Datasets:

gen-law

/

daniel-cl-extracted

like 0

Follow

genlaw 10

2020-01-17 22:02:11.43122+00

Lansdon

*624OPINION. Lansdon: Preliminary to our consideration of the several issues presented by the record, we are called upon to determine the status of the appeal of Michael Duggan, Docket No. 17209, whose death *625is suggested by the attorneys for the appellants in their motion to dismiss, filed at the close of the hearing. The record shows that Michael Duggan died on February 24,1928, nearly two years after his appeal to this Board had been perfected and before hearing or decision thereof, and also that the action is one which survives against his estate. The single duty imposed by law on the Board of Tax Appeals is to review the administrative determinations of deficiencies or liabilities asserted by the Commissioner, and to redetermine the amounts, if any, due the Government. It is clear, therefore, that jurisdiction resulting from an appeal here, in conformity with law and our rules of procedure, continues unimpaired until our functions are terminated by decision or dismissal. There is no abatement of an appeal upon the death of the appellant, and the motion to dismiss is, therefore, overruled. Green v. Watkins, 6 Wheat. 260; March v. Supreme Lodge Knights of Honor, 29 Fed. 896. The petitioners’ several causes of action will be discussed, the merits thereof determined, and the questions raised decided in the order in which they are argued in their brief. Their first contention is that “ No profit can be imputed to the corporation upon a sale of assets made by the stockholders after a distribution in kind in liquidation.” This allegation requires us to determine whether the sale of capital assets which resulted in the alleged gain which the respondent here seeks to tax was made by the Johnston City & Big Muddy Coal & Mining Co., hereinafter sometimes designated the corporation, or by the single stockholder of such corporation after the receipt by it of such property as a liquidating dividend distributed in kind. The parties agree that if the sale was made by the corporation it had net taxable income in the year 1920 in the amount of $736,626.56 and that there is a deficiency in payment of tax liability thereon in the amount of $316,620.61. Counsel for petitioner throughout the hearing and in their briefs repeatedly declare that the Board is herein called on only to determine a simple question of fact. Whether the sale was made by the corporation or by the Duggan Trust is, of course, a question of fact, but it is a fact that can be ascertained only by inquiring and deciding whether the procedure adopted for the purpose of making the sale without incurring tax liability was legal in all its material- steps. Not later than March 20, 1920, the corporation and the purchaser agreed on the consideration and terms of the sale, and not later than the 25th of March the purchaser completed all its arrangements for necessary funds and notified the corportion that it was ready to close the deal. The purchaser was not concerned with any question of taxes, but desired a good title to the assets, for which it had agreed to pay *626$1,800,000 in cash. Much of the property was real estate and it was necessary to satisfy the statute of frauds by corporate acts of record sufficient to complete the deal and pass legal title to the assets involved from the corporation to the purchaser. Accordingly, a sales contract purporting to be an agreement between the Duggan Trust and the purchaser was drawn by counsel for the parties thereto. This contract was dated and signed as of March 31, 1920, and thereafter nothing remained to complete the sale except the delivery of the property with title by the seller upon receipt from the purchaser of the stated consideration. On March 81,1920, the directors of the corporation, James Duggan, Henry Duggan, and Holland, adopted a resolution relating to the distribution of property no longer needed in the business and called a meeting of the stockholders for 10 a. m. of the same day. At such called meeting, in which none of the stockholders were present in person and all were represented by proxy theretofore given to Henry Duggan, who on that date was neither a stockholder nor a beneficiary of the trust, the directors were authorized to distribute in kind certain of the assets of the corporation to the stockholders — that is, to the Duggan Trust. At 11 a. m. the directors again met and authorized James Duggan, the president, to act in behalf of the company and together with the secretary, Holland, to make and execute all proper - instruments incident to such distribution. Whether these meetings were in fact held and, if so, just what was legally done, we are unable to determine. The records introduced in evidence are made up of filed in skeletons of carbon copies, pasted into the minute book without regard to the sequence .or nature of the meetings they purport to report and, in some instances, signatures and entries appearing therein are repudiated by the secretary. It seems clear, however, that, the corporation at no time ever intended to part with title to the assets sold until a conveyance was made to the purchaser and it received the purchase price. This fact is shown from the circumstance that it retained the deeds, theretofore made to James Duggan until April 9, when the money was counted out to it in the office of the Old Ben Coal Co. At this time, but not until the checks had been verified by him, its attorneys directed the secretary of the corporation to surrender the deeds to James Duggan, who simultaneously therewith delivered the instruments that passed the title to the purchaser. We think the inferences fairly deducible here show conclusively that a sale was contemplated long before the alleged distribution in kind; that except in the event of a sale the corporation intended to continue to hold, and operate these properties; and that, the delivery of the deeds and bill of sale to James Duggan, an act necessary to. the alleged distribution, was wholly contingent on the *627completion of the sale. The unconditional delivery and acceptance of a deed as an essential requirement to pass title is too elemental for serious discussion and must be conceded. Weber, etc. v. Christen, etc., 121 Ill. 91; 11 N. E. 893; Blankenship v. Hall, 233 Ill. 116; 84 N. E. 192. Even if accomplished as claimed by the petitioners, the procedure on March 31, all of which was a part of a program previously planned for the admitted and we believe the sole purpose of avoiding any tax to the corporation on gains which it was then known would be realized from a sale of capital assets not merely contemplated but actually made as to its terms and conditions, is questionable in several particulars. Inasmuch as the evidence discloses that the disposition of corporate property proposed by the directors and authorized by the stockholders was to include capital assets in addition to surplus earnings, it is clear that either a partial liquidation by reduction of capital or a complete liquidation as a step towards dissolution was contemplated. That the corporation transferred the assets in controversy to its stockholders “ in process of dissolution,” as now claimed, is conclusively negatived by its certificate of dissolution, filed with the Secretary of State of Illinois long after the transaction here involved. This certificate is required by section 75 of chapter 32, at page 678, of the Revised Statutes of Illinois, of all corporations seeking voluntary dissolution, as a condition precedent, to show their prior compliance with all of the laws pertaining to payment of the corporation debts, and the distribution of its capital. Among other things the corporation is required to show by listing, in specific detail, what assets, either in kind or money, were distributed to the stockholders. The form required to be filed provides blank spaces for setting forth the names and addresses of each stockholder receiving any part of the corporation’s property, and the value, in money, of the same. The obvious purpose of this statute is to furnish information to the State, and the unpaid creditors of the corporation, which will enable them, in proper cases, to follow the assets into the hands of the distributees. The certificate filed by the corporation in this case gave no names of any distributees of its property, but, on the contrary, stated that the corporation owned no assets on the date of the adoption of the resolution to dissolve. Nothing in the record even remotely suggests that at the date of the proposed distribution it was regarded or taken as a step in the reduction of capital in conformity with chapter 32, paragraph 59, at page 676, of Cahill’s Illinois Revised Statutes. In these circumstances it would seem that the alleged distribution in kind was not legally effected and that the sale under the contract was a mere conversion of a mixed body of assets *628into cash without in any way affecting the resources of the corporation or the rights of its minor stockholders and creditors. If the alleged distribution was a step in the transfer of the assets of the corporation to the corpus of the Duggan Trust, it failed of its purpose, since the procedure adopted was in violation of the express terms of the following provision of the trust instrument: The Trustees shall have power at any time to sell all or any oí the property, real or personal, then belonging to the trust hereby created, either at public auction or by private contract, for cash or on credit, or partly for cash and partly on credit, and to receive the property and assets at any time belonging to said Johnston City & Big Muddy Coal & Mining Company, or any part of the same, in the event of the dissolution of said company or of the distribution of any part or all of the property and assets of said company in exchange for some part or all of the stock of said company so held by said Trustees, and to execute and deliver all good and sufficient deeds, bills of sale, instruments of transfer, and any and all other writings necessary or proper to convey the property sold by said Trustees, and the proceeds of the- sale so made or of any property so received shall be held by said Trustees upon and subject to the same trusts which the property so sold or conveved was held by said Trustees. Obviously this language provides for three ways in which additional property may be received into the corpus of the trust, which originally included only the stock of the corporation. It might receive and use the income incident to its stock ownership; it might receive a part of the capital of the corporation distributed in partial liquidation and in return therefor surrender for cancellation a ratable proportion of the stock held by it, or, in the event of dissolution, it might receive all the property of the corporation. The purposes of these provisions of the trust iñstrument are not clear, but it is reasonable to assume that no dissolution was then contemplated and that in certain conditions the corporation was to continue in business as a retail coal dealer with reduced capital, as is indicated by some provisions of the sales contract. It is plain enough, however, that under the terms of the instrument the trustees were required to surrender stock whenever they received assets of the corporation in partial liquidation. Even if the alleged distribution by the corporation to the stockholders was a legal act as contemplated by the corporation laws of Illinois, which in the circumstances here is more than doubtful, it is evident that the trustees, as such — that is, the Duggan Trust, could not legally receive such property into the corpus of the trust unless they complied with the conditions set forth in the trust instrument. No stock was surrendered. Neither was there any prior dissolution, and we conclude, therefore, that the assets in question did not pass, as claimed, into the ownership of the Duggan Trust on March 31, 1920. The sales contract specifically declares that at the date thereof the stock of the corporation was the property of the Duggan Trust and that the assets to be conveyed were the property of the corpo*629ration. Even if the trust was a party to the agreement to sell, the terms of that instrument indicate that it was no more than an executory contract to convey certain property or cause such property to be conveyed. Its completion could be effected either by the acquisition of the property and subsequent conveyance to the purchaser, or by causing the conveyance to be made by the corporation. Since we have decided above that the Duggan Trust did not receive the property it follows, of course, that it was not able directly to convey to the purchaser. If it caused the property to be conveyed by the corporation, the. Commissioner’s contention that the sale was made by the corporation is established. Inasmuch as the sales agreement was executed and the property transferred with title satisfactory to the purchaser, we are of the opinion that it must be regarded as nothing less than a contract for and on behalf of the corporation, entered into for the purposes of binding these stockholders to see that the verbal agreement, theretofore made by the corporation, to sell these properties, would be carried out. The logic of the events, following the conclusion of these negotiations, as well as the things undertaken to be performed in this contract, justify such conclusion, since these directors could not have legally bound the corporation in a contract for the sale of all of its capital assets without special authority from the stockholders. The stockholders, however, could be personally bound by such a contract which, when joined in by all of them, would afford the purchaser the extreme limit of protection to be legally had in the conditions. Under such circumstances a contract by all of the stockholders, they possessing among themselves the power to force its adoption by the corporation, becomes for all intents and purposes the contract of the corporation. Jones v. Missouri-Edison Electric Co., 144 Fed. 765; Kelly v. Fahrney, 145 Ill. App. 80; affd., 242 Ill. 240; 89 N. E. 984; Higgins v. Lansingh, 154 Ill. 301; 40 N. E. 362; Farwell v. Pylo-National Electric Headlight Co., 289 Ill. 157; 124 N. E. 449; Synnott v. Cummings, 116 Fed. 40; Gilman C. & S. R. R. Co. v. Kelley, 77 Ill. 426; Ogden v. Murray, 39 N. Y. 202; Bliss v. Matterson, 45 N. Y. 22. That the sale should be considered a corporation transaction is shown by the fact that the final closing of the deal was made by the officers of the corporation with the purchasers, in the absence of the trustees, and without their knowledge, advice, or assistance, in so far as the record shows; that it was James Duggan, president of the corporation, who executed the conveyance to the purchaser and received from it the full purchase price of $1,800,000. In so doing we think Duggan acted for and in behalf of the corporation, and that his acts, under these circumstances, constituted a complete sale and delivery of this *630property by the corporation to the purchaser, and the receipt by said corporation of the selling price. The circumstances herein are practically on all fours with the facts in Taylor Oil & Gas Go., 15 B. T. A. 609, which we decided adversely to the contentions of the petitioners. Since the avowed purpose of the various transactions here other than the actual sale was to avoid tax liability, it becomes the duty of the Board to look through the form to the substance thereof. It has been held that one may lawfully dispose of his property to escape taxation, but that the law will not uphold any mere manipulation, under the guise of disposition, the only effect of which is to defeat the tax. Ransom v. City of Burlington, 111 Ia. 77; 82 N. W. 427; Mitchell v. Board of Commissioners of Leavenworth County, Kansas, 91 U. S. 206; Shotwell v. Moore, 129 U. S. 590. In the various manipulations of record in this proceeding none effected any change in the beneficial ownership of the assets involved. There was no disposition of property either in form or substance that in any way lessened or changed the proportional beneficial interests of the several stockholders of the corporation who surrendered their certificates to the trust on December 31, 1919. At the end of all the complicated procedure indulged in, each of the stockholders of the corporation, except for certain assignments among themselves which are not material here, was in full enjoyment of all the interest therein which he had owned before counsel devised the plan or plot for the avoidance of taxes. We are of the opinion that the sale here involved was made by the Johnston City & Big Muddy Coal & Mining Co. and the taxable income realized therefrom is taxable to it. Petitioners next challenge the legality of the assessments made against them under and by virtue of the provisions of section 280 of the Revenue Act of 1926, and the jurisdiction of this Board to redetermine the same, for the reason, as claimed by them, that said section is unconstitutional and void. The issues of law raised by these petitioners in respect to the validity of this section of the Act were considered by us in Henry Cappellini et al., 14 B. T. A. 1269, and there decided adversely to the contentions made by them here. By authority of this decision we now overrule the motion so made by them at this time. Petitioners’ third objection raises the question as to their exemption from liability based upon the theory that they were not in possession of the corporation’s assets at the time the assessment against it was made; but that the Duggan trustees, if anybody, were at said time liable, they being, as claimed by petitioners, the primary transferees and in possession of ample property out of which to pay the tax. *631The record, however, fails to establish the facts as contended for by the petitioners in respect to the receipt by the so-called Duggan Trust of the assets of the corporation. The property under consideration here, either in its present or preconverted form, has at all times been in the actual or constructive possession of the corporation or these petitioners, without intervening transferees. The money received for the sale of the property was received by James Duggan, as president of the corporation, before its dissolution, and invested in securities, records of which were kept by the corporation. After dissolution of the corporation, these records were continued by Henry Duggan, a director of the corporation. There is no evidence to show when, how, or by what authority all the assets listed therein, less certain distributions, appear on the property account of James Duggan at the date of the death of the last of the trustees. On March 10, following, James Duggan made distribution to Huida Duggan and Henry Duggan of the portion of such, assets not retained by himself, in accordance with a contract of settlement entered into between himself and said distributees on said date, in which contract, as shown by the receipts taken from dis-tributees, • he assumes to act “ individually and as Trustee.” We are without information as to the nature of the trust under which James Duggan claimed to hold this property, unless it be by virtue of law which casts a trust upon all officers and directors of a dissolved corporation to hold its property and assets for the benefit of its creditors and stockholders, the latter being tenants in common of the same and entitled to legal distribution after debts are paid. Pewabic Mining Co. v. Mason, 145 U. S. 349. Under these circumstances James Duggan could make distribution of the corporation assets, but the distributee stockholders would be liable for the unpaid taxes to the extent of the value of the property received by each; and, since it is the property of the dissolved corporation which must stand for the payment of these obligations, and not the stockholders individually, it is immaterial as to what means were employed in effecting distribution, so long as the property reached them and is found in their possession. Upton, Assignee, v. Tribilcock, 91 U. S. 45; Updike v. United States, 8 Fed. (2d) 913. The record shows that at the final distribution of these assets on March 14, 1928, James Duggan retained as his portion thereof money and securities of a total value. of $1,415,617.35; but there is a total absence of evidence to show that Michael Duggan, or his estate, in any manner shared in said distribution, or received any of such assets. We, therefore, hold that, as to the petitioner James Duggan, liability as transferee of the assets of the defaulting dissolved corporation for the unpaid taxes, limited to the value of the assets thus *632received, is established; but that, as to the petitioner Michael Dug-gan, his assignment of error in respect to such liability must be sustained. We next come to the important question of fraud raised by the respondent in his amended answer and for which he prays the imposition of the 50 per cent penalty against the dissolved corporation. Careful consideration of the record upon which the respondent relies to support his imposition of the fraud penalty convinces us that the return here in question, though false, was not wilfully made for the purpose of evading taxes. The charge of fraud is dismissed. In conformity with the foregoing findings of fact and opinion, we conclude that the petitioner, James Duggan, Docket No. 17208, is liable for the unpaid taxes of the Johnson City & Big Muddy Coal & Mining Co. for the year 1920, not exceeding the amount, in value, of the assets of said corporation received by him, as found. Grand Rapids National Bank, 15 B. T. A. 1166. Reviewed by the Board. Decision will be entered under Rule BO in Docket No. 17208. Decision will be entered for the petitioner in Docket No. 17209.

2020-12-03 20:08:42.087195+00

http://www.courts.state.ny.us/reporter/3dseries/2020/2020_07295.htm

People v Nieves (2020 NY Slip Op 07295) People v Nieves 2020 NY Slip Op 07295 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. 2830/16 Appeal No. 12544 Case No. 2019-1706 [*1]The People of the State of New York, Respondent, v Dennis Nieves, Defendant-Appellant. Stephen Chu, Interim Attorney-in-Charge, Office of the Appellate Defender, New York (Stephanie Sonsino of counsel), for appellant. Darcel D. Clark, District Attorney, Bronx (Noah J. Chamoy of counsel), for respondent. An appeal having been taken to this Court by the above-named appellant from a judgment of the Supreme Court, Bronx County (Armando Montano, J.), rendered February 23, 2018, 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.

