the district court erred in concluding that Smith
proved a violation of the Louisiana Human Rights Act. SMG asserts that the
Louisiana Human Rights Act requires a plaintiff to prove intentional
discrimination to establish a violation and that Smith failed to do so. We
disagree with SMG’s reading of the Act.
The Louisiana Supreme Court has not conclusively determined the
state of mind required to establish discrimination by a place of public
accommodation under the Louisiana Human Rights Act, and so we must
8
Case: 19-30575 Document: 00515786408 Page: 9 Date Filed: 03/18/2021
No. 19-30575
make an “Erie guess.” See
La. Stat. Ann. § 51:2247
; Conn Credit I, L.P. v.
TF LoanCo III, L.L.C.,
903 F.3d 493
, 502 (5th Cir. 2018).
We note first that the Louisiana Human Rights Act explicitly requires
“intent” to establish employment discrimination, but not discrimination by
places of public accommodation. Compare
La. Stat. Ann. §§ 51:2232
(5),
51:2247, with
id.
§§ 51:2232(4), 23:332. The Louisiana legislature clearly
knows how to require intent for discrimination, but it apparently chose not to
do so for places of public accommodation.
Further, the Louisiana Human Rights Act explicitly references federal
antidiscrimination law in its statement of purpose. See id. § 51:2331. Both
section 51:2247 and ADA Title III ban discrimination by places of public
accommodation, and so it is reasonable to look to Title III for guidance. See
42 U.S.C. § 12182
;
La. Stat. Ann. § 51:2247
. Title III does not require a
plaintiff to show intent to establish a violation.
42 U.S.C. § 12182
.
On our reading of the statute, the Louisiana Human Rights Act does
not require a plaintiff alleging discrimination by a place of public
accommodation to show intentional discrimination.
La. Stat. Ann. §§ 51:2232
(5), 51:2247. As a result, the district court properly held that
Smith established a violation under the Louisiana Human Rights.
D.
Finally, SMG asserts that even if it were liable to Smith under the
Louisiana Human Rights Act, the damages award was excessive. We
disagree.
Smith sought to recover both nominal and compensatory damages for
emotional distress suffered as a result of SMG’s actions at the Guns N’ Roses
concert. The district court determined that Smith did in fact suffer anxiety
and distress as a result of SMG’s actions and was entitled to money damages.
9
Case: 19-30575 Document: 00515786408 Page: 10 Date Filed: 03/18/2021
No. 19-30575
Upon its finding that Smith’s daughter’s testimony corroborated her claims,
the district court awarded Smith $20,000 in compensatory damages for
emotional distress. Because it awarded compensatory damages, the district
court concluded that an award of nominal damages was not necessary.
We have previously held that an “award of compensatory damages [is]
within the [district] court’s discretion.” Migis v. Pearle Vision, Inc.,
135 F.3d 1041
, 1047 (5th Cir. 1998). The district court may rely solely on the plaintiff’s
testimony to establish mental anguish damages, and that testimony can be
based on “testimony of anxiety [and] stress.”
Id.
at 1046–47. Our review of
the record reveals that the district court’s monetary award was neither
excessive nor an abuse of its discretion.
* * *
The judgment of the district court is AFFIRMED as to the
injunctive relief and damages award against SMG. The injunction against
France is VACATED.
10 |
4,669,348 | 2021-03-19 00:00:30.759011+00 | null | http://www.ca5.uscourts.gov/opinions/pub/19/19-30316-CV0.pdf | Case: 19-30316 Document: 00515786923 Page: 1 Date Filed: 03/18/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
March 18, 2021
No. 19-30316
Lyle W. Cayce
Clerk
David Franco,
Plaintiff—Appellant,
versus
Mabe Trucking Company, Incorporated; Richard Agee;
National Interstate Insurance Company,
Defendants—Appellees.
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 5:17-CV-871
Before King, Jones, and Dennis, Circuit Judges.
James L. Dennis, Circuit Judge:
David Franco sued Mabe Trucking Co. (“Mabe”) in the United
States District Court for the Eastern District of Texas after Franco’s car
accident with a truck owned by Mabe and operated by a Mabe employee. The
car-truck mishap had occurred in Louisiana a few miles from its border with
Texas. The Texas federal district court concluded that Mabe lacked
sufficient contacts with Texas to subject the company to personal jurisdiction
in the state. However, the court found that it was in the interests of justice
not to dismiss the case and instead transferred it to the United States District
Case: 19-30316 Document: 00515786923 Page: 2 Date Filed: 03/18/2021
No. 19-30316
Court for the Western District of Louisiana, the federal district court sitting
in the district in which the accident occurred. But the Louisiana federal
district court concluded that Franco’s claims were untimely and granted
summary judgment for Mabe. For the following reasons, we REVERSE and
REMAND.
I.
On November 24, 2015, Franco was involved in a vehicular accident
with a truck owned by Mabe and operated by Mabe’s employee. The
accident occurred in Louisiana, three miles from the Texas border. Franco
filed suit against Mabe in the Eastern District of Texas on November 22,
2016, two days before the one-year anniversary of the accident, and Franco
served Mabe on January 20, 2017. Finding that it lacked personal jurisdiction
over Mabe due to Mabe’s lack of significant contacts with Texas, the Texas
federal district court transferred the case to the Western District of
Louisiana, which would likely have possessed specific jurisdiction under the
Louisiana long-arm statute to try claims against Mabe related to the accident
because the court sat within the district in which the accident occurred. 1 See
1
Federal Rule of Civil Procedure 4(k)(1)(a) provides that “[s]erving a summons or
filing a waiver of service establishes personal jurisdiction over a defendant . . . who is subject
to the jurisdiction of a court of general jurisdiction in the state where the district court is
located.” The Louisiana long-arm statute establishes the jurisdiction of Louisiana courts
over nonresidents, and it provides, as relevant here:
A. A court may exercise personal jurisdiction over a nonresident, who acts
directly or by an agent, as to a cause of action arising from any one of the
following activities performed by the nonresident:
....
(3) Causing injury or damage by an offense or quasi offense
committed through an act or omission in this state.