2020-12-03 20:14:01.819257+00

http://www.oscn.net/applications/oscn/DeliverDocument.asp?CiteID=487379

MIDFIRST BANK v. POE Skip to Main Content Accessibility Statement OSCN Found Document:MIDFIRST BANK v. POE Previous Case Top Of Index This Point in Index Citationize Next Case Print Only MIDFIRST BANK v. POE 2020 OK CIV APP 63 Case Number: 117615; Cons. w/118056 Decided: 10/23/2020 Mandate Issued: 12/02/2020 DIVISION I THE COURT OF CIVIL APPEALS OF THE STATE OF OKLAHOMA, DIVISION I Cite as: 2020 OK CIV APP 63, __ P.3d __ MIDFIRST BANK, Plaintiff/Appellee, v. JENIFER ANN POE, Defendant/Appellant, ALICE J. POE, personal representative of the estate of Jerry Daniel Poe, Deceased, Defendant. APPEAL FROM THE DISTRICT COURT OF TULSA COUNTY, OKLAHOMA HONORABLE MARY FITZGERALD, JUDGE REVERSED AND REMANDED Jessie V. Pilgrim, Clint T. Swanson, SWANSON LAW FIRM, PLLC, Tulsa, Oklahoma, for Defendant/Appellant, Robert P. Skeith, RIGGS, ABNEY, NEAL, TURPEN, ORBISON & LEWIS, Tulsa, Oklahoma, for Plaintiff/Appellee. B.J. Goree, Judge: ¶1 MidFirst Bank (Bank) filed a petition to interplead funds. It alleged it could be exposed to double liability with respect to $32,830.44 which it held on deposit and to which it claimed no interest. Bank named two defendants, Jenifer Ann Poe (Poe) and Alice J. Poe, personal representative of the Estate of Jerry Daniel Poe. The interpleader was granted before Poe had notice and an opportunity to be heard. We hold this was a denial of due process of law. ¶2 On the same day the petition was filed, the district court signed an order directing Bank to deposit the funds with the court clerk. The order was filed a few days later. Afterward, and in due time, Poe filed her answer and an amended answer. She denied Personal Representative was asserting a claim, she denied Bank may be exposed to double liability with respect to the funds, and she asserted Bank failed to state a claim. Poe raised affirmative defenses that Bank had acted in bad faith and with unclean hands, and she asserted a counterclaim that Bank was liable for conversion. ¶3 Poe filed an application requesting a hearing on her affirmative defenses and a motion to vacate the order directing deposit of the funds, arguing it was entered without notice and before she had an opportunity to object. Bank responded that the answers of the two defendants present opposing claims to the subject funds, thereby supporting its claim that it could be exposed to the potential for double liability. Bank explained that it merely tendered a proposed order to the district court when it filed its petition, and the fact that the order was filed without advance notice to Poe is of no legal consequence under the circumstances. Reiterating that it claimed no interest in the money, and that it was properly within the safekeeping of the court pending disputes between the two defendants, Bank asked the court to dismiss Poe's counterclaims and discharge it from the action. ¶4 The court (1) granted Bank's motion to dismiss Poe's counterclaims, (2) ordered Bank released and discharged from any and all liability to Defendants, and (3) ordered an attorney fee to be paid to Bank from the deposited funds in an amount to be determined in a future proceeding. By a separate order, the court awarded Bank $9,476.50 for attorney fees and $733.49 for costs. Poe appealed. 1 ¶5 In a proceeding commenced pursuant to 12 O.S. §2022, the district court's order directing a pleader to deposit the subject of the action into court is reviewed for an abuse of discretion. Farmers Ins. Co. v. VanWinkle, 2018 OK CIV APP 40, ¶3, 417 P.3d 1262, 1264 (holding that interpleader proceedings are equitable in nature and are reviewed for an abuse of discretion). Review may encompass a claim of legal error or lack of an evidentiary basis, and both implicate the de novo standard. Id. ¶6 Oklahoma's interpleader statute provides that a party potentially exposed to double or multiple liability for wrongful payment may tender the claimed property into court for a decision on the priority of claims. Shebester v. Triple Crown Insurers, 1992 OK 20, ¶22, 826 P.2d 603, 611. According to Title 12 O.S. §2022(A), persons having claims against the plaintiff may be joined as defendants and required to interplead when their claims are such that the plaintiff is or may be exposed to double or multiple liability. "When the party seeking such relief claims no interest in the subject of the action, and it has been deposited with the court, the court should discharge the pleader from the action and from liability as to the claims of the other parties." §2022(C).2 Bank's argument suggests that this language makes no provision for objection, affirmative defense, or counterclaims. If the party seeking relief claims no interest in the funds and they have been deposited with the court, then "the court should discharge the pleader" both from the action and from liability for claims of the other parties. ¶7 Although actions in interpleader are part of the Oklahoma Pleading Code, 3 its applicability is subject to an exception "where a statute specifies a different procedure." §2001. We must consider whether the Legislature intended by the language of §2022(C) to dispense with a defendant's right to file an answer and permit the court to order relief instanter after the petitioner states a claim. ¶8 Long before its codification at §2022, an action in interpleader was within the inherent power of the court. Waggoner v. Johnston, 1965 OK 192, ¶8, 408 P.2d 761, 765. The court had the initial task of determining whether interpleader was proper. Id. If so, the petitioner was to be discharged and the case advanced to a second stage where the validity of the competing claims to the fund would be determined on the merits. See Stanford v. Stanford, 1996 OK CIV APP 156, ¶13, 936 P.2d 352, 355. Interpleader actions involve "two successive litigations: one between the plaintiff and the defendants as to whether the defendants shall interplead; the other between the different defendants on the conflicting claims." Turman Oil Company v. Lathrop, 8 F. Supp. 870, 872 (N.D. Okla. 1934). ¶9 The party seeking relief under 12 O.S. §2022 may state a claim for relief by setting forth a short and plain statement of the claim showing it is entitled to relief and a demand for judgment. 12 O.S. §2008(A). We hold opposing parties must be afforded a right to state their defenses in accordance with 12 O.S. §2008(B). Section §2022(C) does not specify a procedure that eliminates a non-movant's right to object. ¶10 The U.S. Const. amend. XIV, § 1 and Okla. Const. Art. 2, § 7 ensure that no person may be deprived of life, liberty, or property without due process of law. At a minimum, due process requires notice and a meaningful opportunity to appear and be heard. Crownover v. Keel, 2015 OK 35, ¶14, 357 P.3d 470, 474. The right to be heard is the core element of due process. Booth v. McKnight, 2003 OK 49, ¶18, 70 P.3d 855, 862. ¶11 Because the court entered an order partially granting the relief requested by Bank, without the opportunity for Defendant Poe to assert and be heard on her defenses, the Order Interpleading Funds must be reversed. It necessarily follows that the court's orders dismissing Poe's counterclaims, dismissing Bank, and awarding attorney fees and costs must also be reversed. The latter have no viability in the absence of an enforceable order granting interpleader. Stanford, ¶16 (denial of interpleader fatally affected all subsequent proceedings). ¶12 On remand, the court must accord all parties due process and make a determination of whether Bank may be exposed to double or multiple liability and whether Bank claims an interest in the subject of the action. If these two basic requirements are met, interpleader proceedings may proceed. Stanford, ¶13. ¶13 The orders filed September 5, 2018, November 30, 2018, and June 4, 2019 are reversed and the case is remanded for further proceedings. ¶14 REVERSED AND REMANDED. BELL, P.J., and BUETTNER, J., concur. FOOTNOTES 1 Poe filed two appeals arising from separate orders filed in the same case. We entered an order consolidating Case No. 117,615 and Case No. 118,056. After considering the parties' supplemental briefs in aid of our inquiry into appellate jurisdiction, we conclude the orders are interlocutory orders appealable by right because they direct the payment of money pendente lite pursuant to 12 O.S. §993(A)(5) and in accordance with Hammonds v. Osteopathic Hospital Founders Association, 1996 OK 54, 917 P.2d 6. The order filed September 5, 2019, directed Bank to deposit $32,830.44 into the court registry. The order filed November 30, 2018, decreed that an attorney fee and costs are to be paid from the deposited funds. The order filed June 4, 2019, awarded $9,476.50 for the attorney fee and $733.49 for costs. None of these orders is a final order because Poe has pending undetermined claims against the personal representative and the district court neither certified the orders as immediately appealable pursuant to 12 O.S. §952(b)(3) nor expressly stated there is no just cause for delaying the entry of a final judgment pursuant to 12 O.S. §994. 2 Title 12 Ohio St. 2011 §2022 provides, in part: A. Persons having claims against the plaintiff may be joined as defendants and required to interplead when their claims are such that the plaintiff is or may be exposed to double or multiple liability. It is not ground for objection to the joinder that the claims of the several claimants or the titles on which their claims depend do not have a common origin or are not identical but are adverse to and independent of one another, or that the plaintiff avers that he is not liable in whole or in part to any or all of the claimants. A defendant exposed to similar liability may obtain such interpleader by way of cross-claim or counterclaim. The provisions of this section supplement and do not in any way limit the joinder of parties permitted in Section 20 [Title 12 Ohio St. 2011 §2020] of this act. . . . C. . . . . Where the party seeking relief by way of interpleader claims no interest in the subject of the action and the subject of the action has been deposited with the court or with a person designated by the court, the court should discharge him from the action and from liability as to the claims of the other parties to the action with costs and, in the discretion of the court, a reasonable attorney fee. . . . 3 "Scope of the Oklahoma Pleading Code - The Oklahoma Pleading Code governs the procedure in the district courts of Oklahoma in all suits of a civil nature whether cognizable as cases at law or in equity except where a statute specifies a different procedure. It shall be construed to secure the just, speedy, and inexpensive determination of every action. The provisions of Sections 1 through 2027 of this title may be cited as the 'Oklahoma Pleading Code'. Section captions are part of this act." 12 O.S. §2001. Citationizer© Summary of Documents Citing This Document Cite Name Level None Found. Citationizer: Table of Authority Cite Name Level Oklahoma Court of Civil Appeals Cases  CiteNameLevel  2018 OK CIV APP 40, 417 P.3d 1262, FARMERS INSURANCE CO. v. VANWINKLEDiscussed  1996 OK CIV APP 156, 936 P.2d 352, 68 OBJ 1202, STANFORD v. STANFORDDiscussed Oklahoma Supreme Court Cases  CiteNameLevel  1992 OK 20, 826 P.2d 603, 63 OBJ 450, Shebester v. Triple Crown InsurersDiscussed  1965 OK 192, 408 P.2d 761, WAGGONER v. JOHNSTONDiscussed  2003 OK 49, 70 P.3d 855, BOOTH v. McKNIGHTDiscussed  1996 OK 54, 917 P.2d 6, 67 OBJ 1430, Hammonds v. Osteopathic Hosp. Founders Assn.Discussed  2015 OK 35, 357 P.3d 470, CROWNOVER v. KEELDiscussed Title 12. Civil Procedure  CiteNameLevel  12 Ohio St. 2020, Permissive Joinder of PartiesCited  12 Ohio St. 952, Jurisdiction of Supreme CourtCited  12 Ohio St. 993, Appeals from Certain Interlocutory Orders - UndertakingCited  12 Ohio St. 994, Procedure When There is More Than One Claim or Party - Final JudgmentCited  12 Ohio St. 2001, Scope of the Oklahoma Pleading CodeCited  12 Ohio St. 2008, General Rules of PleadingDiscussed  12 Ohio St. 2022, InterpleaderDiscussed at Length

2020-12-03 20:14:02.297152+00

http://www.oscn.net/applications/oscn/DeliverDocument.asp?CiteID=487363

IN THE MATTER OF THE PROTEST TO THE DENIAL OF THE SALES TAX CLAIM FOR REFUND Skip to Main Content Accessibility Statement OSCN Found Document:IN THE MATTER OF THE PROTEST TO THE DENIAL OF THE SALES TAX CLAIM FOR REFUND Previous Case Top Of Index This Point in Index Citationize Next Case Print Only IN THE MATTER OF THE PROTEST TO THE DENIAL OF THE SALES TAX CLAIM FOR REFUND 2020 OK CIV APP 61 Case Number: 118119 Decided: 10/23/2020 Mandate Issued: 11/19/2020 DIVISION I THE COURT OF CIVIL APPEALS OF THE STATE OF OKLAHOMA, DIVISION I Cite as: 2020 OK CIV APP 61, __ P.3d __ IN THE MATTER OF THE PROTEST TO THE DENIAL OF THE SALES TAX CLAIM FOR REFUND OF AT THE BEACH, LLC: AT THE BEACH, LLC, Claimant/Appellant, v. OKLAHOMA TAX COMMISSION, Respondent/Appellee. ADMINISTRATIVE APPEAL FROM THE OKLAHOMA TAX COMMISSION REVERSED Jeffery S. Ludlam, Spencer Habluetzel, HALL & LUDLAM, PLLC, Oklahoma City, Oklahoma, for Claimant/Appellant, Joseph P. Gappa, Elizabeth Field, Sharon R. Sitzman, OKLAHOMA TAX COMMISSION, Oklahoma City, Oklahoma, for Respondent/Appellee. B.J. Goree, Judge: ¶1 At the Beach, LLC, (Claimant) pays sales tax to the Oklahoma Tax Commission each month. Due to an error in computation, Claimant made significant overpayments of its tax liability and it sought refunds according to Oklahoma's Uniform Tax Procedure Code. At the time Claimant overpaid its tax, the statute permitted a taxpayer to file a verified claim within three years from the date of the erroneous payment. But the statute was amended. By the time Claimant filed its claims, the new statute shortened the period to two years. Applying the two-year statute, the Commission denied a portion of the claims. Claimant appeals, asserting the three-year statute applies. We agree with Claimant and reverse the order for the reasons that follow. The Parties' Arguments ¶2 Our task is to determine which statute applies.1 The analysis begins with the Oklahoma Constitution. Article 5, §54 mandates that repeal of a statute shall not affect any accrued right.2 The Tax Commission concluded that Claimant accrued a right to a sales tax refund but it had no substantive right to a statute of limitations, the latter being purely procedural. According to the OTC, the amended statute does not alter Claimant's right to a sales tax refund -- it limits (permissibly) the remedy by changing the operable time period. Thus, the Commission's argument is that the amended statute of limitations is to be given retroactive effect. ¶3 Claimant, on the other hand, argues that the time period is part of the right created by the statute. As an inherent element of the right to claim a refund, Claimant proposes the three-year period is substantive in nature and so the subsequent amendment shortening that period may only be given prospective effect.3 Analysis ¶4 The parties agree that 68 O.S. §227(a) allows a taxpayer to be refunded the amount of sales tax erroneously paid due to an error of computation. 68 O.S. §227(a).4 The 2014 version of the statute [68 O.S. Supp. 2014 §227(b)] provides "Any taxpayer who has so paid any such tax may, within three (3) years from the date of payment thereof file with the Tax Commission a verified claim for refund of such tax so erroneously paid." ¶5 That paragraph was superceded August 26, 2016, and the new law [68 O.S. Supp. 2016 §227(b)(2)] provides: "Upon the effective date of this act, with respect to the [sales tax and use tax], any taxpayer who has so paid such sales or use tax may, within two (2) years from the date of payment thereof file with the Tax Commission a verified claim for refund of such tax so erroneously paid." ¶6 In summary, §227 allows for refund claims relating to state taxes.5 Until August 26, 2016, a taxpayer who has erroneously overpaid may file a claim for a refund within three years from the date of payment. After August 26, 2016, a taxpayer who has erroneously overpaid may file a claim for a refund within two years from the date of payment. It is plain that the Legislature intended to limit the time for a claimant to request a refund, and the period accrues on the date the tax is overpaid.6 What is unclear, though, is whether the Legislature was placing a limit on the right or on the remedy. ¶7 There are two types of statutes of limitation, those that affect the right Hiskett v. Wells,1959 OK 273, ¶11, 351 P.2d 300, 303, and those that affect only the remedy. Trinity Broadcasting Corp. v. Leeco Oil Co., 1984 OK 80, ¶9, 692 P.2d 1364,1367. The distinction is determinative here because when a statute of limitations is amended, as in the present case, the amendment cannot be given retroactive effect if it affects accrued rights. Cole v. Silverado Foods, Inc., 2003 OK 81, ¶7, 78 P.3d 542, 546. ¶8 When a statute creates a new liability, gives rise to an action to enforce it that was unknown to the common law, and fixes the time within which the action may be commenced, that time period is a limit on the right. Hiskett, Id. "A substantive statute of limitation is a condition or limitation on the right sought to be enforced." Hiskett, (syllabus by the Court). ¶9 Statutes affecting procedure only, as distinguished from those that affect substantive rights, may be applied retroactively. Trinity, ¶6. Statutes of limitation are viewed as procedural rather than substantive. Id. (holding that an amendment effected merely a procedural change and could be applied to pre-existing causes of action that were not barred at the time of passage). A statute of limitations does not vest rights in the length of a viable claim (until that claim becomes barred by the statute). Cole, ¶9. When such a statute becomes effective, it affects causes of action already in existence. Id. ¶10 Our analysis is significantly guided by Sun Oil Company v. Oklahoma Tax Commission, 1980 OK 150, 620 P.2d 896. Sun Oil acknowledged 68 Ohio St. 1971 §227 is a procedure for refund of taxes erroneously paid and stated, "if a taxpayer brought his claim within its purview he had a substantive right to the refund." Sun Oil, ¶8. In addition to granting a substantive right, §227 prescribes an administrative remedy to recover taxes erroneously paid. Sun Oil, Id. at ¶12. Although Sun Oil discussed the grounds for a valid refund claim rather than the time period for bringing it, we are persuaded the Court characterized §227 as a statute that created both a right and a remedy. This right did not previously exist at common law. Sullivan v. Oklahoma Tax Commission, 1954 OK 266, ¶11, 283 P.2d 521, 523 ("[T]he State cannot be sued for the recovery of taxes paid in the absence of legislative consent, and the right to recover taxes so paid must therefore be found in a statute"). ¶11 The rationale for Sun Oil is equally applicable in the instant case. The Court observed that the claimant was seeking a refund of money paid to satisfy tax liabilities that accrued under the statute before it was amended. Sun Oil, ¶8. Likewise, At the Beach is seeking a refund of its tax liability that accrued before 2016 when the Legislature shortened the time period for making the claim. ¶12 Shortening the time period of §227 would diminish the compensation Claimant would be entitled to under the former statute. This consequence suggests the amended statute affects a substantive right. "After-enacted legislation that increases or diminishes the amount of recoverable compensation or alters the elements of the claim or defense by imposition of new conditions affects the parties' substantive rights and liabilities." Cole, ¶15. This is true even in cases where the claim is not filed until after the amendment takes effect. Amos v. Spiro Public Schools, 2004 OK 4, ¶8, 85 P.3d 813, 816. Conclusion ¶13 Title 68 O.S. §227 grants a taxpayer a right to a refund of tax erroneously paid which did not exist at common law. It is a substantive right that is conditioned on a timely filed claim. The right accrues when the erroneous tax is paid and the time period to file the claim is an inherent part of that right. A subsequent amendment of the statute cannot affect accrued rights. Claimant, At the Beach, gained a substantive right to sales tax refunds provided that it met the claims procedures within the purview of 68 O.S. Supp.2014 §227(b). Title 68 O.S. Supp.2016 §227(b)(2), and its two-year limitation period in particular, cannot be applied retroactively because doing so would affect an accrued right in violation of Oklahoma Constitution, Art.5, §54. Therefore, Oklahoma Tax Commission Order No. 2019-07-09-05 dated July 9, 2019, is REVERSED. BELL, P.J., and BUETTNER, J., concur. FOOTNOTES 1 The question involves interpretation of tax statutes which is a legal issue that calls for de novo review. Matter of Protest of Hare, 2017 OK 60, §9, 398 P.3d 317, 319.. 2 "The repeal of a statute shall not revive a statute previously repealed by such statute, nor shall such repeal affect any accrued right, or penalty incurred, or proceedings begun by virtue of such repealed statute." Okla. Const., Art.5, §54. 3 Because we agree with Claimant that the order of the OTC must be reversed because it erroneously applied 68 O.S. Supp.2016 §227(b)(2) retroactively, we decline to decide whether that statute violates the constitutional prohibition against the enactment of special legislation. Okla.Const. Art.5, §46. 4 "Any taxpayer who has paid to the State of Oklahoma, through error of fact, or computation, or misinterpretation of law, any tax collected by the Tax Commission may, as hereinafter provided, be refunded the amount of such tax so erroneously paid, without interest." 68 O.S. Supp. 2014 §227(a). This portion of §227 was not changed by the 2016 amendment. 5 The title of the 2016 enactment is: "An Act relating to revenue and taxation; amending 68 Ohio St. 2011, Section 227, as amended by Section 2, Chapter 274, O.S.L. 2014 (68 O.S. Supp. 2015, Section 227), which relates to refund claims for state taxes; and modifying period of limitation with respect to sales and use tax refund claims." 6 Generally, a statute of limitations begins to run when a cause of action accrues, and a cause of action accrues at the time when a litigant first could have maintained his action to a successful conclusion. Sherwood Forest No. 2 Corp. v. City of Norman, 1980 OK 191, ¶10, 632 P.2d 368, 370. Citationizer© Summary of Documents Citing This Document Cite Name Level None Found. Citationizer: Table of Authority Cite Name Level Oklahoma Supreme Court Cases  CiteNameLevel  1954 OK 266, 283 P.2d 521, SULLIVAN v. OKLAHOMA TAX COMMISSIONDiscussed  1959 OK 273, 351 P.2d 300, HISKETT v. WELLSDiscussed  2003 OK 81, 78 P.3d 542, COLE v. SILVERADO FOODS, INC.Discussed  2004 OK 4, 85 P.3d 813, AMOS v. SPIRO PUBLIC SCHOOLSDiscussed  2017 OK 60, 398 P.3d 317, IN THE MATTER OF THE INCOME TAX PROTEST OF HAREDiscussed  1980 OK 150, 620 P.2d 896, Sun Oil Co. v. Oklahoma Tax CommissionDiscussed  1980 OK 191, 632 P.2d 368, Sherwood Forest No. 2 Corp. v. City of NormanDiscussed  1984 OK 80, 692 P.2d 1364, 55 OBJ 2392, Trinity Broadcasting Corp. v. Leeco Oil Co.Discussed Title 68. Revenue and Taxation  CiteNameLevel  68 Ohio St. 227, Refund of Erroneous Payments - HearingDiscussed at Length

2020-01-17 22:02:12.232434+00

Morris

OPINION. MoRRis: In these proceedings, which have been consolidated, the petitioners seek a redetermination of their income-tax liabilities for the calendar years 1922 and 1923, for which years the respondent on February 19, 1927, determined deficiencies as follows: [[Image here]] It is alleged in each of the petitions that the respondent erred in determining that certain income received during the years 1922 and 1923 from the Stinson Irrigation District and the Mendota Irrigation. District in the State of California was taxable and not exempt under section 1211 of the Revenue Act of 1926. *737The petitioners are individuals and citizens of the United States residing in the State of California. During the period from January 1, 1922, to September 1, 1922, the petitioners were engaged in the practice of law as copartners under the firm name of Lindsay & Conley, herein referred to as Lindsay & Conley (old firm), with offices at 1012 Griffith-McKenzie Building, in the City of Fresno, County of Fresno, State of California. During the period from September 1, 1922, the petitioners Lindsay and Conley and one Philip Conley were engaged in the practice of law as copartners under the same firm name as above but herein referred to as Lindsay & Conley (new firm), with offices at the same location as stated in the preceding paragraph. The law firm of Short, Lindsay & Woolley preceded the partnership of Lindsay & Conley (old firm). The Stinson Irrigation District and the Mendota Irrigation District are irrigation districts organized under the provisions of the California Irrigation District Act ” of 1897 entitled “An Act to provide for the organization and government of irrigation districts, and to provide for the acquisition and construction thereby of works for the irrigation of lands embraced within such districts, and, also, to provide for the distribution of water for irrigation purposes ” and Acts amendatory thereof and supplemental thereto. (Acts 3854 to 3886, inclusive, pp., 1425 to 1529, inclusive, Deering, General Laws of California, 1923 Part One.) On October 4, 1921, the board of directors of the Stinson Irrigation District passed the following resolution: On motion of Director Hansen, seconded by Director Mittelstead, and duly carried, the law firm of Lindsay & Conley were retained as attorneys for the district. On December 5, 1921 the board of directors of the Mendota Irrigation District passed the following resolution: Whereas: It appearing to this Board that the appointment of an attorney or attorneys.to attend to the legal matters incident to the voting of bonds and the appropriation of waters, and other matters pertaining to the organization, and carrying on the objects of the district is necessary; And, The firm of: Lindsay & Conley having heretofore acted as attorneys in the guidance of the' legal organization of the district, and in the opinion of this Board are eminently qualified to direct the legal affairs of the District; Therefore: be it Resolved: That the Law firm of Lindsay & Conley, be, and they are hereby employed as attorneys of the Mendota Irrigation District, at a compensation! of six thousand dollars ($6000) per year, together with any necessary personal expenses for out of town work. *738On September 23, 1922, the board of directors of the Stinson Irrigation District passed the following resolution: On account of the retirement of F. W. Docker from the firm of Lindsay & Conley, and owing to the fact that Mr. Docker had, personally, handled all matters relating to Stinson Irrigation District since its organization, while with the firm of Lindsay & Conley, and the Directors believing that it would be desirable to have Mr. Docker continue handling the District’s legal business, on motion of Director Mittelstead, seconded by Director Hansen, and carried, the secretary was instructed to notify Lindsay & Conley terminating their relation with the district on October 5th, 1922, and F. W. Docker was retained at the same monthly compensation at the will of the Board. On March 6, 1923, the board of directors of the Mendota Irrigation District passed" the following resolution: The Board having under consideration the appointment of attorneys for the District, and it appearing that said appointment has inadvertently been delayed, and should have been formally made at the January meeting hereof— the District having availed itself of the services of Lindsay & Conley, Attorneys, (luring the period, subsequent to the expiration of their previous contract, i. e. Deer. 1st 1922, up to this date. Now on motion made by Director Tuft, seconded by Director Pucheu, that Lindsay & Conley be appointed attorneys of the Mendota Irrigation District, and that the compensation be fixed at $150.00 per month for the routine work of the Board. Any further compensation for Court proceedings &c to be determined at the time the necessity arises. Motion duly carried and so ordered. Lindsay & Conley (old firm) received in 1922 from the Stinson Irrigation District the amount of $1,500 organization fees by resolution of the board of directors dated March 7, 1922, and monthly payments of $200, totaling $1,800 to September 7, 1922. Of the amount of organization fees referred to above, $750 pertained to preorgan-ization work performed in 1921 by the predecessor firm of Short, Lindsay & Woolley, and $750 was for organization work performed by Lindsay & Conley (old firm) in 1922. The income-tax returns of the partnerships were filed on the cash receipts and disbursements basis. No oath of office was taken by any of the petitioners in connection with their duties as attorneys for the districts in question. Their fees were paid from funds of the districts and not from the state treasury and their services could have been terminated at any time. No compensation was paid them other than that authorized by the Boards except small amounts for expenses. In the building where the old and new firm of Lindsay & Conley maintained offices there was nothing to indicate on the directory or office door that the firm or any member thereof was counsel for any irrigation districts. Lindsay & Conley (old firm) received in 1922 the amount of $2,516.40 as organization fees of which $2,000 was retained by the *739•old firm and $516.40 was paid to Short, Lindsay & Woolley, the predecessor of the old firm. It also received $4,500 from the irrigation districts for legal services rendered up to September 1, 1922. The partnership interests of the old and new firms stated in terms of percentages were as follows: [[Image here]] The old firm filed a partnership return of income for the calendar year 1922 and reported a net income of $9,158.78. The respondent in his determination increased this amount to $18,168.78, as follows: Amount reported by old firm-$9,158. 78 Added by respondent: Fees from Mendota Irrigation District_ 6, 500. 00 Fees from Stinson Irrigation District_ 2, 510. 00 Amount determined by respondent_18.168. 7S The new firm filed a partnership return of income for the calendar year 1922 and reported a net income of $2,912.01, distributed as follows: C. E. Lindsay-$1,164.80 W. M. Conley_ 1,164. 80 Philip Conley_ 582. 41 Total_ 2, 912. 01 The old firm filed a partnership return of income for the calendar year 1928 and reported a net income of $4,834.84, which was distributed 45 per cent to Lindsay, 35 per cent to Conley, and 20 per cent to Docker. The new firm filed a partnership return of income for the calendar year 1923 and reported a total gross income of $26,224.43 and total deductions amounting to $28,292.47. The petitioners were free to engage in legal work other than that pertaining to the irrigation districts and in fact did so. Petitioner Conley did the actual work for the Mendota Irrigation District and petitioner Docker did the actual work for the Stinson Irrigation District. Neither of the partnerships reported as income any of the fees received during either of the years 1922 or 1923 from the Mendota or Stinson Irrigation Districts. The respondent determined that such fees constituted taxable income. *740The facts in the instant proceedings are not in substance different. from those in the case of Howard v. Commissioner (C. C. A., 5th Cir.), 29 Fed. (2d) 895, in which case the Circuit Court reversed the Board’s decision (10 B. T. A. 62) and held that the compensation there in question was exempt from Federal taxation. The Howard case, however, was reversed by the United States Supreme Court on December 9, 1929, in a per curiam opinion upon the authority of the Supreme Court’s decision in Metcalf & Eddy v. Mitchell, 269 U. S. 514; 46 Sup. Ct. 172; 70 L. Ed. 384. See Blair v. Howard,-U. S.-, decided December 9, 1929, and, we, accordingly, hold that the compensation paid by the irrigation districts to these petitioners is not exempt from Federal taxation. Judgment will he entered for the respondent.

2020-01-17 22:02:12.298191+00

Smith

*743OPINION. Smith: The question presented by this proceeding is whether the deficiency in tax for the fiscal year ended February 28,1921, is barred by the statute of limitations. The respondent contends that it is not by reason of the fact that the petitioner never filed the income and profits-tax return required to be filed by the Revenue Act of 1921; that therefore four years have not elajosed from the date of the filing of the required return to the date of the deficiency notice, namely, September 17, 1926. In support of this proposition the respondent cites Updike v. United States, 8 Fed. (2d) 913; certiorari denied by Supreme Court, 271 U. S. 661; Davis Feed Co., 2 B. T. A. 616; Covert Gear Co., 4 B. T. A. 1025; John Wanamaker Philadelphia, 8 B. T. A. 864; M. Cohn & Sons Co., 9 B. T. A. 87; Fred T. Ley & Co., 9 B. T. A. 749; M. Brown & Co., 9 B. T. A. 753; Keystone Coal & Mining Co., 10 B. T. A. 295; Whitehouse Leather Products Co., 12 B. T. A. 714; Louisville Veneer Mills, 12 B. T. A. 1352; C. A. Lawton Co., 13 B. T. A. 8. The petitioner, on the other hand, relies upon the proposition that it filed the required return on May 16, 1921, and that more than four *744years elapsed from that date to the date when the deficiency notice was mailed to it. In support of this proposition it cites Fred T. Ley & Co., supra; M. Brown & Co., supra; Farmers Elevator Co., 13 B. T. A. 1079; Farmers Cooperative Co., 13 B. T. A. 1080. In John Wanamaker Philadelphia, supra, we stated; * * * The Revenue Act of 1921 clearly required all corporations having a fiscal year ending during the calendar year 1921 to file a return in accordance with the provisions of that Act. Treasury Decision 3305 inferentially relieved taxpayers who or which had filed returns for a fiscal year ended in 1921 under the provisions of the Revenue Act of 1918 from filing second returns under the provisions of the Revenue Act of 1921, provided such second returns would not show any additional tax payable. Treasury Decision 3310 clearly required the filing of such return where an additional tax was payable * * *. The decisions of the Board have been consistent with respect to this proposition. By reason of a change in the law effected by the Revenue Act of 1921, the petitioner had a greater liability for tax for the fiscal year ended February 28, 1921, than it had under the provisions of the Revenue Act of 1918. Upon its return of gross income and deductions therefrom it had a greater liability under the later act than it had under the former. It was therefore required to file a return under the provisions of the later act. This it failed to do. All of the cases relied upon by the petitioner in support of the operation of the statute of limitations and cited above involve cases where the Revenue Act of 1921 did not impose any greater tax liability than was imposed by the Revenue Act of 1918. Thus, in Fred T. Ley & Co., supra, we stated in the syllabus: * * * Petitioner was not liable for an additional tax for sucb taxable year [fiscal year ended February 28, 1921] after the enactment of the Revenue Act of 1921 by reason of any change in the law. * * * We therefore held that it was not required by the regulations of the Commissioner to file a return under the provisions of the Revenue Act of 1921. The same conditions obtained in all of the other cases cited by the petitioner. Since admittedly the petitioner had a greater tax liability under the Revenue Act of 1921 for the fiscal year ended February 28, 1921, than it had under the Revenue Act of 1918 for the same fiscal year, and since it filed no return as required by the Revenue Act of 1921 and the regulations of the Commissioner thereunder, we are of the opinion that the statute of limitations has not operated to bar the assessment and collection of the deficiency determined by the respondent in the amount of $13,848.22. Reviewed by the Board. Judgment will be entered for the respondent.

2020-11-21 03:13:58.031983+00

Joe L. Smith, Jr., and Nancy R. Smith, Petitioners v. Commissioner of Internal Revenue, Respondent Smith v. Commissioner Docket No. 1502-66 United States Tax Court February 14, 1968, Filed *179 Decision will be entered under Rule 50. In order to improve the corporate balance sheet in connection with an application for a television station pending before the FCC, a corporation in 1954 temporarily transferred to its majority stockholder, the petitioner, a $ 40,000 corporate obligation owed to a third party. Petitioner also received additional common stock in the corporation as consideration for his agreement to assume the corporate obligation. In 1961, when it was deemed appropriate to restore the $ 40,000 obligation to the corporation, the following steps were taken: (1) The corporation issued $ 40,000 in debentures to petitioner in exchange for 800 shares of its common stock; (2) petitioner delivered his $ 40,000 check to the creditor in exchange for the outstanding promissory note in that amount; and (3) petitioner transferred the debentures to the creditor in exchange for his $ 40,000 check. Held, under these circumstances, the redemption of stock from petitioner in 1961 was not essentially equivalent to a dividend within the meaning of sec. 302(b)(1) of the 1954 Code. Robert B. Yorty, for the petitioners. Robert A. Roberts, for the respondent. Mulroney, Judge. MULRONEY *477 Respondent determined a deficiency in petitioners' income tax for 1961 in the amount of $ 19,315.21. The issue is whether a corporate distribution of its debentures*181 in the amount of $ 40,000 to Joe L. Smith, Jr., in 1961 in exchange for 800 shares of the corporation's common stock constituted a redemption equivalent to a dividend within the meaning of section 302 of the 1954 Internal Revenue Code. 1 FINDINGS OF FACT Some of the facts were stipulated and they are so found. Joe L. Smith, Jr., and Nancy R. Smith, husband and wife, are residents of Beckley, W. Va. They filed their joint Federal income tax return for 1961 with the district director of internal revenue, Parkersburg, W. Va. Joe L. Smith, Jr., will hereinafter be called the petitioner. At all times material to this case, petitioner was the president and majority stockholder of Joe L. Smith, Jr., Inc. (hereinafter called Smith, Inc.), which corporation was engaged in the commercial-broadcasting business with its principal office in Beckley, W. Va. Early in 1953 Smith, Inc., was granted a permit by the Federal Communications*182 Commission to construct a UHF television station in Charleston, W. Va. The corporation planned to finance the construction of the television station from its retained earnings, from long-term financing with equipment manufacturers, and from two banks, the Beckley National Bank and the Charleston National Bank. Actually, the corporation borrowed money from the Beckley National Bank. The Charleston television station began operations in September 1953. On May 28, 1953, Smith, Inc., borrowed $ 40,000 from one John H. McCulloch, a close friend of the petitioner's family. McCulloch issued a check in that amount payable to Smith, Inc., and it was endorsed by petitioner in his capacity as president of the corporation. The cash receipts journal of the corporation showed the receipt of $ 40,000 on May 28, 1953, and a credit of a note payable to McCulloch in that amount. The corporation's notes payable account in its general ledger recorded under date of June 13, 1953, an obligation of $ 40,000 payable *478 to McCulloch. The corporation prepaid in May 1953 1 year's interest to McCulloch on the loan at the rate of 4 1/2 percent. Smith, Inc., did not issue a promissory note to McCulloch*183 as evidence of the indebtedness. As security for the loan made by him, McCulloch requested and received petitioner's personal promissory note dated July 1, 1953, in the amount of $ 40,000. In March 1954, Smith, Inc., had an application for a permit to construct a VHF television station in Beckley, W. Va., pending before the Federal Communications Commission. A competing application for the same facilities had been filed by one Robert R. Thomas, Jr. Pursuant to its procedures in effect at that time, the Commission notified Smith, Inc., by a letter dated April 8, 1954, that a hearing would be necessary to determine which of the two applicants was best qualified to receive a grant of authority to construct and operate the proposed station. The Commission's letter of April 8, 1954, to Smith, Inc., also raised questions as to the corporation's financial qualifications to construct, own, and operate the proposed television station, stating in part as follows: A review of your application has raised questions concerning the following matters: (1) It appears from your application that you plan to finance the construction and operation of the proposed television station, in part, from *184 existing capital in the amount of $ 70,000. In this connection, it is noted that your balance sheet of October 31, 1953 indicates that you had on that date a negative net current position of $ 180,668 and, therefore, it cannot be determined that you have available funds in the amount of $ 70,000 from existing capital. (2) You indicate that you also contemplate the use of two bank loans which total $ 240,000, but it appears that you have already used $ 100,000 of these loan credits for the construction of Station WKNA-TV, Charleston, West Virginia. This indicates that you have a balance of available credit in the amount of $ 140,000, which amount will be required to meet your current obligations, leaving none of such funds available for the proposed obligations under the instant application, including equipment payments, loan curtailment, probable increased cost of tower now shown as 588 feet above ground and working capital during the first year of operation. (3) While you indicate that deferred payment credit in the amount of $ 202,923 will be available to you, you have not submitted a copy of a letter from an equipment manufacturer agreeing to extend such credit and indicating *185 the terms of payment. The balance sheet of Smith, Inc., as of October 31, 1953, showed current assets in the amount of $ 112,474.40, other assets, $ 5,489.42, fixed assets, $ 403,173.04, and deferred charges, $ 25,615.41. Current liabilities were shown in the amount of $ 278,170.60, accrued liabilities, $ 24,970.76, other liabilities, $ 140,000, capital stock, $ 72,000, and surplus and profit in the amount of $ 31,610.91. The current liabilities consisted of notes payable, $ 157,713.23, notes payable -- RCA, $ 108,652.83, *479 accounts payable -- WJLS, $ 106.69, and accounts payable -- WKNA, $ 11,697.85. In reply to the Commission's letter of April 8, 1954, Smith, Inc., filed an amendment to its application on April 23, 1954, which included a rearranged balance sheet for the corporation as of April 22, 1954. On the revised balance sheet the notes payable to RCA in the amount of $ 108,652.83 and to the Beckley National Bank in the amount of $ 60,000 were listed as "Long-Term Debt" rather than "Current Liabilities." The revised balance sheet showed total current assets in the amount of $ 116,666.91 and total current liabilities in the amount of $ 30,555.38. The current liabilities*186 consisted of notes payable, $ 15,919.12, and accounts payable, $ 14,636.26. On April 21, 1954, Smith, Inc., issued 347 shares of its common stock to Joe L. Smith, Sr., for $ 25,000 and 347 shares of its common stock to Hulett C. Smith (petitioner's brother) for $ 25,000. Also on that date, Smith, Inc., issued 1,250 shares of its common stock to petitioner for $ 90,000. The consideration given by petitioner for these shares was $ 50,000 in cash and his agreement "to take care of" the corporation's obligation to McCulloch in the amount of $ 40,000. The corporation's notes payable account in its general ledger reflected the elimination of this $ 40,000 liability from the books of the corporation under date of April 24, 1954. Petitioner made the subsequent payments of interest on the $ 40,000 obligation to McCulloch until 1961. Petitioner made no payments on principal during this period. In May 1954, Smith, Inc., and Robert R. Thomas, Jr., entered into an agreement under which Smith, Inc., was paid $ 5,000 as reimbursement for part of the costs incurred by it to prosecute its application to construct a television station in the Beckley, W. Va., area and was also given an option to*187 purchase a 40-percent interest in the new television station if the application of Robert R. Thomas, Jr., was granted. Under the agreement, Smith, Inc., withdrew its own competing application then pending before the Federal Communications Commission, and the application of Robert R. Thomas, Jr., was granted by the Commission in June 1954. Smith, Inc., never exercised its option to acquire an interest in the new television station because of objections interposed by Robert R. Thomas, Jr., and a subsequent court action brought by Smith, Inc., was compromised and settled. Smith, Inc., closed its television station in Charleston, W. Va., in February 1955. In 1957 Smith, Inc., sold its Charleston radio station and realized a gain of about $ 106,000. The proceeds of this sale were used to pay off obligations incurred by the corporation in connection with its unsuccessful television operation in Charleston. Smith, Inc., continued to operate its radio station in Beckley, W. Va. The corporation *480 reported the following taxable income before net operating loss deductions during the years 1953 through 1961: YearAmount 1953 1$ 18,864.32  1954(152,213.68) 1955(46,699.09) 1956(35,350.03) 1957 255,953.95  1958($ 58,881.49) 1959(34,386.60) 196055,138.30  1961100,558.41  *188 Late in 1958 Smith, Inc., acquired the majority of the stock in Biggs, Johnston & Withrow, Inc., a publishing firm in Beckley, W. Va., and on December 31, 1959, the newly acquired firm was merged into Smith, Inc. During 1960 Smith, Inc., realized a profit of approximately $ 77,000 from its printing operation and a loss of approximately $ 25,000 from its broadcasting operation. On January 1, 1961, the outstanding stock of Smith, Inc. was owned by the following individuals: Shares Petitioner2,570 Hulett C. Smith720 Joe L. Smith, Sr263 1/2 Christine C. Smith263 1/2 O. F. Cook6 R. L. Trump6 A meeting of the board of directors of Smith, Inc., was held on January 13, 1961, and the minutes of the meeting state in part as follows: The President then announced that during the construction of WKNA-TV he had personally borrowed $ 40,000.00 from John H. McCulloch, with which he purchased stock in the corporation. The President stated that at all times he felt that the loan was a corporate one rather than a personal*189 one, but that he had continued to carry it and pay interest on the obligation rather than attempt to transfer it to the company during the years the company was in financial difficulty. Now that it appears the company is in a position to assume the obligation, the President proposed that it be transferred to the corporation and that, in turn, the President would surrender to the corporation stock in the corporation with a book value of $ 40,000.00. The holder of the obligation has agreed to accept five year six per cent debentures of the corporation and to surrender the personal note. In order to clarify the exchange, it was suggested that the debentures be issued to the President, Joe L. Smith, Jr., in exchange for his personal stock valued at $ 40,000.00 and that he, in turn, transfer the debentures to John H. McCulloch for the surrender by McCulloch of Smith's note. It was pointed out that by the surrender of the $ 40,000.00 in corporate stock by Smith that it might be necessary to request the permission of the Federal Communications Commission to transfer control of the radio stations inasmuch as Smith no longer would have positive control. Smith pointed out that he had made*190 arrangements to acquire additional stock from Joe L. Smith, Christine C. *481 Smith and others, including the First Beckley Corporation, to whom stock was to be issued in settlement of a debt of the corporation to First Beckley Corporation, and also by the repayment to Smith of a loan of $ 8,500.00, due Smith by the corporation. Additionally, the corporation was negotiating with Christine C. Smith to pay a loan from her in the amount of $ 10,000.00 by the issuance of additional stock, which in turn would be acquired by Joe. L. Smith, Jr. On January 24, 1961, Smith, Inc., issued 194 shares of its common stock to the First Beckley Corp. in satisfaction of the Smith, Inc., debt of $ 9,700. These 194 shares were purchased by petitioner from the First Beckley Corp. simultaneously with their issuance. On the same date, Smith, Inc., issued 200 shares of its common stock to Christine C. Smith, petitioner's mother, in repayment of her loan of $ 10,000 to the corporation. These 200 shares were purchased by petitioner from his mother simultaneously with their issuance. Also, on January 24, 1961, Smith, Inc., issued 170 shares of its common stock to petitioner in satisfaction of a loan*191 previously made by him to the corporation in the amount of $ 8,500. On January 27, 1961, petitioner acquired 263 1/2 shares of Smith, Inc., common stock from his mother, Christine, and the same amount of Smith, Inc., common stock from his father, Joe L. Smith, Sr. On February 1, 1961, Smith, Inc., issued $ 40,000 in face amount of its debentures to petitioner in exchange for 800 shares of its common stock. On or about February 1, 1961, petitioner delivered his personal check in the amount of $ 40,000 to McCulloch, receiving in exchange his promissory note dated July 1, 1953, in the amount of $ 40,000. On the same date, petitioner transferred the Smith, Inc., debentures having an aggregate face value of $ 40,000 to McCulloch in exchange for McCulloch's personal check in the amount of $ 40,000. On February 2, 1961, the following individuals owned the outstanding stock of Smith, Inc.: Shares Petitioner2,861 Hulett C. Smith720 O. F. Cook6 R. L. Trump6 No dividends were formally declared by Smith, Inc., during the period from August 1, 1948, to April 30, 1967. Respondent determined that the distribution of debentures in the face amount of $ 40,000 to petitioner in 1961*192 was taxable as a dividend under the provisions of sections 301, 302, and 316. OPINION Petitioner contends that the distribution of the debentures by Smith, Inc., to him in exchange for 800 shares of the corporation's common stock constituted a redemption "not essentially equivalent to a dividend" *482 within the meaning of section 302(b) (1) and therefore qualified as a distribution "in exchange for the stock" under section 302(a). The question whether a distribution is essentially equivalent to a dividend turns upon the facts and circumstances of each case. Kerr v. Commissioner, 326 F. 2d 225 (C.A. 9, 1964), affirming 38 T.C. 723">38 T.C. 723 (1962). In resolving this factual question of dividend equivalence, the courts have developed the following criteria: Was there a bona fide corporate business purpose for the distribution; did the corporation adopt any plan of business contraction or did the transaction actually result in a contraction of the corporate business; was the distribution initiated by the stockholder or by the corporation; was the proportionate ownership of stock by the stockholders changed; what were the amounts, *193 frequency, and significance of dividends in the past; and was there a sufficient accumulation of earned surplus to cover the distribution or was it partly from capital? Kerr v. Commissioner, supra;Genevra Heman, 32 T.C. 479 (1959), affd. 283 F. 2d 227 (C.A. 8, 1960). Petitioner's position is that where both the issue and redemption of stock are dictated by reasons associated with a legitimate corporate business purpose, there being no indication of a tax evasion scheme or a corporate dividend policy evidencing a pattern of tax avoidance, then the redemption of such stock is not essentially equivalent to a dividend. Petitioner cites Keefe v. Cote, 213 F. 2d 651 (C.A. 1, 1954), and Estate of Henry A. Golwynne, 26 T.C. 1209">26 T.C. 1209 (1956), in support of this general proposition. In Keefe v. Cote, supra, the taxpayer was the majority stockholder and an executive officer of a corporation which in 1936, because of a cash shortage, paid taxpayer only a portion of his annual salary in cash and issued a note*194 to him for the balance. During 1937 the corporate officers found that the presence on the corporation's books of the note payable to the principal officer and stockholder reflected adversely on the corporation's credit standing and it was therefore decided to issue him 248 shares of stock in exchange for the cancellation of the promissory note. It was understood that the corporation would redeem these shares when it could do so conveniently. In 1944 the corporation redeemed from the taxpayer the 248 shares issued to him in 1937. The Court of Appeals for the First Circuit concluded that the 248 shares were originally issued to serve the important corporate purpose of improving its balance sheet and credit position and that the subsequent redemption of these shares was merely the final step in carrying out the original corporate purpose. Accordingly, the appellate court held that the redemption of the stock was not essentially equivalent to a dividend within the meaning of section 115(g) of the 1939 Internal Revenue Code. In Estate of Henry A. Golwynne, supra, the factual situation was similar to that in Keefe v. Cote, supra.*195 The decedent was president and *483 sole stockholder of a corporation which, because of its lack of cash, paid the decedent a portion of his salary for the years 1942 through 1945 by issuing him its promissory notes. In order to improve its credit standing, the corporation in 1944 and in 1946 issued a total of 450 shares of preferred stock to decedent in exchange for promissory notes held by him. In 1948 the corporation redeemed 200 shares of the preferred stock and in 1949 an additional 75 shares of such preferred stock were redeemed. This Court held that Keefe v. Cote, supra, was controlling and that because the issuance as well as the redemption of the preferred stock was part of the evident corporate purpose of strengthening the corporation's credit position, the redemption of the stock was not essentially equivalent to a dividend within the meaning of section 115(g) of the 1939 Internal Revenue Code. We believe that Keefe v. Cote, supra, and Estate of Henry A. Golwynne, supra, are controlling here. Actually respondent bases his whole case on the contention that the loan*196 was to petitioner individually and at no time a corporate obligation. We are convinced from all the evidence that the McCulloch loan of $ 40,000 in 1953 was made to Smith, Inc., and not to the petitioner individually. McCulloch's check in that amount was made payable to the corporation, it was endorsed by petitioner as president of the corporation, the loan was recorded on the corporate books as a note payable to McCulloch, and in May 1953 the corporation prepaid a year's interest on the loan. In connection with a pending application by Smith, Inc., for a permit to construct a VHF television station in Beckley, W. Va., the Federal Communications Commission in a letter to the corporation in April 1954 raised questions concerning the corporation's financial qualifications to construct and operate the proposed television station. The Commission pointed out that the corporation's balance sheet as of October 31, 1953, showed a "negative net current position of $ 180,668" which threw doubt on the corporation's ability to finance any portion of the proposed station from existing capital. To remedy this situation Smith, Inc., took several steps which included (1) the issuance of additional*197 shares of its common stock to petitioner and to other members of his family; (2) the assumption by petitioner of the $ 40,000 corporate obligation to McCulloch in exchange for stock; and (3) the shifting of certain other corporate obligations from current to long-term liabilities on the corporate balance sheet. Petitioner testified that when the $ 40,000 corporate obligation was assumed by him there was never any intention that he would ever pay the obligation. Instead, it was understood that the corporation itself would repay McCulloch after the Charleston television station, which had begun operations in September 1953, became a successful operation. In other words, the assumption by petitioner of the obligation was *484 never intended to be anything but a temporary measure undertaken to improve the corporation's financial statements. However, the Charleston television station proved unsuccessful and it was closed down in February 1955. Smith, Inc., incurred heavy operating losses during the period 1955 through 1959 and it was not until 1961, after Smith, Inc., had acquired a profitable printing firm, that it was felt that the McCulloch obligation could be restored to the*198 corporation and that arrangements should be made to repay McCulloch. Accordingly, the following steps were taken on or about February 1, 1961: (1) Smith, Inc., issued $ 40,000 in debentures to petitioner in exchange for 800 shares of its common stock; (2) petitioner delivered his personal check for $ 40,000 to McCulloch in exchange for petitioner's promissory note dated July 1, 1953, in the amount of $ 40,000; and (3) petitioner transferred the corporate debentures in the face amount of $ 40,000 to McCulloch in exchange for McCulloch's personal check in the amount of $ 40,000. The only effect of these transactions, which must be viewed together, was to restore to Smith, Inc., the $ 40,000 obligation it owed to McCulloch prior to the time when petitioner assumed such obligation in 1954. The redemption of petitioner's stock merely was the final step taken in the completion of the corporation's original purpose in the issuance of such shares. Petitioner did not enjoy any monetary or other economic benefit as a result of these transactions. It should also be noted that petitioner, at about the same time that the corporation redeemed 800 shares of stock from him, acquired more than *199 that number of Smith, Inc., shares of stock from various sources, so that his stock interest in the corporation was not diminished by the redemption and, in fact, was increased. We hold, under the particular circumstances of this case, that the redemption of stock from petitioner in 1961 was not essentially equivalent to a dividend within the meaning of section 302(b) (1). Decision will be entered under Rule 50. Footnotes