LA. STAT. ANN. § 13:3201. Ultimately, however, we need not further examine whether
the Louisiana district court would have had personal jurisdiction over Mabe had Mabe not
2
Case: 19-30316 Document: 00515786923 Page: 3 Date Filed: 03/18/2021
No. 19-30316
Burger King Corp. v. Rudzewicz,
471 U.S. 462
, 472 (1985) (noting that a
court’s exercising specific jurisdiction over an out-of-state defendant is
constitutional when a suit arises out of the defendant’s contacts with the
forum state). The Texas district court magistrate judge explained: “Because
the Court lacks personal jurisdiction over [Mabe], and hence venue under
§ 1391(b)(1) is improper, the Court finds it suitable in the ‘interests of
justice’ to transfer the case to the Western District of Louisiana, the district
where the accident occurred. See
28 U.S.C. § 1406
(a).” 2
Mabe moved for summary judgment in the Louisiana district court,
arguing that Franco’s claims had prescribed under Louisiana law. 3 See LA.
CIV. CODE arts. 3492, 3462. Louisiana Civil Code Article 3492 establishes
a one-year prescriptive period for delictual actions like the one Franco
brought against Mabe. Article 3462 provides that prescription is interrupted
when a party files suit “in a court of competent jurisdiction and venue”; if a
party files suit in a court of incompetent jurisdiction or improper venue,
however, prescription is interrupted “only as to a defendant served by
process within the prescriptive period.” LA. CIV. CODE art. 3462. Mabe
argued that Franco’s claims were prescribed because he filed suit in the
Texas district court, which was an incompetent court, and failed to serve
Mabe within the one-year prescriptive period.
consented because Mabe does not challenge it and, unlike with subject-matter jurisdiction,
objections to personal jurisdiction may be waived. Shirley v. Maxicare Texas, Inc.,
921 F.2d 565
, 568 (5th Cir. 1991).
2
Neither party disputes the Texas federal district court’s determination that,
under federal law, the Eastern District of Texas was an improper venue without personal
jurisdiction over Mabe.
3
Federal courts apply Louisiana prescription law to diversity actions which
Louisiana law governs, as “state statutes of limitations are considered substantive for
purposes of Erie analysis.” Vincent v. A.C. & S., Inc.,
833 F.2d 553
, 555 (5th Cir. 1987).
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The Western District of Louisiana court initially denied Mabe’s
motion, concluding that
28 U.S.C. § 1631
rendered Franco’s claims timely.
Under § 1631, when a federal “court finds that there is a want of jurisdiction”
and that a transfer would be “in the interest of justice,” “the court . . . shall
transfer” the action to another court “in which the action could have been
brought” and the transferred action “shall proceed as if it had been filed in .
. . the court to which it was transferred . . . on the date it was actually filed in
. . . the court from which it was transferred.” The Louisiana district court
concluded that the transfer from the Texas district court was a § 1631 transfer
in “all but name,” and therefore the case must be treated “as if” it had been
filed in the Western District of Louisiana on November 22, 2016, which is
within Louisiana’s one-year prescriptive period.
On Mabe’s motion for reconsideration, however, a different presiding
judge of the Louisiana district court reversed the ruling. The court reasoned
that § 1631 was not intended to govern prescription and that Article 3462 is a
substantive Louisiana law that controlled the diversity action under the
doctrine of Erie Railroad Co. v. Tompkins,
304 U.S. 64
, (1938). The court
therefore concluded that Franco’s claims were prescribed, entered judgment
for Mabe, and dismissed Franco’s claims with prejudice. This appeal
followed.
II.
We must first determine whether the Eastern District of Texas
properly transferred the case to the Western District of Louisiana pursuant
to § 1631, or whether the transfer was effectuated under some other
provision. If the case was not transferred under § 1631, then that statute’s
interaction with Louisiana’s prescriptive period is not at issue here. If the
case was transferred pursuant to § 1631, however, we must next evaluate
§ 1631’s interaction with Louisiana law to determine whether the Louisiana
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federal district court properly granted Mabe summary judgment on the basis
that Franco’s claims are prescribed. We review a district court’s grant of
summary judgment and issues of statutory interpretation de novo. Romero v.
City of Grapevine,
888 F.3d 170
, 175 (5th Cir. 2018); In re Glenn,
900 F.3d 187
, 189 (5th Cir. 2018).
A.
1.
We first address whether § 1631 permits a district court to transfer a
case for lack of personal, as opposed to subject-matter, jurisdiction. Mabe
argues that § 1631 permits transfer only when a court lacks subject-matter
jurisdiction. Our court has not yet had occasion to decide this question. See
Bentz v. Recile,
778 F.2d 1026
, 1028 n.5 (5th Cir. 1985) (noting the issue but
explaining that we need not reach it).
“The task of statutory interpretation begins and, if possible, ends with
the language of the statute.” Trout Point Lodge, Ltd. v. Handshoe,
729 F.3d 481
, 486 (5th Cir. 2013). “When the language is plain, we ‘must enforce the
statute’s plain meaning, unless absurd.’”
Id.
(quoting In re Nowlin,
576 F.3d 258
, 261-62 (5th Cir. 2009)); see also BedRoc Ltd. v. United States,
541 U.S. 176
, 183 (2004) (“The preeminent canon of statutory interpretation requires
us to ‘presume that the legislature says in a statute what it means and means
in a statute what it says there.’” (alteration omitted) (quoting Conn. Nat’l
Bank v. Germain,
503 U.S. 249
, 253-54 (1992))).
Section 1631 states:
Whenever a civil action is filed in a court as defined in section
610 of this title . . . and that court finds that there is a want of
jurisdiction, the court shall, if it is in the interest of justice,
transfer such action or appeal to any other such court . . . in
which the action or appeal could have been brought at the time
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it was filed . . ., and the action or appeal shall proceed as if it
had been filed in . . . the court to which it is transferred on the
date upon which it was actually filed in . . . the court from which
it is transferred.
28 U.S.C. § 1631
.
The text does not confine itself to personal or subject-matter
jurisdiction, but instead “a want of jurisdiction” generally. Black’s Law
Dictionary defines “want of jurisdiction” to encompass a lack of subject-
matter jurisdiction or a lack of personal jurisdiction. See WANT OF
JURISDICTION, Black’s Law Dictionary (11th ed. 2019) (“A court’s lack of
power to act in a particular way or to give certain kinds of relief. A court . . .
may lack authority over a person or the subject matter of a lawsuit . . . .”).
The entry for “jurisdiction” also includes sub-entries for both subject-matter
jurisdiction (“Jurisdiction over the nature of the case and the type of relief
sought”) and personal jurisdiction (“A court’s power to bring a person into
its adjudicative process”). See JURISDICTION, Black’s Law Dictionary
(11th ed. 2019). Moreover, Congress used “subject-matter jurisdiction”
elsewhere in Title 28 and could have similarly restricted § 1631’s ambit if it
so wished. See, e.g.,
28 U.S.C. § 1390
(a) (“[T]he term ‘venue’ refers to the
geographic specification of the proper court or courts for the litigation of a
civil action that is within the subject-matter jurisdiction of the district courts
in general.”); Lozano v. Montoya Alvarez,
572 U.S. 1
, 16 (2014) (explaining
that when legislators did not adopt “obvious alternative” language, “the
natural implication is that they did not intend” the alternative). Accordingly,
the plain text of § 1631 indicates that it permits a district court to transfer an
action when it lacks subject-matter jurisdiction, personal jurisdiction, or
both.
The decisions of our sister circuits confirm that the term
“jurisdiction” in § 1631 encompasses both personal and subject-matter
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jurisdiction: The First and Sixth Circuits so held after squarely confronting
the question. See Fed. Home Loan Bank of Bos. v. Moody’s Corp.,
821 F.3d 102
,
114 (1st Cir. 2016), abrogated on other grounds by Lightfoot v. Cendant Mortg.
Corp.,
137 S. Ct. 553
(2017); Roman v. Ashcroft,
340 F.3d 314
, 328 (6th Cir.
2003). The Ninth, Tenth, and Eleventh Circuits have implicitly reached the
same conclusion by either employing § 1631 to cure a defect in personal
jurisdiction, directing a district court to consider utilizing the provision to
rectify a lack of personal jurisdiction, or approving such a transfer after it
occurred. See Gray & Co. v. Firstenberg Mach. Co.,
913 F.2d 758
, 761-62 (9th
Cir. 1990) (vacating and remanding to district court to consider transfer
under § 1631 to cure lack of personal jurisdiction); Ross v. Colorado Outward
Bound Sch., Inc.,
822 F.2d 1524
, 1527-28 (10th Cir. 1987) (reviewing case that
was transferred under § 1631 to Colorado district court after New York
district court found it lacked personal jurisdiction); Slatick v. Dir., Office of
Workers’ Comp. Programs, U.S. Dep’t of Labor,
698 F.2d 433
, 434-35 (11th
Cir. 1983) (transferring case to the Third Circuit under § 1631 for lack of
personal jurisdiction). And the Third and Eight Circuits have stated in dicta
that a § 1631 transfer would be proper to cure a lack of personal jurisdiction.
Johnson v. Woodcock,
444 F.3d 953
, 954 n.2 (8th Cir. 2006) (explaining
district court could have transferred action under § 1631 to cure lack of
personal jurisdiction); Island Insteel Sys., Inc. v. Waters,
296 F.3d 200
, 218 n.9
(3d Cir. 2002) (explaining district court would have had authority to transfer
action under § 1631 after finding it lacked personal jurisdiction). In fact,
though a noted treatise cites the statute’s legislative history in counseling for
limiting § 1631 to subject-matter jurisdiction and further states that courts
“are rather evenly divided on the subject,” see Wright & Miller, Relation to
Other Transfer Provisions, 15 Fed. Prac. & Proc. Juris. § 3842 (4th ed.), our
research indicates that only some district courts—and no circuit courts—
have actually adopted the view that § 1631 does not permit a transfer to cure
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a lack of personal jurisdiction. See, e.g., McTyre v. Broward Gen. Med. Ctr.,
749 F. Supp. 102
, 105 (D.N.J. 1990); Levy v. Pyramid Co. of Ithaca,
687 F. Supp. 48
, 51 (N.D.N.Y. 1988); Nose v. Rementer,
610 F. Supp. 191
, 192 n.1 (D.
Del. 1985); c.f. Piazza v. Upjohn Co.,
570 F. Supp. 5
, 8 (M.D. La. 1983)
(concluding that § 1631 authorized a transfer when a state court case was
removed to the wrong district court because “nothing in the language of the
statute, its legislative history or the cases cited . . . indicate[s] that the
Congress intended such a restrictive construction of remedial legislation”).
Thus, it appears no circuit split currently exists on this issue, 4 and
while we cannot predict how those circuits who have left the question open
will ultimately resolve the matter, we decline to now create a split by adopting
an overly restrictive reading of § 1631. Because no amount of legislative
history can defeat unambiguous statutory text, Bostock v. Clayton County,
140 S. Ct. 1731
, 1750 (2020), we join the weight of circuit authority and conclude
that the use of the term “jurisdiction” in § 1631 encompasses both subject-
matter and personal jurisdiction. The statute therefore permits a transfer
when a district court lacks either type of jurisdiction and the other statutory
prerequisites are met.
2.
Because § 1631 permitted the Texas district court to transfer this case
to the Louisiana district court for lack of personal jurisdiction, we next must
determine whether the Texas district court in fact did so. In transferring the
4
The Fourth and Seventh Circuits have noted but declined to decide the issue, In
re Carefirst of Md., Inc.,
305 F.3d 253
, 257 n.2 (4th Cir. 2002); Carpenter-Lenski v. Ramsey,
2000 WL 287651
, at *2 (7th Cir. Mar. 14, 2000); and the Second Circuit has stated in
dictum that “the legislative history of section 1631 provides some reason to believe that this
section authorizes transfers only to cure lack of subject matter jurisdiction.” SongByrd, Inc.
v. Estate of Grossman,
206 F.3d 172
, 179 n.9 (2d Cir. 2000).