2020-03-06 15:11:15.676733+00

http://www.search.txcourts.gov/RetrieveDocument.aspx?DocId=96696&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 CONCURRING OPINION I concur in this Court’s judgment affirming the dismissal of appellees’ claims against Marsha McLane, in her official capacity as the Director of the Texas Civil Commitment Office, for lack of subject matter jurisdiction because appellees’ factual allegations in their eighth amended petition do not invoke the trial court’s jurisdiction over those claims. To invoke the trial court’s jurisdiction, it was appellees’ burden to allege facts that affirmatively demonstrate that sovereign immunity from suit has been waived or does not apply. See Hall v. McRaven, 508 S.W.3d 232 , 238 (Tex. 2017) (discussing sovereign immunity and “ultra vires” exception); Klumb v. Houston Mun. Emps. Pension Sys., 458 S.W.3d 1 , 13 (Tex. 2015) (explaining that sovereign immunity does not bar suit to vindicate constitutional rights but that immunity from suit is not waived if constitutional claims are facially invalid); City of El Paso v. Heinrich, 284 S.W.3d 366 , 372 (Tex. 2009) (explaining that ultra vires action requires plaintiff to “allege, and ultimately prove, that the official acted without legal authority or failed to perform a purely ministerial act”); Texas Parks & Wildlife v. Miranda, 133 S.W.3d 217 , 226 (Tex. 2004) (describing plaintiff’s burden to allege facts to demonstrate that jurisdiction exists). I disagree, however, with the Court’s analysis of appellees’ claims brought under section 2001.038 of the Administrative Procedure Act. Because the Legislature granted the Texas Civil Commitment Office the authority to adopt rules, see Tex. Health & Safety Code § 841.141 (stating that Texas Civil Commitment Office by rule shall administer chapter), I would hold that the Texas Civil Commitment Office—not McLane—is the proper party for appellees’ purported rule challenges. See Tex. Gov’t Code § 2001.038 (providing limited waiver of sovereign immunity to challenge validity or applicability of rule and requiring “state agency” to be made party to action); see also id. § 2001.003(7) (defining “state agency” to mean “state officer, board, commission, or department with statewide jurisdiction that makes rules or determines contested cases”); Texas Dep’t of Transp. v. Sefzik, 355 S.W.3d 618 , 622–23 (Tex. 2011) (distinguishing between state agency and official in context of sovereign immunity and ultra vires claims); Texas Dep’t of Pub. Safety v. Salazar, 304 S.W.3d 896 , 904 (Tex. App.— Austin 2009, no pet.) (explaining that state agency, as compared with state official, must be made party to action challenging validity of agency rule). The Court’s opinion assumes without deciding that McLane is a proper defendant for appellees’ claims brought under section 2001.038 “[b]ecause these claims fail as a matter of law.” As described, I would decide the issue and not reach the analysis performed under the assumption. Even under this assumption, however, I cannot join the Court’s analysis. For example, the Court addresses appellees’ argument that rule 810.273 of Title 37 of the Texas 2 Administrative Code constitutes “the unconstitutional deprivation of property” by concluding that appellees’ pleadings are “conclusory allegations [that] are insufficient to overcome sovereign immunity.” See 37 Tex. Admin. Code § 810.273 (Texas Civil Commitment Office, Cost of Housing, Treatment, and Tracking Services) (requiring civilly committed person who is not indigent to be responsible for cost of housing, treatment, and tracking services); see also id. § 810.122(5), (6) (Texas Civil Commitment Office, Definitions) (stating that sexually violent predator is indigent for purposes of statutorily required cost recovery “if the sexually violent predator does not have any income” and defining “income” broadly). The essence of appellees’ takings claim, however, is that McLane may not recover from them any amount of the costs of housing, treatment, and tracking services provided to them, and I would address the substance of this claim. See Andrade v. NAACP of Austin, 345 S.W.3d 1 , 11 (Tex. 2011) (considering substance of constitutional claim in reviewing plea to jurisdiction and noting that immunity is retained unless viable claim pleaded); see also U.S. Const. amend. V (providing that “private property [shall not] be taken for public use, without just compensation”); Tex. Const. art. I, § 17 (providing that “[n]o person’s property shall be taken, damaged, or destroyed for or applied to public use without just compensation being made, unless by the consent of such person”). Addressing the substance of this claim, I question whether funds collected from civilly committed individuals to recover the costs for their housing, treatment, and tracking services are being taken for a “public purpose.” Compare Tex. Health & Safety Code § 841.146(c) (requiring State to “pay the reasonable costs of the person’s treatment and supervision”), with id. § 841.084(a) (requiring civilly committed person who is not indigent to be responsible for cost of housing, treatment, and tracking service “[n]otwithstanding Section 841.146(c)”). But even if the State’s cost recovery is for a “public purpose,” appellees have 3 failed to plead a viable takings claim because they have not alleged facts that would support the conclusion that they did not receive “just compensation”—they have not alleged that they have paid or are required to pay amounts that exceed the actual costs of housing, treatment, and tracking services that have been provided to them. See 37 Tex. Admin. Code § 810.273 (prohibiting Texas Office of Civil Commitment from requiring payment in amount that exceeds actual cost of service); see also Klumb, 458 S.W.3d at 13 ; Andrade, 345 S.W.3d at 11 ; Miranda, 133 S.W.3d at 226 .1 For these reasons, I concur in the Court’s judgment that dismisses all of appellees’ claims against McLane for lack of subject matter jurisdiction. __________________________________________ Melissa Goodwin, Justice Before Justices Goodwin, Baker, and Smith Filed: March 6, 2020 1 Because the relevant statutes and rules require the Texas Civil Commitment Office to seek cost recovery from civilly committed individuals, McLane is not acting ultra vires by seeking such cost recovery in accordance with these statutes and rules. See Hall v. McRaven, 508 S.W.3d 232 , 238 (Tex. 2017) (discussing sovereign immunity and “ultra vires” exception). 4

2013-10-30 07:28:59.132516+00

893 So. 2d 887 (2004) H.R. 10 PROFIT SHARING PLAN Account No. 2656-3314, Individually, and on Behalf of All Other Common Stock Shareholders of Ethyl Corporation v. James MAYEUX, Barbara Richard Mayeux, and Ethyl Corporation. No. 2003 CA 0691. Court of Appeal of Louisiana, First Circuit. September 17, 2004. Opinion Granting Rehearing March 2, 2005. *888 Patrick W. Pendley, Plaquemine, Counsel for Plaintiffs/Appellants H.R. Profit Sharing Plan Account No. 2656-3314 and Robert H. Wesson. William C. Shockey, Baton Rouge, Charles L. Stern, Jr., New Orleans, Counsel for Defendants/Appellees James Mayeux and Barbara Richard Mayeux. David Bienvenu, Jr., John R. Tharp, Baton Rouge, Barry Marionneaux, Plaquemine, Counsel for Defendant/Appellee Ethyl Corporation. Before: GUIDRY, GAIDRY, and McCLENDON, JJ. GUIDRY, J. In this shareholder derivative action, plaintiffs, Robert H. Wesson and H.R. 10 Profit Sharing Plan Account No. 2656-3314, individually and on behalf of all other common stock shareholders of Ethyl Corporation, appeal judgments of the trial court sustaining James and Barbara Mayeux's peremptory exception raising the objection of no cause of action and granting Ethyl Corporation's motion to dismiss the action.[1] For the reasons that follow, we affirm the trial court's judgment sustaining the exception raising the objection of no cause of action and dismiss the appeal to the extent it seeks review of the trial court's granting of the motion to dismiss. FACTS AND PROCEDURAL HISTORY Plaintiffs are shareholders of Ethyl Corporation (Ethyl). On March 6, 1998, Ethyl *889 sold contiguous parcels of land in Iberville Parish, Louisiana, totaling approximately 2,913 acres, to James and Barbara Mayeux (Mayeuxs) for 5.5 million dollars. The act of sale was recorded in the conveyance records of Iberville Parish on March 10, 1998. An act of correction was subsequently performed on April 14, 1998, to amend and correct the legal description of property, which had omitted certain strips of land totaling approximately 11 acres. On March 8, 1999, plaintiffs filed a shareholder derivative action in the Eighteenth Judicial District Court in and for the Parish of Iberville,[2] naming the Mayeuxs and Ethyl as defendants[3] and alleging that the sale to the Mayeuxs was lesionary under La. C.C. arts. 2589-2600. The Mayeuxs and Ethyl thereafter filed declinatory exceptions raising the objection of improper venue, asserting that the proper venue for plaintiffs' action was East Baton Rouge Parish. Following a hearing on these exceptions, a judgment was signed on October 8, 1999, sustaining the exceptions raising the objection of improper venue and transferring the matter to the Nineteenth Judicial District Court in and for the Parish of East Baton Rouge. Thereafter, the Mayeuxs answered plaintiffs' petition and filed a peremptory exception raising the objection of no cause of action, asserting that the plaintiffs' action had perempted because it was not filed in a proper venue or served within one year of the sale. Following a hearing on the exception, the trial court signed a judgment on May 25, 2000, sustaining the Mayeuxs' exception and dismissing the plaintiffs' action with prejudice. Plaintiffs thereafter filed a suspensive appeal with this court on September 13, 2000, seeking review of both the October 8, 1999 and May 25, 2000 judgments. On June 4, 2001, this court dismissed plaintiffs' appeal, finding that the October 8, 1999 judgment was not timely appealed and that the May 25, 2000 partial judgment was not a final judgment. Wesson v. Mayeaux, 2000 CA 2636 (La.App. 1st Cir.6/4/01) (unpublished opinion). Plaintiffs thereafter filed a motion and order in the trial court seeking certification of the May 25, 2000 judgment as final. Following the trial court's subsequent certification, plaintiffs filed a motion to supplement the record on appeal and filed an application for rehearing. This court denied plaintiffs' request for rehearing and plaintiffs thereafter filed an application for a writ of certiorari in the supreme court, which was also denied. On May 30, 2002, Ethyl filed a motion to dismiss plaintiffs' action in the trial court, asserting that there were no longer any viable defendants against whom Ethyl and the shareholder plaintiffs could obtain relief. Following a hearing on the motion, the trial court signed a judgment on August 20, 2002, dismissing plaintiffs' claims without prejudice. Plaintiffs thereafter filed a motion for appeal on October 15, 2002, seeking review of the October 8, 1999, May 25, 2000, and August 20, 2002 judgments. This court, ex proprio motu, issued a rule to show cause why the appeal should not be dismissed. In particular, this court was concerned with the following issues: the October 8, 1999 judgment previously addressed by this court; the timeliness of appeal from the May 25, 2000 *890 judgment; and the August 20, 2002 judgment not being signed by the trial judge. On July 1, 2003, this court issued its decision on the rule to show cause as follows: dismissed the appeal to the extent it sought review of the October 8, 1999 judgment because said judgment was previously addressed by this court in Wesson v. Mayeux, 2000 CA 2636; recalled the rule to show cause and maintained the appeal to the extent that it sought review of the May 25, 2000 judgment, because the appeal delays had not begun to run; and annulled the August 20, 2002[4] judgment, remanded to the trial court for the limited purpose of having the trial judge who heard and decided the matter sign a proper judgment, and directed the trial court to supplement the appellate record with certified copies of the judgment. In accordance with this court's ruling, the trial judge signed a proper judgment on July 14, 2003, and this court subsequently maintained the appeal to the extent it seeks review of the July 14, 2003 judgment. Therefore, only the May 25, 2002 and July 14, 2003 judgments are before this court for review. DISCUSSION No Cause of Action Plaintiffs first assert that the trial court erred in its May 25, 2000 judgment by improperly sustaining the Mayeuxs' exception raising the objection of no cause of action and dismissing their suit as to the Mayeuxs. As stated previously, plaintiffs filed a shareholder's derivative action for lesion beyond moiety in accordance with La. C.C. art. 2589.[5] However, La. C.C. art. 2595 provides that an action for lesion must be brought within a peremptive period of one year from the time of the sale. In the instant case, the sale of the Iberville Parish property took place on March 6, 1998, and plaintiffs filed their action on March 8, 1999. The parties do not dispute that the action was timely filed in the Eighteenth Judicial District Court.[6] However, the Eighteenth Judicial District Court was subsequently found to be a court of improper venue for the action.[7] Louisiana Civil Code article 3462 provides: Prescription is interrupted when the owner commences an action against the possessor ... in a court of competent jurisdiction and venue. If the action is commenced in an incompetent court, or in an improper venue, prescription is interrupted only as to a defendant served by process within the prescriptive period. (Emphasis added.) Although La. C.C. art. 3461 provides that unlike prescription, peremption may not be renounced, interrupted, or suspended, 1982 revision comment c explains that "when an action asserting a right subject to peremption has been commenced or *891 served as provided in La. C.C. art. 3462, the right has been exercised and so long as the action is pending the lapse of the period of peremption does not extinguish the right." Accordingly, in order to avoid peremption of their action, plaintiffs had to serve the Mayeuxs by process within the one-year peremptive period mandated by La. C.C. art. 2595. However, from our review of the record before us, the Mayeuxs were not served by process until March 11, 1999, which falls outside the one-year peremptive period. The plaintiffs, however, assert that despite their failure to serve the Mayeuxs until March 11, 1999, their action is still timely. First, plaintiffs assert that the sale was not perfected until April 14, 1998, when the act of correction was executed, because the act of correction did not correct a clerical error but altered the substance of the sale and as such, had no retroactive effect. Alternatively, plaintiffs assert that if the act of correction did correct a clerical error and is given retroactive effect, it is retroactive to the date of recordation, and not the date of the original sale. As stated previously, following the sale an act of correction was executed between Ethyl and the Mayeuxs. Louisiana Revised Statute 35:2.1, relating to affidavits of correction, provides in part: A. A clerical error in a notarial act affecting movable or immovable property or any other rights, corporeal or incorporeal, may be corrected by an act of correction executed by the notary or one of the notaries before whom the act was passed, or by the notary who actually prepared the act containing the error. The act of correction shall be executed by the notary before two witnesses and another notary public. B. The act of correction executed in compliance with this Section shall be given retroactive effect to the date of recordation of the original act. However, the act of correction shall not prejudice the rights acquired by any third person before the act of correction is recorded where the third person reasonably relied on the original act. The act of correction shall not alter the true agreement and intent of the parties. The plaintiffs assert that the act of correction executed in this case, adding four additional tracts of land totaling approximately 11 acres, did no more than simply correct a clerical error in the original sale and as such, the sale was not completed until this act was executed on April 14, 1998. However, from our review of the record, we do not find that the trial court erred in rejecting this argument. First, both Ethyl and the Mayeuxs demonstrated that it was their intent that these four tracts of property be conveyed in the original sale, but that they were inadvertently omitted from the lengthy property description. The Mayeuxs, subsequent to the March 6, 1998 sale, even acted under the belief that the four tracts had already been conveyed in trying to convey a servitude to Exxon. Further, upon the execution of the act of correction, no additional consideration was paid for the four tracts of land. As such, we find no error in the trial court's determination that the act of correction reflected that the additional four tracts were bargained for and merely omitted from the sale, rather than reflecting that the date of the sale for the additional tracts was April 14, 1998. Plaintiffs, however, further contend that if the act of correction is considered to have corrected a clerical error and is to be given retroactive effect, according to La. R.S. 35:2.1(B) it can only be retroactive to *892 the date of recordation, or March 10, 1998, and not to the date of sale, which was March 6, 1998. According to plaintiffs, if the act of correction is retroactive to March 10, 1998, their action is still timely because the Mayeuxs were served on March 11, 1999. However, this interpretation of the prescriptive articles rejects their plain and unambiguous meaning. At the outset, we reiterate that according to La. C.C. art. 3459, the provisions on prescription governing computation of time also apply to peremption. Louisiana Civil Code article 3454 provides: In computing a prescriptive period, the day that marks commencement of prescription is not counted. Prescription accrues upon the expiration of the last day of the prescriptive period, and if that day is a legal holiday, prescription accrues upon the expiration of the next day that is not a legal holiday. Additionally, La. C.C. art. 3456 provides that if a prescriptive period consists of one or more years, prescription accrues upon the expiration of the day of the last year that corresponds with the date of the commencement of prescription. (Emphasis added.) A plain reading of these codal articles reveals that the date marking commencement, assuming in this case the recordation date of March 10, 1998, is not counted in computing the prescriptive period. However, because the peremptive period in this case is one year, peremption accrues upon the expiration of the day of the last year that corresponds with the date of commencement, which would be March 10, 1999. Therefore, the date to which the act of correction is retroactive is of no moment, as plaintiffs' action is still perempted under either scenario, the petition not having been served on the Mayeuxs until March 11, 1999. Therefore, based on our review of the record and our analysis as outlined above, we find no error in the trial court's judgment sustaining the Mayeuxs' exception raising the objection of no cause of action[8] and dismissing the plaintiffs' action as to the Mayeuxs. Motion to Dismiss In addition to the May 25, 2000 judgment, plaintiffs also appeal from the July 14, 2003 judgment, dismissing the remainder of their suit. Plaintiffs assert that in rendering this judgment, the trial court improperly dismissed Ethyl as a party. However, in their brief before this court, plaintiffs failed to address this issue in their argument. Therefore, in accordance with U.R.C.A. Rule 2-12.4 and La. C.C.P. art. 2162, we consider plaintiffs' appeal of the July 14, 2003 judgment to have been abandoned and dismiss their appeal to the extent that it seeks review of that judgment. CONCLUSION For the foregoing reasons, the judgment of the trial court, sustaining the Mayeuxs' peremptory exception of no cause of action is affirmed. To the extent that plaintiffs appeal from the judgment of the trial court granting Ethyl's motion to dismiss, the appeal is dismissed. All costs of this appeal are to be borne by the appellants, Robert H. Wesson and H.R. 10 Profit Sharing Plan Account No. 2656-3314, individually and on behalf of all other common stock shareholders of Ethyl Corporation. *893 MAY 25, 2000 JUDGMENT AFFIRMED; APPEAL OF JULY 14, 2003 JUDGMENT DISMISSED. MCCLENDON, J., concurs and assigns reasons. MCCLENDON, J., concurs. Although I agree with the majority that the issue of proper venue is res judicata, I note that LSA-R.S. 13:4232 specifically provides an exception to the general rule "[w]hen exceptional circumstances justify relief from the res judicata effect of a judgment." See also Phillips v. Patterson Ins. Co., 98-1849 (La.App. 3 Cir. 5/19/99), 734 So. 2d 1285, writ denied, 99-1826 (La.10/8/99), 750 So. 2d 970. However, as I do not find that such exceptional circumstances are present in the case at bar, I respectfully concur. GUIDRY, J., on rehearing. In our original opinion, we indicated the trial court's October 8, 1999 judgment regarding venue was res judicata for purposes of the instant appeal. Accordingly, we refused to consider the correctness of that ruling in reviewing the subsequent judgment that the instant suit failed to state a cause of action because it was not filed timely in a parish of proper venue. Upon reconsideration, we find it is more appropriate to view the venue judgment in light of the law of the case doctrine, rather than pursuant to the doctrine of res judicata.[1] This rehearing is granted for that limited purpose. Under the law of the case doctrine, an appellate court generally will not, on a subsequent appeal, reconsider its earlier ruling in the same case. Waffle House, Inc. v. Corporate Properties, Ltd., 99-2906, p. 4 (La.App. 1st Cir.2/16/01), 780 So. 2d 593, 596. The Supreme Court has stated that the "`law of the case' doctrine applies to parties who have previously had the identical question presented and decided by an appellate court." Avenue Plaza, L.L.C. v. Falgoust, 96-0173 (La.7/2/96), 676 So. 2d 1077, 1079. In the instant case, we do not believe the law of the case doctrine is applicable to the venue judgment at issue because this Court has never addressed the substantive questions raised by the venue issue. Rather, on two prior occasions this Court has held that appeals taken by plaintiffs, to the extent that they sought review of the venue judgment, were untimely and should be dismissed. At no time has this Court previously addressed or ruled on the merits of the venue issue. See Wesson v. Mayeaux, 00-2636 (La.App. 1st Cir.6/4/01), writ denied, 01-2549 (La.12/7/01), 803 So. 2d 972; H.R. 10 Profit Sharing Plan Account No. 2656-3314, et al. v. Mayeux, 03-0691 (La.App. 1st Cir.7/1/03). Although factually different in several respects, the decision of the Louisiana Supreme Court in Phillips v. Patterson Insurance Company, 97-2748 (La.1/9/98), 704 So. 2d 246, is instructive to the present situation. In Phillips, two defendants in a personal injury suit filed an exception of improper venue that was overruled by the trial court. The defendants did not seek appellate review of that ruling, but subsequently filed an exception of prescription on the grounds that venue was improper and they had not been served within one *894 year of the accident. The trial court sustained the exception of prescription as to the plaintiff's tort claims. On appeal, the Third Circuit reversed the trial court's judgment, concluding the law of the case doctrine precluded relitigation of the venue issue, which the trial court had rejected prior to sustaining the exception of prescription based on improper venue. However, the Supreme Court held the Third Circuit erred because a judgment merely overruling an exception does not constitute law of the case. As additional grounds of error, the Supreme Court noted that: [T]he court of appeal has never previously addressed the venue issue, and the law of the case does not preclude the intermediate court from inquiring into the propriety of the trial court's previous ruling on venue. Even though defendants did not seek supervisory writs after the venue ruling, the trial court's decision on venue was reviewable by the court of appeal and by this court on appeal after trial on the merits, at least for prescription purposes. Phillips, 97-2748 at p. 2, 704 So.2d at 247. Similarly, this Court has never addressed the merits of the venue issue in the instant case. Moreover, plaintiffs are not seeking review of the venue ruling for the purpose of reversing or modifying that judgment. Instead, they contend examination of the propriety of that judgment is essential to a review of the judgment granting defendant's exception raising the objection of no cause of action, since the latter judgment is based on the premise that plaintiffs did not timely file suit in a parish of proper venue. Under these circumstances, we do not believe the law of the case doctrine precludes review of the venue judgment for the limited purpose of deciding the preemption issue raised by defendants' exception of no cause of action. Therefore, we will now consider the correctness of the venue judgment. La. C.C.P. art. 614 provides that a shareholder's derivative action "shall be brought in the parish of proper venue as to the corporation...." (Emphasis added). Since the provision does not specify what the parish of proper venue is as to the corporation, reference must be made to the general rules for venue found in La. C.C.P. art. 42. La. C.C.P. art. 42(4) provides that a suit against a foreign corporation licensed to do business in this state shall be brought in the parish where its primary business office is located as designated in its application to do business in the state. Defendants contend this provision is exclusive and, therefore, East Baton Rouge Parish (Ethyl's designated primary business office) is the only proper venue for this action under La. C.C.P. art. 614. In opposition, plaintiffs argue that, because this shareholder's derivative action is seeking to rescind the sale of immovable property for lesion beyond moiety, it may be filed in the parish where the immovable property in located, which in this case is Iberville Parish. See La. C.C.P. art. 80. In so arguing, plaintiffs rely heavily on Cacamo v. Liberty Mutual Fire Ins. Co., 99-3479 (La.6/30/00), 764 So. 2d 41, which dealt with interpretation of the venue provision for class actions provided by La. C.C.P. art. 593. La. C.C.P. art. 593 A was enacted by the same legislative act as La. C.C.P. art. 614, and utilizes similar language in providing that: An action brought on behalf of a class shall be brought in a parish of proper venue as to the defendant. (Emphasis added). In Cacamo, the Supreme Court held that the plain language of this provision authorized class actions to be brought in any parish proper under La. C.C.P. art. 42 or any of the supplementary provisions thereto *895 provided by articles La. C.C.P. arts. 71-85 or otherwise provided by law. The Court found nothing in the language of art. 593 to suggest a different result. Cacamo, 99-3479 at pp. 4-5, 764 So.2d at 44. Plaintiffs contend that, since the language of La. C.C.P. arts. 593 and 614 is virtually identical, the same interpretation should be applied to art. 614. Plaintiffs' arguments ignore the fact that there is one significant difference in the language of the two provisions. Article 593 provides a class action shall be brought in a parish of proper venue as to the defendant, which the Supreme Court interpreted in Cacamo to mean any parish of proper venue. In contrast, article 614 provides that a shareholder's derivative action shall be brought in the parish of proper venue as to the corporation. "The" is a definite article, suggesting there is only one parish of proper venue as to the corporation in derivative actions. In interpreting laws, courts are required to give the words used their generally prevailing meaning. La. C.C. art. 11. Although the difference is slight, it appears the Legislature intended by the utilization of this distinct language in article 614 to achieve a difference result than that provided in article 593, particularly since both articles were enacted in the same legislative act. Accordingly, after careful consideration, we find that the parish of proper venue as to the corporation under art. 614 is that provided in La. C.C.P. art. 42, which in the instant case is East Baton Rouge Parish. Therefore, having concluded the trial court's venue judgment was correct, we adhere to the result reached in our original opinion. REHEARING GRANTED WITHOUT ORAL ARGUMENT FOR THE LIMITED PURPOSE OF REVIEWING THE VENUE JUDGMENT OF OCTOBER 8, 1999. NOTES [1] Plaintiffs also appeal a judgment of the trial court sustaining the Mayeuxs' and Ethyl's declinatory exceptions raising the objection of improper venue. However, as discussed infra, the appeal from this judgment has been dismissed. [2] H.R. 10 Profit Sharing Plan Account No. 2656-3314 filed the original petition; however, through an amended petition Robert H. Wesson was added as a plaintiff. [3] Alternatively, plaintiffs named Henry C. Page, Jr. as a defendant, alleging gross mismanagement of corporate assets and breach of fiduciary duty owed to the corporation and shareholders. However, Mr. Page was subsequently dismissed from the action. [4] The ruling erroneously refers to the August 20, 2002, judgment as August 8, 2002. [5] La. C.C. art. 2589 provides in part: The sale of an immovable may be rescinded for lesion when the price is less than one half of the fair market value of the immovable. Lesion can be claimed only by the seller and only in sales of corporeal immovables. It cannot be alleged in a sale made by order of the court. [6] The parties assert that the action was timely filed because March 6, 1999, was a holiday and the next available day for filing was March 8, 1999. See La. C.C. art. 3454. [7] Plaintiffs focus the majority of their argument on the issue of venue. However, because the October 8, 1999 judgment regarding venue is final, having been previously addressed by this court and the supreme court, the trial court's decision on that issue is res judicata for purposes of the instant appeal. [8] The peremptory exception raising the objection of no cause of action is the proper procedural device for pleading prescription. Dowell v. Hollingsworth, 94-0171, p. 4 n. 6 (La.App. 1st Cir.12/22/94), 649 So. 2d 65, 68 n. 6, writ denied, 95-0573 (La.4/21/95), 653 So. 2d 572. [1] In order for a judgment to be considered res judicata under La. R.S. 13:4231, it must be "final" in the sense that it "disposes of the merits in whole or in part." Burguieres v. Pollingue, 02-1385, p. 8 (La.2/25/03), 843 So. 2d 1049, 1053. A judgment sustaining a declinatory exception raising the objection of improper venue is an interlocutory judgment, since it determines only a preliminary matter without reaching the merits of a case. Savoie v. Rubin, 01-3275 (La.6/21/02), 820 So. 2d 486, 488.