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case to the Louisiana district court, the Texas district court explained:
“Because the Court lacks personal jurisdiction over Mabe, and hence venue
under § 1391(b)(1) is improper, the Court finds it suitable in the ‘interests of
justice’ to transfer the case to the Western District of Louisiana, the district
where the accident occurred.” The court cited only
28 U.S.C. § 1406
(a) in
support of this order. In its initial order denying Mabe’s motion for summary
judgment and concluding that Franco’s claim was timely, the Louisiana
district court stated that “[w]hile [the magistrate judge] did not mention
Section 1631 when he transferred the proceeding to this Court, he did find a
want of personal jurisdiction and that the interests of justice warranted the
transfer.” The court concluded, therefore, that the magistrate judge in the
Texas district court “ordered a Section 1631 transfer in all but name.”
We agree with the Louisiana district court that § 1631’s provisions
apply to the transferred case. The statute’s text stipulates that a district court
“shall transfer” any case where it finds jurisdiction lacking and that transfer,
rather than dismissal, would be “in the interest of justice.”
28 U.S.C. § 1631
(emphasis added). In light of the mandatory language, our sister circuits have
approved transfers even when the parties did not move under § 1631 and
where the transferring court did not mention § 1631 in its transfer orders.
See, e.g., Miller v. Hambrick,
905 F.2d 259
, 262 (9th Cir. 1990) (“Although
Miller did not move the district court to transfer the case, we have held that
a motion to transfer is unnecessary because of the mandatory cast of section
1631’s instructions.” (internal quotation marks, citations, and alteration
omitted)); Ross,
822 F.2d at 1527
(10th Cir. 1987) (stating that, where district
court transferred action pursuant to § 1406(a) and, alternatively, under
§ 1404(a), “[t]he correct course, however,. . . was to transfer the action
pursuant to [§ 1631]”); see also Harutyunyan v. Love, No. CV 19-41,
2019 WL 5551901
, at *3-6 (E.D. La. Oct. 28, 2019) (analyzing transfer under § 1631,
though district court cited only § 1406, because of § 1631’s compulsory
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language and because “[i]t [was] clear the [transferring c]ourt considered the
interests of justice”). Here, the Eastern District of Texas concluded that it
lacked jurisdiction over Mabe and that the transfer was in the interests of
justice. Therefore, the provisions of § 1631 apply irrespective of the Texas
district court’s invocation of § 1406(a). 5
B.
Finally, we evaluate whether the Louisiana district court, in its second
ruling, properly granted summary judgment to Mabe on the basis that
Franco’s claim was prescribed. The answer to this question turns entirely on
the interplay between
28 U.S.C. § 1631
and Louisiana’s prescription
provisions.
Under Louisiana law, delictual actions prescribe one year “from the
day injury or damage is sustained.” LA. CIV. CODE art. 3492. Prescription
is interrupted when the plaintiff “commences action . . . in a court of
5
Section 1406(a) permits “[t]he district court of a district in which is filed a case
laying venue in the wrong division or district” to, “if it be in the interest of justice, transfer
such case to any district or division in which it could have been brought.” In Goldlawr, Inc.
v. Heiman,
369 U.S. 463
, 465–66 (1962), which was decided two decades before § 1631 was
enacted, the Supreme Court held that § 1406(a) permits a district court to cure a defect in
venue through a transfer even when the transferor court lacks personal jurisdiction over
the putative defendant. Because, under the terms of
28 U.S.C. § 1391
(b), a district that
lacks personal jurisdiction over a defendant will also generally be an improper venue for an
action against that defendant, Goldlawr indicates that § 1406(a) could generally be utilized
to cure a defect in personal jurisdiction prior to the enactment of § 1631. See also Dubin v.
United States,
380 F.2d 813
, 815 (5th Cir. 1967) (holding that § 1406(a) permitted transfer
anytime there existed an “obstacle to an expeditious and orderly adjudication on the
merits” (cleaned up)). As noted above, however, when Congress enacted § 1631, it
employed mandatory language, stating that a district court “shall transfer” a case pursuant
to its provisions when it lacks jurisdiction and the interests of justice so demand. Thus,
regardless of whether a transfer is conducted under § 1406(a), § 1631’s provisions—
including the requirement that the case “proceed as if it had been filed in . . . the court to
which it is transferred on the date upon which it was actually filed in . . . the court from
which it is transferred”—apply to the transferred case.
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competent jurisdiction and venue.” Id. art. 3462. A plaintiff who files in an
incompetent court or in an improper venue, however, receives the benefit of
interruption only where he or she serves the defendant within the
prescriptive period. Id.
However, when a court utilizes § 1631 to “transfer [an] action . . . to
[a] court . . . in which the action . . . could have been brought at the time it
was filed or noticed[,] . . . the action . . . shall proceed as if it had been filed in
. . . the court to which it is transferred on the date upon which it was actually
filed in . . . the court from which it is transferred.”
28 U.S.C. § 1631
(emphasis added). Section 1631, then, specifies that, after a § 1631 transfer,
the suit is treated “as if” it had been commenced in the receiving court on the
day it was originally filed in the transferor court. Thus, if § 1631 applies,
Franco’s claim must be treated as if it was filed in the Louisiana federal
district court for the Western District—a court of competent jurisdiction—
on the day he filed the claim in the Texas district court. Because that day was
within the one-year prescription period provided by Louisiana Civil Code
Article 3492, prescription will have been interrupted under Louisiana Civil
Code Article 3462, rendering Franco’s claim timely.
Mabe argues on appeal that § 1631 is in direct conflict with Louisiana
Civil Code Article 3462 and that Article 3462 must prevail under the Erie
doctrine because it is a substantive Louisiana law. We do not agree that Erie
requires that result. As the Supreme Court has observed, applying Erie “is
sometimes a challenging endeavor.” Gasperini v. Ctr. for Humanities, Inc.,
518 U.S. 415
, 416 (1996). But we need not wade deeply into the murky Erie
waters to determine that the doctrine of that case does not interfere with a
straightforward application of § 1631 and the Louisiana Civil Code articles.
First, the statute on which the Erie decision was in-part based, the
Rules of Decision Act, provides that “[t]he laws of the several states, except
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where the Constitution or treaties of the United States or Acts of Congress otherwise
require or provide, shall be regarded as rules of decision in civil actions in the
courts of the United States, in cases where they apply.”
28 U.S.C. § 1652
(emphasis added). Interpreting this statute, the Court in Erie declared that
“[t]here is no federal general common law.”
304 U.S. at 78
(emphasis
added). Thus, the Erie analysis is confined to the kind of judge-made federal
practices that might arguably be characterized as common law—practices
that have no source in a federal rule or statute. See Hanna, 380 U.S. at 469-
70 (1965) (stating that the respondent in that case was incorrect to assume
“that the rule of Erie R. Co. v. Tompkins constitute[d] the appropriate test”
because there existed an on-point federal rule that directly controlled the
matter at issue). For example, in Guaranty Trust Co. of New York v. York,
326 U.S. 99
, 111–12 (1945), the Court held that Erie mandated that federal courts
apply state statutes of limitations to state-law claims heard pursuant to the
courts’ diversity jurisdiction and not the federal courts’ own ad hoc notions
of equitable timeliness. And in Gasperini v. Center for Humanities, Inc.,
518 U.S. 415
, 430 (1996), the Court determined that Erie required that a federal
court hearing a claim based in New York law apply New York’s “deviates
materially” standard when determining whether a jury verdict is excessive as
opposed to the traditional federal “shocks the conscious” standard, which is
wholly judge-made and not rooted in any federal rule or statute.
The Erie doctrine is not implicated when a valid federal rule or statute
directly governs the matter at issue. See Hanna, 380 U.S. at 470 (“The Erie
rule has never been invoked to void a Federal Rule.”); Budinich v. Becton
Dickinson & Co.,
486 U.S. 196
, 198 (1988) (“Although state law generally
supplies the rules of decision in federal diversity cases, it does not control the
resolution of issues governed by federal statute.” (internal citation omitted));
see also John Hart Ely, The Irrepressible Myth of Erie,
87 Harv. L. Rev. 693
, 698
(1974). When a valid federal rule or statute is directly controlling, it must be
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applied, for it preempts any contrary state law, rule, or practice under the
normal operation of the Supremacy Clause. 6 Budinich,
486 U.S. at 198
.
Instead of the Erie analysis, the only questions regarding § 1631’s
applicability are the same questions present in any case involving a federal
statute: (1) whether § 1631 falls within the grant of “federal authority
contained in Article I” or another portion of the Constitution, Hanna, 380
U.S. at 471, and (2) whether “the scope of the [statute] in fact is sufficiently
broad to control the issue before the Court.”
7 Walker, 446
U.S. at 749–50.
As to the first question, Mabe does not argue that § 1631 is unconstitutional,
and for good reason. There is little doubt that § 1631 falls within Congress’s
authority to prescribe rules for the operation of federal courts. See Hanna,
380 U.S. at 472 (“[T]he constitutional provision for a federal court system
(augmented by the Necessary and Proper Clause) carries with it
6
Although the Erie doctrine is intended to reduce the “‘inequitable
administration’ of the law” by limiting the scenarios in which the outcome of a case will
vary based on whether the suit is heard in state or federal court, Walker, 446 U.S. at 753
(quoting Hanna, 380 U.S. at 468), this does not obviate federal courts’ obligation to apply
valid, on-point federal law. “Erie and its offspring cast no doubt on the long-recognized
power of Congress to prescribe housekeeping rules for federal courts even though some of
those rules will inevitably differ from comparable state rules.” Hanna, 380 U.S. at 473.
“When, because the plaintiff happens to be a non-resident, [a state] right is enforceable in
a federal as well as in a State court, the forms and mode of enforcing the right may at times,
naturally enough, vary because the two judicial systems are not identic.” Id. (quoting York,
326 U.S. at 108
). Thus, that Franco’s claim would have been handled differently had it
been brought in an incorrect Louisiana state court rather than an incorrect federal court is
not a reason to decline to apply § 1631.
7
Because § 1631 is a statute enacted by Congress and not a procedural rule
promulgated by the Supreme Court pursuant to the Rules Enabling Act,
28 U.S.C. § 2072
,
we need not address whether it complies with the statutory limits set by Congress in the
Rules Enabling Act. See Hana, 380 U.S. at 463-64 (considering whether a Federal Rule of
Civil Procedure exceeded the authority delegated to the Supreme Court under the Rules
Enabling Act by “abridg[ing], enlarg[ing,] or modify[ing] any substantive right” (quoting
28 U.S.C. § 2072
)).
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congressional power to make rules governing the practice and pleading in
those courts, which in turn includes a power to regulate matters which,
though falling within the uncertain area between substance and procedure,
are rationally capable of classification as either.”); Budinich,
486 U.S. at 199
(holding “enactments ‘rationally capable of classification’ as procedural
rules are necessary and proper for carrying into execution the power to
establish federal courts vested in Congress by Article III, § 1” (quoting Hana,
380 U.S. at 472)).
As to the second question, the plain language of the statute governs
when and where Franco’s claim must be considered to have been filed. To
regard Franco’s action as filed on any date other than the day it was filed in
the Texas district court would be to ignore § 1631’s directive that the date of
filing shall be fixed as “the date upon which it was actually filed in . . . the
court from which it is transferred.” And to treat Franco’s claim as if it were
filed in an incompetent court would be to write out § 1631’s mandate that
“the action or appeal shall proceed as if it had been filed in . . . the court to
which it is transferred.” To omit either § 1631’s date-of-filing, place-of-
filing, or manner of proceeding clauses from our reading of the statute would
be contrary to the fundamental rules that “‘we must construe statutes so as
to give meaning to all terms,’ and ‘we cannot accept’ a construction that
renders statutory text ‘mere surplusage.’” Halliburton, Inc. v. Admin. Review
Bd.,
771 F.3d 254
, 264 (5th Cir. 2014) (quoting In re McBryde,
120 F.3d 519
,
525 (5th Cir.1997)).
We accordingly conclude that § 1631, which was specifically designed
to protect federal litigants from the forfeiture that could result from a statute
of limitations running after a plaintiff’s mistakenly filing an action in a court
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that lacks jurisdiction if the interests of justice so demand, 8 see Hempstead
Cty. & Nevada Cty. Project v. E.P.A.,
700 F.2d 459
, 462-63 & n.4 (8th Cir.