2020-01-17 22:02:11.990086+00

Smith

*707OPINION. Smith : The only question in issue in this case is the right of the petitioner to deduct from gross income in its income-tax return for the fiscal year ended June 30, 1923, $10,000 representing a portion of a debt owed to it by B. G. Alford & Co., which it claims was ascertained to be worthless in 1923, and for which it set up a reserve in its books of account of $10,000. At the hearing of this proceeding counsel for the respondent stated that it was the respondent’s contention : * * * That the claims of the petitioner in this regard are inconsistent with the real situation and facts in the case, namely that they report their income on a cash receipts and disbursements basis for that year, and the alleged loss was unaseertainable during that year and had not been ascertained during that year, and that their action in passing the resolution upon which the book entries were based was not for the purpose of making a definite charge-off of the indebtedness, nor could it be properly construed under the circumstances as a charge-off. *708The provision of the statute under which the deduction of the $10,000 was made upon the return is section 234(a) of the Kevenue Act of 1921, which provides, so far as is material, as follows: That in computing the net income of a corporation subject to the tax imposed by section 230 there shall be allowed as deductions: * ❖ * * # (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. It was the intention of Congress in the adoption of this provision to permit a taxpayer who had ascertained a debt to be worthless within the taxable year and had charged it off its books of account within that year to deduct the same from gross income in its tax return, and that where it had been determined that a debt was recoverable only in part and the Commissioner was satisfied that the debt was recoverable only in part, the taxpayer might deduct such part from his gross income, provided it had been charged off the books of account. We are satisfied from the evidence in this proceeding that the petitioner had ascertained prior to June 30, 1923, that at least $10,000 of its claim against B. G. Alford & Co. was worthless. We are further satisfied that the fact that the petitioner kept its books of account and made its returns upon a cash receipts and disbursements basis does not operate to bar the petitioner from the deduction claimed. The petitioner had loaned this money to B. G. Alford & Co. It was not a deduction from the gross income at the date the loan was made. It was clearly within the scheme of the statute that the petitioner should be allowed the deduction of the loss of such a loan at some time. We think that the fact that the petitioner kept its books of account and made its tax returns on the basis of cash receipts and disbursements does not prevent it from claiming the deduction of a loss of this character at some time. First National Bank of Omaha, 17 B. T. A. 1358. Since we are satisfied that the B. G. Alford & Co. debt was ascertained to be worthless to the extent of at least $10,000 in the fiscal year ended June 30, 1923, it only remains to consider whether there was such a charge-off of the amount as is required 'by the statute. The evidence of record is conclusive upon the point that the reserve of $10,000 was set up specifically to cover the Alford & Co. loss. In Thomas J. Avery, 5 B. T. A. 872, we stated: The statute does not provide any particular manner for the charging off of a bad debt. We think that the method employed by the petitioner meets the challenge of the statute. If the petitioner were a corporation and the corporation was required to prepare balance sheets for the purpose of determining *709invested capital and the notes receivable were included in the balance sheet at the face value of the notes, there might be a serious question as to whether this method of charging off bad debts met the challenge of the statute. But we think that in the case of this individual for the year 1919, the notation on the note record that the note was charged off to income tax constituted a sufficient compliance with the statute to warrant the petitioner in making the deduction provided the note was ascertained to be worthless within the calendar year 1919. In the instant proceeding we think it is immaterial whether the $10,000 be recorded as a net addition to a reserve for bad debts or as a charge-off of the debt in part. Whichever way it is considered the amount is a legal deduction from the gross income of the fiscal year ended June 30, 1923. The contention of the petitioner is sustained. Judgment will be entered wnder Rule 50.

2020-01-17 22:02:12.027919+00

Smith

*712OPINION. Smith: Petitioner’s principal and first cause of complaint is that the respondent erred in not fixing a value upon the lease for invested capital and amortization purposes. Its theory is that the lease was worth $2 per room per month more than the agreed rental and that this difference for the entire term amounted to $60,000, the amount claimed as the cost and the March 1, 1913, value of the lease. To support this claim the testimony of two witnesses is introduced, Lee Holladay, president of petitioner, and Edward W. Cason, a stockholder, both of whom give their opinion that the lease was worth $60,000. This opinion evidence, however, was given 17 years after the making of the lease and in our opinion does not accord with and is not sustained by the facts. In matters of this kind we are not bound by opinion evidence where it is not in accord with the facts, and subsequent events may not form the basis for fixing a value at a prior date. W. S. Bogle & Co. v. Commissioner, 26 Fed. (2d) 771. In this case the hotel was in course of construction during 1912 and while under construction the owner had it listed for rental with a number of real estate agents and hotel brokers for five or six months. One of these was Edward W. Cason, who finally negotiated the lease to Holladay and Johnston. During construction of the hotel Holladay and Johnston were in search of a hotel to rent and and after examining a number of others, and after declining to rent the Gates Hotel at a minimum of $10 per room monthly, entered into the lease in controversy. It was an arm’s-length agreement and the best that could be had. Edward W. Cason, agent for the owner, testified as follows: *713Q. Were yon acting as agent for Mr. Gates in those rentals? A. Yes, sir. Q. Still agent for Mr. Gates? A. Yes, sir. Q. Receiving a commission from him on his business? A. Every dollar. Q. Did you make any effort to obtain a higher rental from anybody for Mr. Gates than this? A. He had one offer higher. Q. He was not satisfactory, I believe you stated. Did you make any further effort to lease the property? A. Oh, yes; I presented it to different people. I don’t remembgr the net rentals, but we first asked for the property, ten for a period, eleven for a period, twelve for a period, and fifteen for a period. We found that to be too high, and we began looking for a tenant who would fit the property, and that was the result. The Board had before it similar questions in Planters Operating Co., 12 B. T. A. 844, and Lafayette Hotel Co., 5 B. T. A. 800, where hotel leases had been procured by individuals without cost and shortly thereafter transferred to operating corporations for capital stock and it was held that the Commissioner’s determinations of no value for the leases for invested capital or depreciation purposes were correct. Hippodrome Co., 10 B. T. A. 1010. The rental provided in the lease herein represented, apparently, the best judgment of the parties as to the value of the lease at the time it was entered into and we think fairly represents its value at that time. There was so little time intervening between the signing of the lease and March 1, 1913, that there was no change in the situation and the respondent’s determination of no value on either date for invested capital or depreciation purposes is approved. Petitioner further claims that it is entitled to special assessment under section 327 of the Revenue Acts of 1918 and 1921 because of abnormalities in income and invested capital resulting (1) from the exclusion of the alleged value of the lease of $60,000 from invested capital, (2) from the use of borrowed capital, and (3) cost of advertising and low salaries paid to officers. Relative to the exclusion of any value for the lease, it is sufficient to refer to the recent case of West Virginia Malleable Iron Co., 17 B. T. A. 1120, where certain patents were excluded from invested capital and it was claimed this created an abnormality. It was there said: Tbe findings of tbe Board in its above cited opinion is to tbe effect that there was no proven cash value of tbe patent at tbe time it was acquired by tbe petitioner in 1914 and that accordingly it was not entitled to include in invested capital any amount in respect of the patent; further, that it sustained no deductible loss in 1917, when tbe patent was determined to be worthless. Section 207 of tbe Revenue Act of 1917 defines what constitutes *714invested capital. Among other things it is the actual value of tangible property paid in other than cash for stock or shares of a corporation. If the property paid in for the shares had no actual cash value the petitioner is not entitled under the law to the inclusion in invested capital of any amount for the patent paid in. We can not see how there is any proof of abnormality of invested capital where a patent having no cash value is paid in to a corporation for stock or shares and the corporation is denied the right of including in invested capital any amount for the patent. If the patent never had any value it was not entitled to deduct from gross income of 1917 any amount in respect of proof of the worthlessness of the patent. The denial of such a deduction does not cause an abnormality of income. Petitioner claims that the use of its furniture purchased on the installment plan constituted the use of borrowed capital and that, since section 326 (b) provides that “ invested capital ” does not include “ borrowed capital,” there was created an abnormality in capital and income entitling it to special assessment. Assuming for the purpose of this proceeding that the assets purchased on the installment plan and used in the petitioner’s business constituted borrowed capital, there is no proof of whether the amount of such furnishings was abnormal or unusual in the conduct of similar businesses. In W. E. Beckmann Bakers' & Confectioners' Supply Co., 13 B. T. A. 860, we said: Evidence was introduced to show that tangible assets to the extent of approximately $02,000, the title to which was still held by Beckmann, were left in the business and the petitioner contends that such borrowed capital created an abnormality which brings petitioner within the provisions of section 827 of the Revenue Act of 1918. However, the petitioner has not shown what the normal condition in this particular business is. In Peck Coal Corporation, 15 B. T. A. 189, the Board said: The petitioner further contends that the accounts payable and notes payable were in effect borrowed money used by the petitioner in its business in the production of its income and that the total amount of borrowed money, including these items, was so large in comparison with its invested capital as to constitute an abnormality when the gross sales and net income are taken into consideration. The record also discloses that the petitioner during 1920 had accounts receivable in the amount of $56,186.47 and for 1921 had accounts receivable in the amount of $53,580.98. The accounts payable and receivable at the end of each of the years indicate that the petitioner both bought and sold to some extent on credit, but the credit purchases in this case, even if we should hold that they constitute the use of borrowed capital, are not shown to constitute an abnormal situation as contemplated by section 327. The mortgage indebtedness is not explained, but, in our opinion, both the money actually borrowed and the purchases made on credit represented by notes payable are not shown to have constituted such an abnormal condition affecting the petitioner’s capital as is contemplated in section 327. It may well be that the use of as much money as was borrowed by the petitioner and the use of credit of which the petitioner availed itself during the years *715involved to the extent involved in this case was the usual, normal and ordinary course of business dealings by corporations engaged in the same or similar enterprises. Cf. Cohn Goldwater Co., 15 B. T. A. 970; Hub Furniture Co., 11 B. T. A. 303; Camden Woolen Co., 12 B. T. A. 1277. What we have said relative to the use of borrowed capital applies equally to the cost of advertising, Richmond Hosiery Mills, 6 B T. A. 1247, and to amounts of salaries paid to officers. There is no proof that either was abnormal. The salaries paid while petitioner was building up its business may have been conservative, but not abnormally low for a losing business. As soon as success came they were increased proportionately, but not excessively. Section 327(d) expressly provides that it shall not apply where the tax is high merely because the corporation earned within the taxable year a high rate of profit upon a normal invested capital. It seems to us that there is no abnormality in this case which entitles the petitioner to special assessment and that the comparatively large profits in the taxable years are attributable principally to the improved business conditions and the increase in hotel business over former years. Judgment will be entered for the respondent.