1983) (citing S. Rep. No. 97-275 (1982)), neither runs afoul of the Erie
doctrine and the Rules of Decision Act it effectuates nor transgresses
constitutional bounds. Section 1631 is therefore the standard against which
the District Court for the Western District of Louisiana should have
measured whether the action had been timely filed in that court, and its
application must necessarily precede that of the Louisiana Civil Code
articles.
With this conclusion established, it is clear that Mabe is incorrect to
contend that a “direct conflict” exists between § 1631 and Louisiana Civil
Code Articles 3462 and 3492. Section 1631 determines when and where a
transferred suit is deemed to have been filed, and neither Article 3462 nor
Article 3492 says anything about when and where a case should be considered
filed. Instead, the Louisiana Civil Code Articles only instruct a court to look
to when and where a case was filed—the matters set by § 1631—to determine
if the case is timely. In this case, for instance, § 1631 dictates that the case
must be treated as if it were commenced in the United States District Court
8
This is not a case in which the plaintiff’s initial filing in an incompetent court was
after the prescriptive period had already run. That was the scenario presented in Phillips v.
Illinois Cent. Gulf R.R.,
874 F.2d 984
, 988 (5th Cir. 1989), in which we observed “that
Congress [did not] intend[] that the defendant in every transferred case be deprived of all
statute of limitations defenses.” As we noted there, “the curative effects of § . . . 1631 were
intended to apply only in those circumstances where the action would have been timely
filed in the transferee court at the time of filing in the transferor court.” Id. Franco satisfies
this requirement because, had Franco initially filed his suit in the correct court, prescription
on his claim would have unquestionably been interrupted under Louisiana Civil Code
articles 3462 and his claim would have been indisputably timely under article 3492. Nor is
there any suggestion that Franco’s misfiling was in bad faith. The benefits of § 1631 are
available only when the transferor court determines that it is “in the interest of justice” to
transfer the case rather than dismiss it, and the transferor court’s discretion serves as a
guard against the provision being abused to unfairly prejudice a defendant.
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for the Western District of Louisiana on November 22, 2016. Louisiana Civil
Code Article 3642 then governs whether, based upon the action being
commenced in the Western District of Louisiana on November 22, 2016,
prescription was interrupted. Because the Western District of Louisiana is
“a court of competent jurisdiction and venue” for this case, Louisiana Civil
Code Article 3462 provides that prescription was interrupted on that date.
Lastly, Louisiana Civil Code Article 3492 controls whether this interruption
of prescription—on November 22, 2016—fell within the prescriptive period
for the type of action Franco asserts. Because November 22, 2016, the date
Franco is deemed to have filed under § 1631 and the date prescription was
interrupted under Article 3462, is less than a year after November 24, 2015,
the date Franco allegedly suffered the injury that is the basis of the action,
Article 3492 provides that Franco’s claim is timely. By force of the
Supremacy Clause, federal courts are bound to see that an action transferred
under § 1631 shall proceed as if it had been filed according to the terms of that
section, and nothing prevents a court from then giving full force to the
Louisiana Civil Code Articles to determine whether the case is timely. 9
9
Indeed, the Western District of Louisiana concluded that § 1631 and Louisiana
Civil Code Articles 3462 and 3492 do not conflict in its second ruling when it determined
that Franco’s claim is time-barred. Citing Walker v. Armco Steel Corp.,
446 U.S. 740
, 753
(1978), the court stated that no conflict exists between § 1631 and the Louisiana Civil Code
articles. However, the district then proceeded to completely disregard § 1631, failing to
treat the case as if it were originally filed in the Western District of Louisiana when applying
the Louisiana Civil Code articles. By doing so, the district court misapprehended the
central lesson of Walker: when no conflict exists between the identified state law and a
federal rule or statute, there is no reason not to apply both the federal and state laws in
diversity cases. Id. at 747 (“[I]n the absence of a[n identified] conflicting state procedure,
the Federal Rule would plainly control . . . .” (citing Hanna, 380 U.S. at 465)); Id. at 753
(stating “[t]here is simply no reason why, in the absence of a controlling federal rule,” the
state rule should not be applied); see also id. at 752 (stating that the federal and state laws
“can exist side by side, therefore, each controlling its own intended sphere of coverage
without conflict.”).
16
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No. 19-30316
In sum, § 1631 is an on-point federal statute that does not conflict with
the Louisiana Civil Code Articles and that would preempt any contrary
Louisiana law, rule, or practice under the Supremacy Clause, and the Erie
doctrine provides no reason to avoid the statute’s application. 10 That statute
therefore can and must govern our determination of when and where Franco
is considered to have filed this action. See Budinich,
486 U.S. at 198
(stating
“state law . . . does not control the resolution of issues governed by federal
statute.” (internal citation omitted)). Applying § 1631 to the case at bar, we
accept that, as far as we are concerned, Franco is deemed to have filed his
suit in the Western District of Louisiana on November 22, 2016, the date he
actually filed suit in the Eastern District of Texas. See
28 U.S.C. § 1631
.
Thus, for our purposes, Franco must be deemed to have filed his claim “in a
court of competent jurisdiction and venue” on that date and thereby
interrupted the one-year prescriptive period under Louisiana law, see LA.
CIV. CODE arts. 3492, 3462, rendering his claim timely. The Louisiana
10
Our conclusion that § 1631 must set the applicable date and place of filing is
confirmed by the decisions of other courts faced with the same question. The Tenth
Circuit addressed this issue in examining the interaction between § 1631 and Colorado’s
statute of limitations, explaining that under § 1631, the transferee court “must accept the
date on which th[e] action was [brought in a court that lacked personal jurisdiction] . . . as
the filing date in the [transferee] court.” See Ross,
822 F.2d at 1526-28
(emphasis added).
And the Eastern District of Louisiana came to the same conclusion when recently
considering precisely the laws at issue here. In a very similar case to the one at bar, the
defendants argued just as Mabe does now, that the “Plaintiffs’ claim [wa]s prescribed
under Louisiana law because Plaintiffs neither filed suit in a court of proper venue nor
served a defendant before Louisiana’s one-year prescriptive period ran.” Harutyunyan,
2019 WL 5551901
, at *1, *3. The court disagreed, reasoning that Ҥ 1631 is a controlling
and constitutionally enacted federal statute that governs the Court’s determination of
when and where Plaintiffs are considered to have filed suit in this case.” Id. at 7. The court
explained that “[u]nder § 1631, a transferred case proceeds as if it had been filed in the
transferee court from the outset,” and therefore the plaintiffs’ claims were not prescribed.
Id.
17
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No. 19-30316
district court therefore erred by granting Mabe summary judgment on the
basis that Franco’s claim had prescribed.
***
For the foregoing reasons, the judgment of the district court is
REVERSED and this case is REMANDED for further proceedings.
18
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No. 19-30316
EDITH H. JONES, Circuit Judge, dissenting:
Although I concur in Parts I and IIA of the panel opinion, I must
respectfully dissent from Part IIB. The majority concludes there that
28 U.S.C. § 1631
respects one half of La. Civ. Code Art. 3462 but ignores the
other half, thus depriving state prescription law of its complete meaning. I
do not believe that Congress, in enacting Section 1631 to provide a remedy
for cases accidentally filed in federal courts lacking jurisdiction, also intended
to supersede state statutes of limitations. I would affirm the district court’s
dismissal of this case as prescribed.
Plaintiff Franco filed suit against the trucking company in Texas
within one year following his accident. However, Texas courts had no
jurisdiction over the defendant, and the federal court was faced with
dismissing or transferring the suit to Louisiana, a court of proper personal
jurisdiction. The court opted to transfer, with what I agree was de facto an
order pursuant to Section 1631. Section 1631 provides that a federal court in
this circumstance may, in the interest of justice,
“transfer such action… to any other such court…in which the
action…could have been brought,…and the action… shall
proceed as if it had been filed in…the court to which it is
transferred on the date upon which it was actually filed in…the
court from which it was transferred”
(emphasis added). In plain terms, this provision construes the date of filing
in the transferee court as the date on which the case commenced in the
transferor court. See, e.g., Phillips v. Ill. Cent. Gulf R.R.,
874 F.2d 984
, 987-
88 (5th Cir. 1989) (holding that diversity case transferred from Texas to
Louisiana was prescribed despite Section 1631’s adoption of the transferor
court’s filing date); Ross v. Colo. Outward Bound Sch., Inc.,
822 F.2d 1524
(10th Cir. 1987) (case not barred by limitations after Section 1631 transfer).
But the federal provision does no more.
19
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No. 19-30316
The majority opinion holds that Section 1631, which has rarely been
construed in the context of a statute like Art. 3462, 1 by its terms controls not
only the date and place of filing but also the “manner of proceeding” with
the case. The “manner of proceeding,” evidently, then superseded state
limitations law in this diversity case. I disagree. The statute’s language that
the action “shall proceed” as if it had been filed in the transferee court on
the date of filing in the transferor court incorporates only that date, not
consequences that might follow from that date under state law.
Accordingly, whether the original filing date is within the statute of
limitations becomes a matter for the transferee court to decide, and that issue
depends in a diversity case on the law of the forum state. The Supreme Court
has held that where service of summons was integrally bound with a state
court’s statute of limitations, the principles underlying Erie require federal
courts to apply local law. As the Court explained, “[w]e can draw no
distinction in this case because local law brought the case to an end after,
rather than before, suit was started in the federal court….We cannot give it
longer life in the federal court than it would have had in the state court
without adding something to the cause of action.” Ragan v. Merchants Transf.
& Warehouse Co.,
337 U.S. 530
, 533-34,
69 S. Ct. 1233
, 1235 (1949).
Ragan is on point with this case. As I noted above, the majority relies
on half of the applicable statute, La. Civ. Code Art. 3462, which states that
the one-year prescription period is “interrupted…when the obligee
commences action against the obligor in a court of competent jurisdiction and
venue.” But the rest of the provision states, “[i]f action is commenced in an
1
The majority cites one opinion from a district court in Louisiana. One other such
case is Manieri v. Layirrison,
1998 WL 458186
(E.D. La. 1998) (holding suit prescribed
under Art. 3462 after transfer from court of improper venue under
28 U.S.C. §§ 1404
(a)
or 1406(a)).
20
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No. 19-30316
incompetent court or in an improper venue, prescription is interrupted only
as to a defendant served by process within the prescriptive period.” The
majority treats Section 1631 “as if” its language, which states that the action
shall proceed “as if” it had been filed in the transferee court on the filing date
in the transferor court, also settled the question of a valid interruption of
prescription under Louisiana law. But applying a retroactive filing date for
the suit does not speak to whether the suit is timely under state law. Because
Franco did not serve the defendant within the one year prescriptive period in
the “incompetent” Texas court, Louisiana Art. 3462 held it barred. In
Phillips, supra, a transfer under Section 1631 did not compel continuation of
a suit commenced outside the Louisiana one-year prescription period, but in
Ross,
supra,
the opposite result obtained. Section 1631 is neutral as to state
law consequences. Governing law under Erie therefore continues to require
fealty to the whole of Article 3462.
In Walker v. Armco Steel Corp., the Supreme Court held that Ragan is
still good law.
446 U.S. 740
,
100 S. Ct. 1978
(1980). The Court pointed out
that in Hanna [v. Plumer,
380 U.S. 460
,
85 S. Ct. 1136
(1965)] there was a
“direct collision” between federal and state procedural rules, whereas in
Ragan and Walker such a clash was avoidable, and the states’ service of
process requirements—intimately bound up in the states’ substantive
statutes of limitations—had to apply. Id. at 748-49,
100 S. Ct. at 1984-85
(“There is no indication that [Fed. R. Civ. P. 3] was intended to toll a state
statute of limitations, much less that it purported to displace state tolling
rules for purpose of state statutes of limitations.”).
Applying the reasoning of Walker to this case, I contend, contrary to
the majority, that the scope of Section 1631 is not so broad as to countermand
Louisiana law’s integrated prescription and service of process limits. La. Civ.