2020-01-17 22:02:12.065291+00

Smith

*722OPINION. Smith: Although in the petitions filed in these proceedings numerous errors are alleged on the part of the respondent in the determination of deficiencies, most of these were abandoned at the hearing or else no evidence was offered in support of them. In its brief the petitioner states that one issue is raised by these proceedings, namely, whether the petitioner corporation is entitled to classification as a life insurance company, as defined by section 242 of the Revenue Acts of 1921, 1924, and 1926, for the calendar years 1921 to 1926, inclusive. If this point be decided against the petitioner it presses its claim that, inasmuch as ft kept its books of account and made its returns upon the accrual basis, it is entitled to have regarded as accruals of each calendar year the claims arising in that year which were paid in subsequent years. It likewise admits that upon such basis there should be excluded from the deductions allowed by the Commissioner in the determination of deficiencies the amounts paid in each year in respect of claims arising from injuries or sickness properly belonging to a prior year. As above indicated, the principal contention of the petitioner is that it is entitled to classification as a life insurance company for the years 1921 to 1926, inclusive, under section 242 of the Revenue Acts of 1921,1924, and 1926. This section provides: *723That when used in this title the term “life insurance company” means an Insurance company engaged in the business of issuing life insurance and annuity contracts (including contracts of combined life, health, and accident insurance), the reserve funds of which held for the fulfillment of such contracts comprise more than 50 per centum of its total reserve funds. The genesis of this legislation is explained in part by the reports of the Ways and Means Committee and of the Finance Committee in offering the bill, which later became 'the Revenue Act of 1921, to the respective Houses of Congress. The Finance Committee Report on page 20 states: Sections 242-246 provide a new plan for the taxation of life insurance companies, substantially similar to the plan embodied in the revenue act of 1918 as first adopted by the Senate. The provisions of the present law applicable to life insurance companies are imperfect and productive of constant litigation.. The proposed plan would tax life insurance companies on the basis of their investment income from interest, dividends, and rents, with suitable deductions for expenses fairly chargeable against such investment income. * * * See also National Life Insurance Co. v. United States, 277 U. S. 508, especially the dissenting opinion of Mr. Justice Brandéis. Unquestionably the litigation that was referred to in the Finance Report is Mutual Benefit Life Insurance Co. v. Herold, 198 Fed. 199; 201 Fed. 918; Penn Mutual Life Insurance Co. v. Lederer, 252 U. S. 523; New York Life Insurance Co. v. Edwards, 271 U. S. 109; the last two of such cases being cited by Mr. Justice Brandéis in his dissenting opinion in National Life Insurance Co. v. United States, supra. It is apparent to us that Congress meant to classify as life insurance companies under section 242 those companies which are well recognized as life insurance companies in popular speech and by the laws of several States as distinguished from all other companies. In Ritter v. Mutual Insurance Co. of New York, 169 U. S. 139, it was stated: Life insurance imports a mutual agreement, whereby the insurer, in consideration of the payment by the assured of a named sum annually or at certain times, stipulates to pay a larger sum at the death of the assured. * * * Under the laws of practically all of the States, including those of West Virginia, life insurance companies are dealt with differently from all other companies. Laws specifically provide the manner in which the reserve of a life insurance company shall be computed. It is well recognized that this reserve must be built up over a period of years to meet the payment called for by the policy at the expected date of death of the insured. The petitioner admits that it was not a life insurance company or even an insurance company within the contemplation of the statutes of the State of West Virginia. *724The policies issued by the petitioner as agent of the Inter-Ooean Casualty Co. were not ordinary life policies. It is true that they generally provided that if death resulted within a period of 90 days from an accident, the company would pay a death benefit and where death was not the result of an accident the company would pay a small funeral benefit. In Jones v. Prudential Insurance Co. of America, 236 S. W. 429, it is stated: * * * In an ordinary life policy the insurer contracts to pay a certain sum of money when satisfactory proof is made that the insured has died. Death is the contingency which must happen that will create liability under the contract. Liability attaches under such a policy when death occurs, and the policy is in good standing irrespective of the cause of the death, whether it be brought about by natural causes, by intention, or by accident; and, in the broad sense, any life insurance policy is accident insurance, if perchance the death is occasioned by reason of an accident. On the other hand, the primary contingency insured against in an accident insurance policy is that no accident will befall the insured under the terms of the policy and in such time as the policy is kept alive. To be sure, a policy of accident insurance is life insurance in the broad sense, in that the insurer contracts to pay a certain sum of money when satisfactory proof is made that the insured has died as a result of an accident. See Logan v. Insurance Co. 146 Mo. 114, 47 S. W. 948; Woodlock v. Aetna Life Insurance Co. (Sup.) 225 S. W. 994. In the instant proceedings it is admitted that the State of West Virginia did not recognize the petitioner as an insurance company, but it is nevertheless contended that the State, through its insurance department, did recognize it as carrying on an insurance business, and that the department had checked up the petitioner’s books of account. Elaborate argument is made to the effect that although the petitioner is incorporated and acts as agent of the Inter-Ocean Casualty Co. in West Virginia and other States, it is, nevertheless, an insurance company in fact; that its authorization as agent is so broad as to constitute it an independent company; that it has liabilities to its policyholders and maintains reserves to meet such liabilities ; and that the total of these reserves is held for the fulfillment of its contracts. We do not think that it is necessary to answer all of the petitioner’s arguments with respect to its claims that it is an insurance company. It is not recognized as such by the Insurance Department of the State of West Virginia. It is recognized only as agent of the Inter-Ocean Casualty Co. The policies which it issues are policies of that company. The fact that under its agreement with the Inter-Ocean Casualty Co. it had very broad powers does not change the fact that it was, nevertheless, an agent of that company. The evidence does not show that the petitioner is required to maintain any reserve funds for the fulfillment of the contracts of its principal. *725The Inter-Ocean Casualty Co. is liable upon all of the policies and the State of West Virginia is satisfied to let it transact business in that State through the petitioner as its agent. In United States v. Fidelity Trust Co., 222 U. S. 158, the court stated with respect to the proper construction of section 3 of the Act of June 27, 1902: * * * The statute does not invite speculation in a new nomenclature, or attempt to reach profounder conceptions than those familiar to the law. When it speaks of interests absolutely vested in possession we presume that it uses familiar legal expressions in their familiar legal sense. * * * Applying this principle to the interpretation of section 242 of the Revenue Acts of 1921, 1924, and 1926, and to the evidence of record in this case, it is impossible to conceive how the petitioner has any valid claim to be classed as a life insurance company. Reviewed by the Board. Decision will be entered u/nder Rule 50.

2021-03-19 01:00:36.799381+00

https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2020cv0921-15

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA NANCY NORTON, Plaintiff, v. Civil Action No. 20-0921 (CKK) UNITED STATES OF AMERICA, Defendant. MEMORANDUM OPINION (March 18, 2021) Plaintiff Nancy Norton brings this action against Defendant United States of America under the Federal Tort Claims Act (“FTCA”), alleging that she suffered injuries when she tripped and fell on the White House grounds. See Am. Compl., ECF No. 9, ¶¶ 2, 18–20. Pending before the Court is Defendant’s [10] Motion to Dismiss. Defendant claims that this Court lacks jurisdiction over Plaintiff’s claim because her exclusive remedy is through the Federal Employees’ Compensation Act (“FECA”), and not the FTCA. In the alternative, Defendant argues that even if Plaintiff may obtain relief under the FTCA, this Court lacks subject matter jurisdiction because Plaintiff failed to exhaust her administrative remedies prior to commencing this civil action. Upon consideration of the pleadings, the relevant legal authorities, and the record as a whole, the Court GRANTS Defendant’s Motion to Dismiss because it lacks subject matter jurisdiction over Plaintiff’s claim. 1 1 This Court’s consideration has focused on the following documents: • Def.’s Mem. in Supp. of Mot. to Dismiss Am. Compl. (“Def.’s Mem.”), ECF No. 10-1; • Pl.’s Opp’n to Def.’s Mot. to Dismiss (“Pl.’s Opp’n”), ECF No. 12; and • Def.’s Reply in Supp. of Mot. to Dismiss Am. Compl. (“Def.’s Reply”), ECF No. 13. 1  I. BACKGROUND Plaintiff’s claim in this action stems from an injury she suffered during the White House Easter Egg Roll (hereinafter referred to as the “Easter Egg Roll”) on April 22, 2019, which was held at the White House in President’s Park. See Am. Compl. ¶¶ 12, 18–26. According to Plaintiff, she was hired by Rosedale Marketing LLC, a private company, to work at the Easter Egg Roll. Id. ¶ 14. Plaintiff alleges that, during a break from work, she sustained severe injuries when she tripped and fell on an unsecured cord on an asphalt walkway in President’s Park. Am. Compl. ¶¶ 18–26. Plaintiff contends that Defendant negligently maintained the White House grounds and walkways in an unsafe condition during the event, and that Defendant knew, or, in the exercise of reasonable care, should have known that the asphalt walkway was “extremely dangerous and posed a risk of severe injury to event attendees.” Id. ¶¶ 27, 31. Plaintiff further claims that Defendant, as the host of the Easter Egg Roll, breached its duty of care owed to her by failing to place warning signs on the walkway or “correct the dangerous condition by the unsecured cord.” Id. ¶¶ 30, 32. Plaintiff subsequently began the administrative process to obtain monetary damages under the FTCA for personal injuries. On August 6, 2019, Plaintiff filed an administrative tort claim with the United States Department of Justice (“DOJ”). Id. ¶ 3. On September 24, 2019, DOJ acknowledged receipt of Plaintiff’s claim and informed her that it was forwarded to the White House. Id. ¶ 4. Plaintiff then initiated this civil action on April 7, 2020, claiming that she had not received a response from the White House as of that date. Compl., ECF No. 1, ¶ 6. On July 13, 2020, the White House informed Plaintiff that it had forwarded her administrative tort claim to the National Park Service (“NPS”). Am. Compl. ¶ 7. The next day, Defendant filed a motion to dismiss Plaintiff’s original complaint. See ECF No. 7. On July 21, 2020, Plaintiff herself submitted a copy of her administrative tort claim to NPS, attaching to it her correspondence from DOJ and the White House. Am. Compl. ¶ 7. 2  On July 24, 2020, Plaintiff filed an amended complaint, addressing her efforts to submit her claim to NPS since she first filed this lawsuit on April 7, 2020, and providing additional details regarding her alleged employment at the Easter Egg Roll. See id. ¶¶ 6–8, 13–16. On August 14, 2020, Defendant moved to dismiss Plaintiff’s Amended Complaint, contending that the Court lacks jurisdiction over Plaintiff’s claim for two reasons. First, Defendant claims that Plaintiff was working as a volunteer at the Easter Egg Roll, and therefore, pursuant to the Volunteers in the Parks Act (“VPA”), 54 U.S.C. § 102301 , Plaintiff would have been considered a federal employee whose exclusive remedy for any injury sustained is through the FECA. Def.’s Mem. at 1. Second, Defendant argues that even if the FTCA applies rather than the FECA, this Court still lacks jurisdiction over Plaintiff’s claim because she failed to exhaust her administrative remedies prior to filing her complaint. Id. Defendant’s Motion is now ripe for the Court’s review. II. LEGAL STANDARD Defendant moves to dismiss Plaintiff’s claim for lack of subject matter jurisdiction. A court must dismiss a case pursuant to Federal Rule of Civil Procedure 12(b)(1) when it lacks subject matter jurisdiction. In determining whether there is jurisdiction, the Court may “consider the complaint supplemented by undisputed facts evidenced in the record, or the complaint supplemented by undisputed facts plus the court’s resolution of disputed facts.” Coal. for Underground Expansion v. Mineta, 333 F.3d 193 , 198 (D.C. Cir. 2003) (citation omitted); see also Jerome Stevens Pharm., Inc. v. Food & Drug Admin., 402 F.3d 1249 , 1253 (D.C. Cir. 2005) (“[T]he district court may consider materials outside the pleadings in deciding whether to grant a motion to dismiss for lack of jurisdiction.”). In reviewing a motion to dismiss pursuant to Rule 12(b)(1), courts must accept as true all factual allegations in the complaint and construe the complaint liberally, granting plaintiff the benefit of all inferences that can be drawn from the facts alleged. See Settles v. U.S. Parole 3 Comm’n, 429 F.3d 1098 , 1106 (D.C. Cir. 2005) (“At the motion to dismiss stage, counseled complaints as well as pro se complaints, are to be construed with sufficient liberality to afford all possible inferences favorable to the pleader on allegations of fact.”); Koutny v. Martin, 530 F. Supp. 2d 84 , 87 (D.D.C. 2007) (“[A] court accepts as true all of the factual allegations contained in the complaint and may also consider undisputed facts evidenced in the record.” (internal citations and quotation marks omitted). Despite the favorable inferences that a plaintiff receives on a motion to dismiss, it remains the plaintiff’s burden to prove subject matter jurisdiction by a preponderance of the evidence. Am. Farm Bureau v. U.S. Env’t Prot. Agency, 121 F. Supp. 2d 84 , 90 (D.D.C. 2000). “Although a court must accept as true all factual allegations contained in the complaint when reviewing a motion to dismiss pursuant to Rule 12(b)(1), [a] plaintiff[’s] factual allegations in the complaint . . . will bear closer scrutiny in resolving a 12(b)(1) motion than in resolving a 12(b)(6) motion for failure to state a claim.” Wright v. Foreign Serv. Grievance Bd., 503 F. Supp. 2d 163 , 170 (D.D.C. 2007) (internal citations and quotation marks omitted). A court need not accept as true “a legal conclusion couched as a factual allegation” or an inference “unsupported by the facts set out in the complaint.” Trudeau v. Fed. Trade Comm’n, 456 F.3d 178 , 193 (D.C. Cir. 2006) (internal citation and quotation marks omitted). III. DISCUSSION In its Motion, Defendant first contends that this Court lacks jurisdiction over Plaintiff’s claim because her exclusive remedy is through the FECA. Def.’s Mem. at 1. According to Defendant, Plaintiff was a “volunteer” at the Easter Egg Roll, and therefore, pursuant to the VPA, she is afforded the protections and benefits of a federal employee, including workers’ compensation through the FECA for any injury sustained while volunteering. Id. Defendant also contends that even if the FTCA applies, the Court still lacks jurisdiction over Plaintiff’s claim 4 because she failed to exhaust her administrative remedies before filing her complaint in April 2020. Id. at 2. The Court concludes that Plaintiff failed to satisfy the FTCA’s exhaustion requirement prior to commencing her civil action, and so it does not consider Defendant’s arguments regarding whether Plaintiff was a volunteer subject to the FECA. A. Exhaustion of Administrative Remedies Under the FTCA, a plaintiff may sue the government for “personal injury . . . caused by the negligent or wrongful act or omission of any employee of the Government.” 28 U.S.C. § 1346 (b)(1). In order to bring suit under the FTCA, however, a claimant must first satisfy the FTCA’s exhaustion requirement under 28 U.S.C. § 2675 (a). This section provides: An action shall not be instituted upon a claim against the United States for money damages for . . . personal injury . . . caused by the negligent or wrongful act or omission of any employee of the Government . . . unless the claimant shall have first presented the claim to the appropriate Federal agency and his claim shall have been finally denied by the agency in writing and sent by certified or registered mail. The failure of an agency to make final disposition of a claim within six months after it is filed shall, at the option of the claimant any time thereafter, be deemed a final denial of the claim for the purposes of this section. 28 U.S.C. § 2675 (a) (emphasis added). The Supreme Court has interpreted this section to mean that “[t]he FTCA bars claimants from bringing suit in federal court until they have exhausted their administrative remedies.” McNeil v. United States, 508 U.S. 106 , 113 (1993). A claimant’s failure to “heed [the FTCA’s] clear statutory command” warrants dismissal of his claim. Id. (upholding dismissal of FTCA claim for lack of jurisdiction when plaintiff failed to exhaust administrative remedies); see Henderson v. Ratner, No. CV 10-5035, 2010 WL 2574175 , at *1 (D.C. Cir. 2010) (affirming dismissal of FTCA claim when “[claimant] failed to demonstrate that he exhausted his administrative remedies before filing suit in the district court”). 5  Here, Defendant argues that Plaintiff failed to satisfy the FTCA’s exhaustion requirement by commencing a civil action before NPS received Plaintiff’s administrative tort claim. Def.’s Mem. at 14. Plaintiff filed her initial complaint before this Court on April 7, 2020, approximately three months before submitting her administrative claim to NPS on July 21, 2020. See Am. Compl. ¶ 7. Therefore, Plaintiff failed to adhere to the FTCA’s exhaustion requirement. Plaintiff, however, contends that because she submitted her administrative claim to DOJ on August 6, 2019, and then waited approximately seven months for the White House to respond after it had received her claim from DOJ on September 24, 2019, Defendant “cannot now seek to undermine” Plaintiff’s “good faith effort to comply” with the FTCA. Pl.’s Opp’n at 8–9. Plaintiff’s “good faith effort” is insufficient to bypass the FTCA’s exhaustion requirement. Under the FTCA, “exhaustion occurs once a claimant has presented the appropriate federal agency with a claim . . . and the agency has (1) denied the claim in writing or (2) failed to provide a final disposition within six months of the claim’s filing.” Cureton v. U.S. Marshals Serv., 322 F. Supp. 2d 23 , 27 (D.D.C. 2004) (emphasis added); Menifee v. U.S. Dep’t of the Interior, 931 F. Supp. 2d 149 , 161 (D.D.C. 2013) (same). This requirement “enables the agency to investigate and ascertain the strength of a claim . . . [and] determine whether settlement or negotiations to that end are desirable.” GAF Corp. v. United States, 818 F.2d 901 , 920 (D.C. Cir. 1987); see also Wilbur v. C.I.A., 355 F.3d 675 , 677 (D.C. Cir. 2004) (citation omitted) (“Exhaustion of administrative remedies is generally required before seeking judicial review ‘so that the agency has an opportunity to exercise its discretion and expertise on the matter and to make a factual record to support its decision.’”). Here, Plaintiff contends that Defendant had notice of her administrative claim “for over a year.” Pl.’s Opp’n at 9. But NPS did not receive notice of Plaintiff’s administrative claim until 6 the White House forwarded it to the agency on July 13, 2020, Am. Compl. ¶ 6, and it was not until July 21, 2020, that Plaintiff submitted her claim directly to NPS, id. ¶ 7. Moreover, Plaintiff has not explained why she did not know that NPS was the “appropriate Federal agency,” § 2675(a), or why she believed DOJ was the appropriate agency, other than stating that it is “an agent of Defendant,” Pl.’s Opp’n at 8. Accordingly, Plaintiff’s argument that she made a “good faith effort to comply” with the FTCA’s exhaustion requirement is not enough. The exhaustion of administrative remedies can be jurisdictional or non-jurisdictional. See Avocados Plus Inc. v. Veneman, 370 F.3d 1243 , 1247–48 (D.C. Cir. 2004) (discussing the distinction). Non-jurisdictional exhaustion is “a judicially created doctrine requiring parties who seek to challenge agency action to exhaust available administrative remedies before bringing their case to court.” Id. at 1247 . Jurisdictional exhaustion, however, “requires [the plaintiff to] resort to the administrative process as a predicate to judicial review.” Id. The D.C. Circuit has consistently held that the “FTCA’s requirement of filing an administrative complaint with the appropriate agency prior to instituting an action [is] jurisdictional.” Simpkins v. Dist. of Columbia, 108 F.3d 366 , 371 (D.C. Cir. 1997); see, e.g., Odin v. United States, 656 F.2d 798 , 802 (D.C. Cir. 1981) (stating that section 2675(a) is a “‘jurisdictional prerequisite[]’ to suit”); GAF Corp., 818 F.2d at 904–05 (stating section 2675(a) imposes a “jurisdictional prerequisite to the maintenance of a tort suit against the United States”). In addition, an agency denial, or deemed denial after six months, is also part of this jurisdictional prerequisite. See McNeil, 508 U.S. at 112 (“The most natural reading of [section 2675(a)] indicates that Congress intended to require complete exhaustion . . . before invocation of the judicial process”); Chien v. United States, No. 17-2334 (CKK), 2019 WL 4602119 , at *8 (D.D.C. Sept. 23, 2019) (same). Furthermore, courts in this Circuit have found that a “court may not waive the FTCA’s exhaustion requirement on 7 equitable grounds.” Chien, 2019 WL 4602119 , at *8 (citation omitted); Corsi v. Mueller, 422 F. Supp. 3d 51 , 73 (D.D.C. 2019) (same); cf. Smith v. Clinton, 253 F. Supp. 3d 222 , 238 (D.D.C. 2017) (rejecting plaintiffs contention that “exhaustion would be futile” because the “FTCA’s exhaustion requirement is jurisdictional and cannot be excised”), aff’d, 886 F.3d 122 (D.C. Cir.). Therefore, although it took approximately ten months for the White House to inform Plaintiff that NPS received her administrative tort claim, Plaintiff cannot rely on this fact alone as the basis for the Court to waive the exhaustion requirement. Next, Plaintiff suggests that the “lengthy delay” by the White House satisfies the FTCA’s exhaustion requirement as the statute provides that the “failure of an agency to make final disposition of a claim within six months after it is filed shall . . . be deemed a final denial of the claim.” § 2675(a); see Pl.’s Opp’n at 9 (“Defendant has had notice of Plaintiff’s claim for over a year, and [] Defendant delayed for ten months in sending the claim from the White House to NPS.”) This argument also fails because it is the “claimant’s responsibility to submit [her] tort claim to the appropriate federal agency.” Young-Bey v. Unity Med. Healthcare, 217 F. Supp. 3d 304 , 309 (D.D.C. 2016) (emphasis added); id. at 309–10 (rejecting plaintiff’s argument that he submitted his claim to appropriate agency by submitting it to a grantee of the appropriate agency); cf. McNeil, 508 U.S. at 111 (emphasis added) (finding the “command that an ‘action shall not be instituted . . . unless the claimant shall have first presented the claim to the appropriate Federal agency and his claim shall have been finally denied by the agency’” to be “unambiguous”). The Court reiterates that Plaintiff has not explained why she believed submitting her claim to DOJ would be sufficient to satisfy the FTCA’s procedural requirements, or why she was unable to find out that NPS was the appropriate agency given that she sustained her injuries in President’s Park, a National Park. 2 2 See The President of the United States lives in a National Park, NPS.gov, https://www.nps.gov/ whho/index.htm (last visited Mar. 18, 2021). 8  Finally, Plaintiff’s amended complaint also cannot satisfy the FTCA’s exhaustion requirement. Under the FTCA, the appropriate analysis is whether the claimant exhausted her administrative remedies at the time she filed her complaint, not whether the exhaustion requirement was ultimately satisfied at a later date. See Hurt v. Lappin, 729 F. Supp. 2d 186 , 190 (D.D.C. 2010) (“Even though the six-month period has now expired, the relevant analysis is whether [plaintiff] had exhausted his administrative remedy at the time he filed his complaint.”); McNeil, 508 U.S. at 111 (rejecting plaintiff’s argument that subsequent receipt of formal denial from an agency is sufficient to satisfy the exhaustion remedies). As a result, “a premature ‘complaint cannot be cured through amendment, but instead, plaintiff must file a new suit.’” Harrod v. U.S. Parole Comm’n, No. 13-774 (RMC), 2014 WL 606196 , at *1 (D.D.C. 2014) (collecting cases); Edwards v. Dist. of Columbia, 616 F. Supp. 2d 112 , 117 (D.D.C. 2009) (internal citations omitted) (“[T]he failure to exhaust administrative remedies prior to filing suit cannot be remedied by amending the complaint at a later date.”). Accordingly, Plaintiff’s amended complaint, which incorporates the updates in the procedural history and addresses her employment during the Easter Egg Roll, cannot cure the defect in this case, nor can the Court bypass the FTCA’s exhaustion requirement. See McNeil, 508 U.S. at 12 (“Every premature filing of an action under the FTCA imposes some burden on the judicial system. . . . The interest in orderly administration of this body of litigation is best served by adherence to the straightforward statutory command”); Duplan v. Harper, 188 F.3d 1195 , 1199 (10th Cir. 1999) (“Allowing claimants [] to bring suit under the FTCA before exhausting their administrative remedies and to cure the jurisdictional defect by filing an amended complaint would render the exhaustion requirement meaningless and impose an unnecessary burden on the judicial system.”). Furthermore, the Court cannot grant Plaintiff’s request to stay the proceedings, rather 9 than dismiss her case. See McNeil, 508 U.S. at 113 (holding a claimant’s “fail[ure] to heed [the FTCA’s clear statutory command” warrants dismissal of his case). B. Dismissal Without Prejudice Lastly, the Court addresses whether it should dismiss Plaintiff’s amended complaint with or without prejudice. Although the Supreme Court has affirmed a dismissal with prejudice for failure to comply with section 2675(a), see McNeil, 508 U.S. at 113 , courts in this Circuit have often dismissed such cases without prejudice, see, e.g., Simpkins, 108 F.3d at 372 (reversing in part district court’s dismissal with prejudice and remanding for dismissal without prejudice); M.J. v. Georgetown Uni. Med. Ctr., No. 13-5321, 2014 WL 1378274 , at *1 (D.C. Cir. 2014) (modifying district court’s dismissal pursuant to Simpkins); Chien, 2019 WL 4602119 , at *8 (applying same standards); Hurt, 729 F. Supp. 2d at 191 (granting defendant’s motion to dismiss without prejudice). Therefore, the Court’s dismissal of this case based on Plaintiff’s failure to exhaust her administrative remedies will be without prejudice. IV. CONCLUSION The Court concludes that Plaintiff has failed to exhaust her administrative remedies as required by the FTCA. Accordingly, this Court is without subject matter jurisdiction over Plaintiff’s claim. For the foregoing reasons, Defendant’s [10] Motion to Dismiss is GRANTED and the case shall be DISMISSED WITHOUT PREJUDICE. An appropriate Order accompanies this Memorandum Opinion. /s/ COLLEEN KOLLAR-KOTELLY United States District Judge 10