Code Arts. 3492, 3462. See
id. at 751
,
100 S. Ct. at 1985
. In fact, the
arguments made by the majority here are analogous to those rejected by
21
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No. 19-30316
Walker in considering whether Fed. R. Civ. P. 3 (“An action is commenced
by filing a complaint with the court”) superseded Ragan or the integrated
Oklahoma statute of limitations/service of process law in a diversity case. It
would be odd if Congress, aware of Erie and Ragan, had enacted Section 1631
with an eye to obliterating certain state limitations statutes only in cases
where the plaintiff had first filed in a federal court lacking jurisdiction. Yet
the result of the majority’s holding is not only to create a split between
substantive outcomes in state and federal court in Section 1631 cases, but also
a split between results in federal courts based solely on jurisdictional errors
in the initial location of filing. 2
For these reasons, Franco’s suit had prescribed upon transfer to
Louisiana because he served summons on the defendant outside the one-year
bar. I respectfully dissent.
2
If Franco had filed his suit in a Louisiana federal court that possessed personal
jurisdiction but proceeded to serve the defendant outside the one-year prescriptive period,
Art. 3462 would bar the suit pursuant to Erie principles. Federal Rule 3 would not bail him
out. According to the majority’s opinion here, however, if the plaintiff first filed in a court
lacking personal jurisdiction and served process after the one-year prescriptive limit,
Art. 3462 plays no role, he may have a Section 1631 transfer, and his case will proceed.
22 |
4,669,349 | 2021-03-19 00:00:31.110286+00 | null | http://www.ca5.uscourts.gov/opinions/unpub/20/20-60386.0.pdf | Case: 20-60386 Document: 00515786619 Page: 1 Date Filed: 03/18/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
March 18, 2021
No. 20-60386 Lyle W. Cayce
Summary Calendar Clerk
Gipson Fernandes,
Petitioner,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A216 075 024
Before Owen, Chief Judge, and Haynes and Costa, Circuit Judges.
Per Curiam:*
Gipson Fernandes, a native and citizen of India, petitions for review
of a decision of the Board of Immigration Appeals (BIA) dismissing his appeal
from an order of the immigration judge (IJ) denying his application for
asylum, withholding of removal, and protection under the Convention
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
Case: 20-60386 Document: 00515786619 Page: 2 Date Filed: 03/18/2021
No. 20-60386
Against Torture (CAT). We review factual findings for substantial evidence
and legal conclusions de novo. Orellana-Monson v. Holder,
685 F.3d 511
, 517
(5th Cir. 2012).
We have authority to review only the order of the BIA unless the
underlying decision of the IJ influenced the BIA’s decision. Mikhael v. I.N.S.,
115 F.3d 299
, 302 (5th Cir. 1997). We will review both decisions to the extent
the BIA adopted the findings and conclusions of the IJ. See Zhu v. Gonzales,
493 F.3d 588
, 593 (5th Cir. 2007).
Fernandes contends that the BIA erred by not conducting a
meaningful analysis of the documentary evidence. The BIA “does not have
to write an exegesis on every contention. What is required is merely that it
consider the issues raised, and announce its decision in terms sufficient to
enable a reviewing court to perceive that it has heard and thought and not
merely reacted.” Efe v. Ashcroft,
293 F.3d 899
, 908 (5th Cir. 2002) (internal
quotation marks and citation omitted).
Here, as the IJ determined, the documentary evidence, read as a
whole, showed instances of “random” and “isolated” adverse acts toward
Christians at various times and in various locales in India. On appeal, the
BIA determined that Fernandes had not shown error by the IJ because he had
not pointed to evidence supporting the claim of a “pattern or practice . . . of
persecution” that the IJ failed to consider.
8 C.F.R. § 1208.13
(b)(2)(iii)
(2021). Further, as the IJ noted, the documentary evidence showed that the
laws of India protect freedom of religion. We conclude that Fernandes’s
contention that the BIA failed to conduct a meaningful analysis of the
documentary evidence lacks merit. See Efe,
293 F.3d at 908
.
Fernandes’s own testimony established that he and his family openly
practiced Catholicism and were never harmed. Further, his family members
in India have continued to practice the Catholic faith, without incident, after
2
Case: 20-60386 Document: 00515786619 Page: 3 Date Filed: 03/18/2021
No. 20-60386
Fernandes came to the United States. This weighs against a determination
that Fernandes has a well-founded fear of future persecution on account of
his religion or his membership in a particular social group of Catholics in Goa,
India. See Gonzalez-Soto v. Lynch,
841 F.3d 682
, 683-84 (5th Cir. 2016)
(summary calendar) (per curiam).
In view of the foregoing, substantial evidence supports the BIA’s
determination that Fernandes failed to meet his burden of proof for asylum
because he did not establish a well-founded fear of future persecution. See
Gjetani v. Barr,
968 F.3d 393
, 396 (5th Cir. 2020). As Fernandes failed to
establish eligibility for asylum, he cannot prevail on his claim for withholding
of removal. See Dayo v. Holder,
687 F.3d 653
, 658-59 (5th Cir. 2012)
(summary calendar).
Fernandes also argues that the decisions of the IJ and the
BIA regarding his claim for protection under the CAT are not supported by
substantial evidence. For purposes of the CAT, “[t]orture is defined as any
act by which severe pain or suffering, whether physical or mental, is
intentionally inflicted . . . by, or at the instigation of, or with the consent or
acquiescence of, a public official . . . or other person acting in an official
capacity.”
8 C.F.R. § 1208.18
(a)(1) (2021).
As the IJ determined, the record shows that the Indian government is
engaged in ongoing efforts to curb extremist violence and has implemented
laws to protect religious freedom. The IJ acknowledged that such efforts
have not been entirely successful. But he determined that, given the
government’s efforts, he could not conclude that the government would
acquiesce in torture. Further, as the IJ noted, the evidence of record shows
that Fernandes and his family have never been harmed in India, much less
tortured. In view of the foregoing, we conclude that the denial of
Fernandes’s CAT claim is supported by substantial evidence. See Chen
3
Case: 20-60386 Document: 00515786619 Page: 4 Date Filed: 03/18/2021
No. 20-60386
v. Gonzales,
470 F.3d 1131
, 1139 (5th Cir. 2006);
8 C.F.R. § 1208.16
(c)(3)
(2021).
* * *
The petition for review is DENIED.
4 |
Subsets and Splits