2021-03-19 05:08:42.731631+00

https://www.nebraska.gov/apps-courts-epub/public/viewOpinion?docId=N00007660PUB

Nebraska Supreme Court Online Library www.nebraska.gov/apps-courts-epub/ 03/19/2021 12:08 AM CDT - 636 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports STATE v. STELLY Cite as 308 Neb. 636 State of Nebraska, appellee, v. Malik M. Stelly, appellant. ___ N.W.2d ___ Filed March 12, 2021. No. S-20-635. 1. Postconviction: Constitutional Law: Appeal and Error. In appeals from postconviction proceedings, an appellate court reviews de novo a determination that the defendant failed to allege sufficient facts to dem- onstrate a violation of his or her constitutional rights or that the record and files affirmatively show that the defendant is entitled to no relief. 2. Postconviction: Judgments: Appeal and Error. Whether a claim raised in a postconviction proceeding is procedurally barred is a question of law. When reviewing a question of law, an appellate court reaches a conclusion independent of the lower court’s ruling. 3. Postconviction: Judgments: Proof. In a postconviction proceeding, an evidentiary hearing is not required when (1) the motion does not contain factual allegations which, if proved, constitute an infringement of the movant’s constitutional rights, rendering the judgment void or voidable; (2) the motion alleges only conclusions of fact or law without supporting facts; or (3) the records and files affirmatively show that the defendant is entitled to no relief. 4. Postconviction: Appeal and Error. In determining whether a motion for postconviction relief contains factual allegations that, if proved, con- stitute an infringement of the movant’s constitutional rights and whether the records and files affirmatively show the defendant is entitled to no relief, an appellate court considers whether the allegations are procedur- ally barred. 5. ____: ____. A motion for postconviction relief cannot be used as a substitute for an appeal or to secure a further review of issues already litigated on direct appeal or which were known to the defendant and counsel at the time of the trial and which were capable of being raised, but were not raised, in the defendant’s direct appeal.  - 637 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports STATE v. STELLY Cite as 308 Neb. 636 6. Appeal and Error. An alleged error must be both specifically assigned and specifically argued in the brief of the party asserting the error to be considered by an appellate court. 7. Postconviction: Effectiveness of Counsel: Appeal and Error. A motion for postconviction relief asserting ineffective assistance of trial counsel is procedurally barred when (1) the defendant was represented by a different attorney on direct appeal than at trial, (2) an ineffective assistance of trial counsel claim was not brought on direct appeal, and (3) the alleged deficiencies in trial counsel’s performance were known to the defendant or apparent from the record. 8. ____: ____: ____. A claim of ineffective assistance of appellate counsel which could not have been raised on direct appeal may be raised on postconviction review. 9. Trial: Evidence. There are three components of a true violation under Brady v. Maryland, 373 U.S. 83 , 83 S. Ct. 1194 , 10 L. Ed. 2d 215 (1963): (1) The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; (2) that evidence must have been suppressed by the State, either willfully or inadvertently; and (3) prejudice must have ensued. 10. Effectiveness of Counsel: Proof. In order to establish a right to post- conviction relief based on a claim of ineffective assistance of coun- sel, the defendant has the burden, in accordance with Strickland v. Washington, 466 U.S. 668 , 104 S. Ct. 2052 , 80 L. Ed. 2d 674 (1984), to show that counsel’s performance was deficient and that counsel’s defi- cient performance prejudiced the defense in his or her case. 11. Effectiveness of Counsel: Presumptions: Proof. The two prongs of the ineffective assistance of counsel test—deficient performance and prejudice—may be addressed in either order, and the entire ineffective- ness analysis is viewed with a strong presumption that counsel’s actions were reasonable. 12. Effectiveness of Counsel: Proof. To show that counsel’s performance was deficient, a defendant must show that counsel’s performance did not equal that of a lawyer with ordinary training and skill in criminal law. 13. Trial: Prosecuting Attorneys: Words and Phrases. Generally, pros- ecutorial misconduct encompasses conduct that violates legal or ethical standards for various contexts because the conduct will or may under- mine a defendant’s right to a fair trial. 14. Postconviction. An evidentiary hearing is not required when a motion for postconviction relief alleges only conclusions of fact or law without supporting facts. Appeal from the District Court for Douglas County: Shelly R. Stratman, Judge. Affirmed.  - 638 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports STATE v. STELLY Cite as 308 Neb. 636 Malik M. Stelly, pro se. Douglas J. Peterson, Attorney General, and Austin N. Relph for appellee. Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ. Freudenberg, J. NATURE OF CASE The defendant appeals from an order of the district court denying his pro se motion for postconviction relief without an evidentiary hearing. The defendant asserts that the trial record demonstrates the probability that the extraction of information from his cell phone found at the scene of the crime took place before the crime occurred. The defendant concludes that if law enforcement extracted information from his cell phone before the crime, then law enforcement had his cell phone before the crime and had unlawfully searched it before obtaining a war- rant. Related to this claim, the defendant asserts that the State committed various acts of prosecutorial misconduct during trial and concealed exculpatory evidence in violation of the prosecution’s duty under Brady v. Maryland. 1 The allegedly exculpatory evidence the prosecution concealed is the original disc containing the full extraction report, which the defend­ ant believes would show that the extraction occurred before the crime. The defendant asserts that both trial counsel and appellate counsel were ineffective in failing to discover that the State had concealed such exculpatory information that he believes is contained on the disc. We affirm. BACKGROUND Malik M. Stelly was convicted of first degree murder, use of a deadly weapon to commit a felony, and possession of a deadly weapon by a prohibited person. 1 Brady v. Maryland, 373 U.S. 83 , 83 S. Ct. 1194 , 10 L. Ed. 2d 215 (1963).  - 639 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports STATE v. STELLY Cite as 308 Neb. 636 Trial The facts underlying Stelly’s convictions are set forth in detail in our opinion resolving Stelly’s direct appeal. 2 We reiter­ate those facts from the trial record most pertinent to Stelly’s current postconviction appeal. After the “ShotSpotter” system in Omaha, Nebraska, indi- cated shots were fired at 2:37 a.m. on January 11, 2017, the victim was found on a residential sidewalk, dead of multiple gunshot wounds to the head. Witnesses described a Chrysler PT Cruiser driving away. One witness described the PT Cruiser as having rust around the wheel wells. Shell casings and two cell phones were found at the scene. An LG cell phone was found in the street about 10 to 15 feet from the victim’s body. A ZTE cell phone was found in the victim’s pocket. Later that day, officers obtained a search warrant and extracted data from the LG cell phone found in the street. The data indicated the cell phone belonged to Stelly. Officers surveilled the apartment complex where Stelly lived, finding a PT Cruiser in the parking lot that was reg- istered to Stelly’s friend, Royce White. Pursuant to a search warrant, officers later searched Stelly’s apartment and the PT Cruiser. Stelly’s fingerprint was recovered from the interior door- frame of the PT Cruiser, which had damage to the wheel wells on the driver’s side. Evidence adduced at trial showed that White had loaned Stelly the PT Cruiser before the shooting, because Stelly’s car had been in an accident. A hat was seized from Stelly’s apartment that, due to time- stamped photographs on Stelly’s social media profile, officers believed Stelly had worn the day of the crime. Blood found on the hat was tested, and the victim’s DNA was not excluded as the major contributor to the DNA contained therein, with a probability of that DNA’s coming from someone other than the victim being 1 in 47.4 nonillion. Stelly was not excluded as the major contributor to the DNA collected from inside the 2 State v. Stelly, 304 Neb. 33 , 932 N.W.2d 857 (2019).  - 640 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports STATE v. STELLY Cite as 308 Neb. 636 headband of the hat, and the probability of that DNA’s having come from someone other than Stelly was 1 in 1.01 octillion. DNA found on the LG cell phone was tested, and Stelly was not excluded as the major contributor, with a probability of that DNA’s having come from someone other than Stelly at 1 in 4.12 sextillion. The district court denied Stelly’s pretrial motion to suppress evidence obtained from searching the contents of the LG cell phone. Trial counsel had argued that the warrant, and the affi- davit in support thereof, were insufficient because they identi- fied the ZTE cell phone found in the victim’s pocket rather than the LG cell phone. At the suppression hearing, the warrant and attached affidavit were received into evidence. The affidavit recited the facts of the shooting and that an LG model cell phone was found in the street about 10 feet from the victim. The affidavit stated it was unknown who the LG cell phone belonged to and that an examination of the electronic data contained in the cell phone would be a benefit to the investigation. The affidavit also stated that the electronic device to be searched was in the lawful possession of the Omaha Police Department and was “found in the street at the scene of a homicide and seized as evidence.” But elsewhere in the affidavit, the device to be searched was identified as the ZTE cell phone. Likewise, the warrant that was issued identified the ZTE cell phone as the device to be searched. The warrant was issued January 11, 2017, after which the LG cell phone found in the street was searched. The officer who swore the affidavit testified at the suppres- sion hearing that he noticed after the search that he had made an error when listing the ZTE cell phone. The officer applied for and obtained another search warrant referencing only the LG cell phone. Officer Ryan Hinsley testified at the motion to suppress hearing that the cell phone review began early in the morning on January 11, 2017, in order to identify the owner of the LG cell phone found at the scene of the crime. Officer Thomas  - 641 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports STATE v. STELLY Cite as 308 Neb. 636 Queen testified that as part of the police department’s evi- dence processing protocols, the cell phone was “hooked up” to a “Cellebrite” machine in order to unlock the cell phone and look at the identification data. Queen did not know exactly when this occurred, but it was some hours after he was called in to work, subsequent to the crime. Officer Nicholas Herfordt testified during the motion to suppress hearing that the LG cell phone was booked into property at 10:21 a.m. on January 11, 2017, and that he retrieved it at 2:11 p.m. that same day, after a search warrant had been obtained. Herfordt testified that he began the process of extracting all of the raw data from the LG cell phone at 6:49 p.m. on January 11 and that the extraction was completed at 6:58 p.m. The district court held that the inadvertent defect in the original search warrant was cured by reference to the affidavit used to obtain the warrant, which was attached thereto. At trial, the State presented photographs of Stelly that were taken with his cell phone and posted on a social media website, one of which showed Stelly wearing the hat that Stelly’s and the victim’s blood were later found on. The photographs were posted at approximately 8 p.m. on January 10, 2017. Exhibit 590 is one such photograph, attached to which is an “Upload Ip” from the social media’s business records show- ing the photograph was uploaded on January 11, 2017, at “2:06:24 UTC.” Exhibit 591 is a photograph of two bottles of cognac cham- pagne Stelly appeared to be holding in the prior photograph. It was uploaded to the social media site, according to its business records, at “1:50:43 UTC” the same date. The State also presented exhibit 589, a picture of a puppy and conversations on January 8, 2017, on social media regard- ing Stelly’s potential purchase of the puppy, in the course of which Stelly mentions driving a PT Cruiser. Several witnesses testified that the term “UTC” stands for coordinated universal time, which is approximately 5 or 6 hours before central time.  - 642 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports STATE v. STELLY Cite as 308 Neb. 636 The State also presented cell phone records indicating that from approximately 8:15 p.m. until just before 11 p.m. on January 10, 2017, Stelly’s cell phone was near White’s house and the crime scene. Further, between 1:43 and 1:51 a.m. on January 11, Stelly had a text message conversation in which he told someone that he was “bored” and “wanna act bad.” Exhibit 576 contains call records and cell phone loca- tion records. Exhibit 592 is an “Extraction Report” from Cellebrite show- ing the text messages and the time they were read and sent, which was between 1:43 and 1:51 a.m. on January 11, 2017. Direct Appeal Following his convictions and sentencing, Stelly filed a direct appeal with new counsel. He alleged that the trial court erred in denying his motion to suppress the search of his cell phone and 18 different claims of ineffective assistance of trial counsel. Regarding the motion to suppress, Stelly argued that the warrant was not particular enough in its description of the cell phone to be searched and that the affidavit did not cure the deficiency. We disagreed, holding that the detailed information in the supporting affidavit, referred to and accompanying the warrant, demonstrated that the reference to the ZTE cell phone was an inadvertent scrivener’s error and cured such defect, and that the affidavit and warrant together described with sufficient particularity the item to be searched. The claims of ineffective assistance of counsel included two claims related to the LG cell phone. First, Stelly claimed that trial counsel had failed to investi- gate the source of calls to White’s cell phone from two specific telephone numbers which would have revealed that officers called White’s cell phone themselves after illegally search- ing the LG cell phone found near the victim’s body without a warrant. Second, Stelly claimed trial counsel failed to consult with and call as a witness an independent cell phone expert  - 643 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports STATE v. STELLY Cite as 308 Neb. 636 who, upon analyzing the LG cell phone found near the victim’s body, would have testified that the data officers purportedly extracted from the LG cell phone was not in fact present on it and that one or more officers manufactured cell phone evi- dence. Such expert would also have testified that officers sent and received text messages and voice calls using the LG cell phone, but testified falsely and failed to disclose this fact to trial counsel, the trial court, and the jury. We held that the trial record affirmatively refuted the first claim. We explained that we had already held in our analysis of the motion to suppress that the search of Stelly’s LG cell phone was pursuant to a valid warrant. We found the trial record insufficient to resolve the second claim with respect to deficient conduct, and we did not decide whether the trial record was sufficient to determine whether Stelly was prejudiced from the alleged deficient conduct. Motion for Postconviction Relief In an amended motion for postconviction relief filed on January 9, 2020, Stelly presented three alleged grounds for vacating his convictions. “Ground 1” was the allegation that his convictions were obtained in violation of due process, because evidence was admitted that was inadmissible due to the illegality of the searches and seizures which produced the evidence. This alleg- edly unlawfully obtained evidence included data from Stelly’s cell phone, which evidence Stelly claimed was extracted before the crime, at a time when there was no probable cause to do so, and was not found at the scene of the crime, but, rather, was in the possession of law enforcement before the crime. Stelly asserted that the search of the cell phone and other places was warrantless because the sworn affidavits in support of the war- rants were issued after the searches. “Ground 2” was the allegation that Stelly’s convictions were obtained as a result of prosecutorial misconduct. This pros- ecutorial misconduct allegedly included staged, perjured, and  - 644 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports STATE v. STELLY Cite as 308 Neb. 636 false testimony. In this regard, Stelly again alleged that the data from his cell phone was extracted before the crime, which he asserted rendered exhibits 590 through 592 inadmissible as a search and seizure without probable cause or a warrant. Stelly did not allege newly discovered evidence but sur- mised the time of extraction based on the testimony at the pretrial hearing on his trial counsel’s motion to suppress. Specifically, Stelly pointed out Herfordt’s testimony that data extraction was conducted at 6:49 to 6:58 p.m. on January 11, 2017. Stelly asserted this testimony was inconsistent with the testimony of Hinsley that the cell phone review began early in the morning on January 11, 2017. Stelly also claimed that the “metadata” contained in exhib- its 590 and 591 demonstrated that the printouts were created at 1:50 and 2:06 a.m. on January 11, 2017, before the crime occurred. Stelly asserted, based on the “World Book,” that “Universal Time Coordinate is not a time zone.” He did not explain, however, how precisely this connected to his argument that the times of 1:50 and 2:06 a.m. were when the data extrac- tion of the cell phone took place rather than when he posted onto social media. “Ground 3” contained allegations of ineffective assistance of both trial counsel and appellate counsel. For trial counsel, Stelly elaborated that “[f]or the following reasons set forth in Ground 1 and Ground 2 trial counsel was ineffective based on the mishandling of the fourth amendment violation claim,” which ineffective assistance led to the admission of exhibits 576 and 589 through 592. Among other things, Stelly argued that through discovery, as well as through evidence presented at the pretrial hearings and at trial, trial counsel should have realized and argued that the data from his cell phone was extracted before the crime occurred. In this regard, he reiter- ated his claim that the “metadata” from exhibits 590 and 591 show those printouts were “created” January 11, 2017, at 1:50 and 2:06 a.m. before the crime occurred, proving the cell phone was not found at the crime scene.  - 645 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports STATE v. STELLY Cite as 308 Neb. 636 As to his claims against appellate counsel, Stelly incorpo- rated all prior allegations, including those against trial counsel, and explained: Through the evidence provided to the trial counsel and appeallate [sic] counsel through the discovery process, trial counsel and appeallate [sic] counsel should have argued (Ev. #1) data was extracted before this crime occurred, and Exhibits 2, 3, 5, 6, 7, 8, and 13 are affi- davits and applications for issuance of a search warrant, not signed search warrants from a judge (Referencing Ground 1 section 1). Again, Stelly repeated his claim that the “metadata” from exhibits 590 and 591 show that the printouts were “created” January 11, 2017, at 1:50 and 2:06 a.m. before the crime occurred, proving the cell phone was not found at the crime scene. Stelly concluded that “[t]he mishandling of the defend­ ants fourth amendment violation claim amounts to the defend­ ant being prejudiced” and that both trial counsel’s and appel- late counsel’s performance were deficient and their deficient performance prejudiced him by depriving him of a fair trial. He asserted that but for the ineffective assistance, no reason- able fact finder would have found him guilty of the underly- ing offenses. On April 22 and July 2, 2020, Stelly filed additional docu- ments setting forth additional information which he asked the court to take into consideration, along with the verified motion for postconviction relief. It is unclear if the court did so. Stelly seemed to reiterate in these filings that the cell phone was not found at the crime scene, because the data from the cell phone was extracted before the crime. Again, in making the argu- ment that the data was extracted before the crime, Stelly relied on testimony at the motion to suppress hearing and at trial rather than on any newly discovered evidence. He theorized that, because the time of extraction proves the cell phone was not at the scene of the crime, the affidavit asserting the cell phone was found near the victim at the crime scene contained  - 646 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports STATE v. STELLY Cite as 308 Neb. 636 a knowingly false statement and was therefore invalid. The April 22 filing does not mention ineffective assistance of counsel, but the July 2 filing asserts that trial counsel and appellate counsel should have argued that statements in the affidavits that the cell phone was found near the victim at the crime scene were false and recklessly made. This allegedly prejudiced Stelly by allowing the introduction of inadmissible evidence, such as exhibits 589 through 591. Order Denying Postconviction Relief On August 13, 2020, the district court, without an eviden- tiary hearing, denied the amended motion for postconviction relief. The court explained that the claims relating to viola- tions of due process rights and prosecutorial misconduct were procedurally barred because they could have been brought on direct appeal. The court found that all Stelly’s allegations of ineffec- tive assistance of appellate counsel relate to the same issues addressed within the ineffective assistance of trial counsel claims and that all such claims were either procedurally barred or affirmatively refuted by the trial record. Citing to State v. Sellers, 3 the postconviction court concluded that Stelly’s ineffectiveness claim regarding trial counsel’s and appellate counsel’s failure to discover exculpatory evidence was dif- ficult to decipher, but failed because it set forth no more than conclusory allegations with regard to the lack of investigation and did not specifically identify any exculpatory evidence the investigation would have procured. The court also noted that much of Stelly’s argument was based on a misunderstanding of the evidence at trial. For instance, the court elaborated as to exhibits 590 and 591 that the times of 1:50 and 2:06 a.m. were when the photographs were downloaded to social media rather than when they were downloaded by law enforcement. After the court’s order denying postconviction relief, Stelly moved to compel the Douglas County Attorney who 3 State v. Sellers, 290 Neb. 18 , 858 N.W.2d 577 (2015).  - 647 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports STATE v. STELLY Cite as 308 Neb. 636 handled his prosecution to surrender the entire case file. Stelly specifically requested police reports and all copies of affidavits and search warrants. He made no reference in the motion to a disc containing an extraction report for his cell phone. The court denied the motion. On September 2, 2020, Stelly appealed from the district court’s order denying postconviction relief. ASSIGNMENTS OF ERROR Stelly assigns as error that (1) the State committed a Brady violation by failing to disclose the disc containing the extraction report for his cell phone information, which allegedly would demonstrate that the cell site location, call detail records, text history, social media posts, and pictures entered into evidence through exhibits 566, 576, and 590 through 592 were fraud­ ulently misrepresented as being extracted from the device after the crime; (2) trial counsel and appellate counsel were ineffec- tive in failing to raise this alleged Brady violation, which they would have discovered had they demanded a copy of the disc to resolve the discrepancy between witness testimony that the extraction occurred a little before 7 p.m. on January 11, 2017, and witness testimony that the extraction occurred in the early morning hours of January 11; and (3) there was plain error committed during trial through the prosecutor’s failure to cor- rect its witnesses’ false testimony pertaining to the dates and times of exhibits 590 through 592. STANDARD OF REVIEW [1] In appeals from postconviction proceedings, an appellate court reviews de novo a determination that the defendant failed to allege sufficient facts to demonstrate a violation of his or her constitutional rights or that the record and files affirmatively show that the defendant is entitled to no relief. 4 [2] Whether a claim raised in a postconviction proceeding is procedurally barred is a question of law. When reviewing 4 State v. Parnell, 305 Neb. 932 , 943 N.W.2d 678 (2020).  - 648 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports STATE v. STELLY Cite as 308 Neb. 636 a question of law, an appellate court reaches a conclusion i­ndependent of the lower court’s ruling. 5 ANALYSIS [3] Stelly asserts that the district court erred in denying his motion for postconviction relief without an evidentiary hear- ing. The Nebraska Postconviction Act provides: A prisoner in custody under sentence and claiming a right to be released on the ground that there was such a denial or infringement of the rights of the prisoner as to render the judgment void or voidable under the Constitution of this state or the Constitution of the United States, may file a verified motion, in the court which imposed such sentence, stating the grounds relied upon and asking the court to vacate or set aside the sentence. . . . Unless the motion and the files and records of the case show to the satisfaction of the court that the prisoner is entitled to no relief, the court shall cause notice thereof to be served on the county attorney [and] grant a prompt hearing thereon . . . . 6 In a postconviction proceeding, an evidentiary hearing is not required when (1) the motion does not contain factual alle- gations which, if proved, constitute an infringement of the movant’s constitutional rights, rendering the judgment void or voidable; (2) the motion alleges only conclusions of fact or law without supporting facts; 7 or (3) the records and files affirm­ atively show that the defendant is entitled to no relief. 8 [4,5] In determining whether a motion for postconviction relief contains factual allegations that, if proved, constitute an infringement of the movant’s constitutional rights and whether the records and files affirmatively show the defendant is entitled to no relief, we consider whether the allegations 5 State v. Harris, 267 Neb. 771 , 677 N.W.2d 147 (2004). 6 Neb. Rev. Stat. § 29-3001 (Reissue 2016). 7 See State v. Allen, 301 Neb. 560 , 919 N.W.2d 500 (2018). 8 See State v. Parnell, supra note 4 .  - 649 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports STATE v. STELLY Cite as 308 Neb. 636 are procedurally barred. 9 Generally, a motion for postconvic- tion relief cannot be used as a substitute for an appeal or to secure a further review of issues already litigated on direct appeal or which were known to the defendant and counsel at the time of the trial and which were capable of being raised, but were not raised, in the defendant’s direct appeal. 10 [6] While Stelly makes many arguments in his brief, an alleged error must be both specifically assigned and spe- cifically argued in the brief of the party asserting the error to be considered by an appellate court. 11 To the extent Stelly makes arguments not specifically assigned as error, we do not address them. Ineffective Assistance Stelly argues in relation to his second assignment of error that both trial counsel and appellate counsel violated his Sixth Amendment rights by “not addressing the Brady violation of the defense not being given the disc or a copy of the disc containing the Cellebrite extraction report for the device.” 12 This disc allegedly would have demonstrated that the cell site location, call detail records, text history, social media posts, and pictures entered into evidence through exhibits 566, 576, and 590 through 592 were fraudulently misrepresented at trial as being extracted from the device after the crime, when in fact they were extracted before the crime. Stelly alleges that both trial counsel and appellate counsel would have discovered this had they demanded a copy of the disc to resolve what Stelly considers to be a discrepancy between witness testimony that the extraction occurred a little before 7 p.m. on January 11, 2017, and witness testimony that the extraction occurred in the early morning hours of January 11. Stelly infers the 9 See id. 10 See id. 11 State v. Filholm, 287 Neb. 763 , 848 N.W.2d 571 (2014). 12 Brief for appellant at 12.  - 650 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports STATE v. STELLY Cite as 308 Neb. 636 disc would show the data was extracted from the cell phone before the crime, based on this allegedly conflicting testimony and his reading of exhibits 590 through 592. Stelly concludes a disc showing the data was extracted before the crime would be exculpatory, because it would negate a nexus between the crime alleged and the item to be searched and would have invalidated the search warrant, which would have made most of the evidence against him inadmissible under the exclusion- ary doctrine. Stelly’s claim against trial counsel was not brought on direct appeal. While there is a common theme surrounding Stelly’s cell phone and law enforcement tampering, we read the post- conviction allegation against trial counsel to be distinct from those brought on direct appeal. Stelly alleged on direct appeal that trial counsel had failed to investigate the source of calls to White’s cell phone from two specific telephone numbers that would have revealed officers called White’s cell phone them- selves after a warrantless search of the LG cell phone found at the scene of the crime, a claim which we found to be without merit. Stelly also asserted on direct appeal that trial counsel failed to call as a witness an independent cell phone expert who would have testified that the data the officers purportedly extracted from the LG cell phone was not in fact present and was manufactured, a claim which we did not determine on direct appeal. These claims are distinct from the current alle- gation that the data from the cell phone was extracted before the crime. [7] A motion for postconviction relief asserting ineffec- tive assistance of trial counsel is procedurally barred when (1) the defendant was represented by a different attorney on direct appeal than at trial, (2) an ineffective assistance of trial counsel claim was not brought on direct appeal, and (3) the alleged deficiencies in trial counsel’s performance were known to the defendant or apparent from the record. 13 Stelly was 13 State v. Williams, 295 Neb. 575 , 889 N.W.2d 99 (2017).  - 651 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports STATE v. STELLY Cite as 308 Neb. 636 represented by new counsel on direct appeal. He relies on testi- mony and exhibits presented at the pretrial hearing and at trial to support his allegations of ineffective assistance, evidence which was known to him and was apparent from the record. And the current allegations of ineffective assistance of trial counsel were not raised on direct appeal. Therefore, Stelly’s claim against trial counsel is procedurally barred. [8] In contrast, this postconviction proceeding was Stelly’s first opportunity to assert that his appellate counsel was inef- fective. A claim of ineffective assistance of appellate counsel which could not have been raised on direct appeal may be raised on postconviction review. 14 But the district court did not err in denying, without an evidentiary hearing, Stelly’s claim for postconviction relief based on the alleged ineffective assist­ ance of appellate counsel. First, we agree with the State that the claims made in the second assignment of error were not made in Stelly’s post- conviction motion. The postconviction motion made no refer- ence to a Brady violation or to a disc containing the Cellebrite extraction report that either trial counsel or appellate counsel should have obtained. This court will not consider an issue on appeal from the denial of postconviction relief that was not raised in the motion for postconviction relief or passed upon by the postconviction court. 15 [9-12] Second, we agree with the district court that the record affirmatively refutes Stelly’s claim of ineffective assist­ ance of appellate counsel for failing to discover and challenge the alleged Brady violation. There are three components of a true Brady violation: (1) The evidence at issue must be favor- able to the accused, either because it is exculpatory, or because 14 State v. Sellers, supra note 3. 15 See, State v. Oliveira-Coutinho, 304 Neb. 147 , 933 N.W.2d 825 (2019); State v. Vela, 297 Neb. 227 , 900 N.W.2d 8 (2017); State v. Thorpe, 290 Neb. 149 , 858 N.W.2d 880 (2015); State v. Thomas, 262 Neb. 138 , 629 N.W.2d 503 (2001).  - 652 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports STATE v. STELLY Cite as 308 Neb. 636 it is impeaching; (2) that evidence must have been suppressed by the State, either willfully or inadvertently; and (3) preju- dice must have ensued. 16 In order to establish a right to post- conviction relief based on a claim of ineffective assist­ance of counsel, the defendant has the burden, in accordance with Strickland v. Washington, 17 to show that counsel’s perform­ ance was deficient and that counsel’s deficient performance prejudiced the defense in his or her case. 18 The two prongs of this test—deficient performance and prejudice—may be addressed in either order, and the entire ineffectiveness analy- sis is viewed with a strong presumption that counsel’s actions were reasonable. 19 To show that counsel’s performance was deficient, a defendant must show that counsel’s performance did not equal that of a lawyer with ordinary training and skill in criminal law. 20 We find that the record affirmatively refutes Stelly’s allega- tion that appellate counsel was deficient for failing to raise trial counsel’s ineffectiveness in failing to discover and challenge at trial the Brady violation of concealing the extraction disc. The evidence Stelly points to as raising questions about the time of extraction, which he claims should have alerted trial counsel to the possible Brady violation and should have likewise alerted appellate counsel of trial counsel’s ineffectiveness, does not in fact indicate the State was concealing exculpatory evidence that it had extracted the data from Stelly’s cell phone before the crime. The trial record demonstrates that, on their face, exhibits 590 through 592 are photographs that show when they were 16 State v. Starks, 294 Neb. 361 , 883 N.W.2d 310 (2016). See Brady v. Maryland, supra note 1 . 17 Strickland v. Washington, 466 U.S. 668 , 104 S. Ct. 2052 , 80 L. Ed. 2d 674 (1984). 18 See State v. Assad, 304 Neb. 979 , 938 N.W.2d 297 (2020). 19 See State v. Oliveira-Coutinho, supra note 15 . 20 State v. Assad, supra note 18 .  - 653 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports STATE v. STELLY Cite as 308 Neb. 636 uploaded onto the social media website and not, as Stelly sug- gests, when they were printed out. The fact that these photo- graphs were uploaded to social media before the crime does not indicate that law enforcement had possession of Stelly’s cell phone and searched it before the crime. The trial record also affirmatively demonstrates that there is no discrepancy between Herfordt’s testimony that the extrac- tion occurred a little before 7 p.m. on January 11, 2017, and Hinsley’s testimony that the extraction occurred in the early morning hours of January 11. Hinsley testified during the motion to suppress hearing that the cell phone review began early in the morning on January 11, in order to identify the owner of the LG cell phone found at the scene of the crime. Herfordt testified during the motion to suppress hearing that the LG cell phone was booked into property at 10:21 a.m. on January 11 and that he retrieved it at 2:11 p.m. that same day, after a search warrant had been obtained. Herfordt testified that he began the process of extracting all of the raw data from the LG cell phone at 6:49 p.m. on January 11 and that the extrac- tion was completed at 6:58 p.m. The record shows that the first extraction was of a more limited nature to identify the owner of the cell phone, while the second extraction was a full search of its contents. And even if the testimonies of Herfordt and Hinsley were inconsistent, both testified that the extractions occurred after the crime. We fail to see how any inconsistency should have led either trial counsel or appellate counsel to believe that the extraction of data from the cell phone occurred before the crime. The record affirmatively refutes Stelly’s allegation that appellate counsel’s performance was deficient by failing to suspect and raise the issue of whether the data extraction of the LG cell phone occurred before the crime. The evidence Stelly points to would not give reason for a lawyer with ordinary training and skill in criminal law to believe that such precrime extraction might have occurred.  - 654 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports STATE v. STELLY Cite as 308 Neb. 636 Prosecutorial Misconduct [13] Stelly’s arguments pertaining to his first and third assignments of error are that the State committed a Brady violation by concealing the disc and committed other acts of prosecutorial misconduct by presenting false testimony that the data was extracted after the crime. Generally, prosecutorial misconduct encompasses conduct that violates legal or ethical standards for various contexts because the conduct will or may undermine a defendant’s right to a fair trial. 21 As pertains to the alleged Brady violation, as stated, the postconviction motion made no reference to a Brady violation or to a disc containing the Cellebrite extraction report. Thus, we need not address this claim that is being raised for the first time on appeal. [14] As to both the alleged Brady violation and the remain- ing allegations of prosecutorial misconduct, we agree with the district court that Stelly alleged only conclusions of fact without supporting facts. An evidentiary hearing is not required when a motion for postconviction relief alleges only conclu- sions of fact or law without supporting facts. 22 Conclusions of fact that are insufficient to warrant an eviden- tiary hearing are often broad characterizations without specific- ity, such as an allegation of “false” testimony, 23 but we have also found a more specific allegation to be a mere conclusion of fact when it appears based on speculation due to the lack of adequate supporting factual allegations. 24 Thus, for instance, in State v. Allen, 25 we concluded that the allegation that law enforcement tampered with the evidence was a mere conclu- sion of fact without supporting facts when it was based on 21 State v. Nolan, 292 Neb. 118 , 870 N.W.2d 806 (2015). 22 State v. Parnell, supra note 4 . 23 See State v. Dean, 264 Neb. 42 , 49, 645 N.W.2d 528 , 534 (2002). 24 See, e.g., State v. Johnson, 298 Neb. 491 , 904 N.W.2d 714 (2017). 25 State v. Allen, supra note 7 .  - 655 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports STATE v. STELLY Cite as 308 Neb. 636 nothing more than the allegation that a former supervisor, who was found to have tampered with evidence in other cases when he was involved in evidence collection, 26 had diagrammed the crime scene, but had not collected any evidence. There was no allegation that Stelly’s claims were based on newly discovered evidence that was not available to him during trial or his direct appeal. Stelly’s only support for his conclusory assertions that there was an undisclosed exculpa- tory disc and that the State presented false testimony is the same evidence relied upon in asserting that both trial counsel and appellate counsel were ineffective. Given that the evidence Stelly relies on does not support an inference that the extrac- tion occurred before the crime, Stelly’s allegation of false testi- mony that the data was extracted after the crime and allegation of an undisclosed disc showing extraction occurred before the crime are nothing more than conclusions of fact without sup- porting facts. Accordingly, an evidentiary hearing on the claims of prosecutorial misconduct was not required. CONCLUSION We find no merit to Stelly’s assignments of error relating to the district court’s denial of Stelly’s motion for posconvic- tion relief without an evidentiary hearing. The claims were all either procedurally barred, based upon mere conclusions of fact and law without supporting facts, or affirmatively refuted by the trial record. We therefore affirm the judgment of the district court. Affirmed. Heavican, C.J., not participating. 26 See State v. Kofoed, 283 Neb. 767 , 817 N.W.2d 225 (2012).

2021-03-19 05:08:44.528428+00

https://www.nebraska.gov/apps-courts-epub/public/viewOpinion?docId=N00007659PUB

Nebraska Supreme Court Online Library www.nebraska.gov/apps-courts-epub/ 03/19/2021 12:08 AM CDT - 623 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports JOHNSON v. JOHNSON Cite as 308 Neb. 623 Elicia Marie Johnson, appellee, v. Matthew Eugene Johnson, appellant. ___ N.W.2d ___ Filed March 12, 2021. No. S-20-428. 1. Contempt: Appeal and Error. In a civil contempt proceeding where a party seeks remedial relief for an alleged violation of a court order, an appellate court employs a three-part standard of review in which (1) the trial court’s resolution of issues of law is reviewed de novo, (2) the trial court’s factual findings are reviewed for clear error, and (3) the trial court’s determinations of whether a party is in contempt and of the sanc- tion to be imposed are reviewed for abuse of discretion. 2. Divorce: Judgments: Appeal and Error. The meaning of a divorce decree presents a question of law, in connection with which an appellate court reaches a conclusion independent of the determination reached by the court below. 3. Courts: Jurisdiction: Divorce: Property Settlement Agreements. A district court, in the exercise of its broad jurisdiction over marriage dis- solutions, retains jurisdiction to enforce all terms of approved property settlement agreements. 4. Courts: Jurisdiction. A court that has jurisdiction to make a decision also has the power to enforce it by making such orders as are necessary to carry its judgment or decree into effect. 5. Contempt. Civil contempt proceedings are instituted to preserve and enforce the rights of private parties to a suit when a party fails to com- ply with a court order made for the benefit of the opposing party. 6. Courts: Jurisdiction: Divorce: Contempt. A court’s continuing juris- diction over a dissolution decree includes the power to provide equitable relief in a contempt proceeding. 7. Contempt: Courts: Equity. Contempt proceedings may both compel obedience to orders and administer the remedies to which the court has found the parties to be entitled. Where a situation exists that is con- trary to the principles of equity and which can be redressed within the  - 624 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports JOHNSON v. JOHNSON Cite as 308 Neb. 623 scope of judicial action, a court of equity will devise a remedy to meet the situation. 8. Divorce: Property Settlement Agreements: Final Orders. A decree is a judgment, and once a decree for dissolution becomes final, its mean- ing, including the settlement agreement incorporated therein, is deter- mined as a matter of law from the four corners of the decree itself. 9. Divorce: Judgments: Intent. The meaning of a decree must be deter- mined from all parts thereof, read in its entirety, and must be construed as a whole so as to give effect to every word and part, if possible, and bring all of its parts into harmony as far as this can be done by fair and reasonable interpretation. Appeal from the District Court for Sarpy County: Stefanie A. Martinez, Judge. Affirmed. John A. Kinney and Jill M. Mason, of Kinney & Mason, P.C., L.L.O., for appellant. No appearance for appellee. Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ. Papik, J. Matthew Eugene Johnson appeals from a district court order finding that the decree that dissolved his marriage required him to pay for his daughter’s college education and auto­ mobile. He contends that the district court order was punitive and thus inappropriately entered in a civil contempt proceed- ing, and that the district court should have found that he was not obligated to pay for the expenses at issue because his daughter had repudiated her relationship with him. We find no merit to Matthew’s contentions and therefore affirm. BACKGROUND Dissolution Decree. Matthew and Elicia Marie Johnson were married in 1995. During the marriage, they had two children: Kamren Johnson, born in 1999, and Mattison Johnson, born in 2001.  - 625 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports JOHNSON v. JOHNSON Cite as 308 Neb. 623 In 2011, Elicia initiated divorce proceedings in the Sarpy County District Court. The parties negotiated a property settle- ment agreement and a parenting plan, both of which were approved by the district court and incorporated in a decree dis- solving the marriage. Under the decree, Matthew and Elicia were granted joint legal custody of both children. Physical custody of Mattison was awarded to Elicia, with parenting time for Matthew. Physical custody of Kamren was awarded to Matthew, with parenting time for Elicia. The decree contained a provision requiring Matthew to establish college savings plans for Kamren and Mattison. It provided as follows: COLLEGE FUNDS FOR MINOR CHILDREN. [Matthew] shall establish college savings plans for the minor chil- dren as follows: [Matthew] shall have discretion as to the amount of contributions he makes in each year and the manner in which he invests his contributions, provided that the college account for each child is “fully funded” by the time that the child graduates from high school. Each child’s account shall be considered “fully funded” at the point where its balance equals four (4) times the rate for undergraduate tuition, books, lab fees, and room and board at the University of Nebraska at Lincoln in the year immediately following the child’s graduation from high school. [Matthew] shall provide [Elicia] with docu- mentation confirming that each account has been “fully funded” on or before the date of each child’s graduation from high school. Another provision of the decree concerned automobiles for the children. It required Matthew to provide each child with an automobile upon turning 16 years old. The automobiles were to be of the same age and the same or equivalent model. It further provided that Matthew was to pay for the auto­mobiles’ registration, insurance, and repairs in addition to their pur- chase price.  - 626 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports JOHNSON v. JOHNSON Cite as 308 Neb. 623 In 2016, Matthew and Elicia asked the district court to approve a stipulated modification to the dissolution decree. The parties stipulated to changes in the parenting plan and Matthew’s child support obligations. The stipulated order of modification also contained a provision addressing Matthew’s obligation to pay for the children’s automobile expenses. It provided that Matthew “shall be financially responsible for providing both Kamren and Mattison suitable, safe, working cars for the children and the auto insurance and maintenance for said cars.” Contempt Proceedings. In December 2019, Matthew filed a verified application for an order to show cause in which he asked the district court to find Elicia in contempt. He alleged that Elicia had consistently denied Matthew the parenting time with Mattison allotted to him by the decree. In January 2020, Elicia filed a verified application for an order to show cause in which she asked the district court to find Matthew in contempt. In the application, Elicia alleged that Matthew had refused to pay for an automobile and auto- mobile insurance for Mattison, refused to pay for Mattison’s tuition and related expenses at the University of Nebraska- Lincoln, and refused to provide to Elicia documentation prov- ing the college savings plan required by the decree was fully funded. Elicia contended that the decree required Matthew to take such actions, that his failure to do so was willful and mali- cious, and that he should be held in contempt. In March 2020, the district court held a hearing on the par- ties’ contempt applications. At the hearing, Matthew testified that he had not had parenting time with Mattison since the summer of 2018, that Mattison did not respond to his attempts to communicate with her, and that he had no relationship with her. He testified that he believed Mattison had repudiated her relationship with him and that, as a result, he was no longer willing to pay for Mattison’s college education or automobile expenses. Matthew testified that he had funds available to  - 627 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports JOHNSON v. JOHNSON Cite as 308 Neb. 623 pay for Mattison’s college tuition and related expenses, but admitted that he had not provided Elicia with documentation of such funds. He also testified that he had not received infor- mation regarding the specific expenses Elicia requested he pay until a few weeks before the hearing. Mattison also testified at the hearing. She testified she was 18 years old and a student at the University of Nebraska- Lincoln. She testified that when she went to Matthew’s home for his scheduled parenting time, Matthew was often work- ing or sleeping, and that she was not comfortable there. She admitted that at some point in 2018, she stopped going to Matthew’s home during his scheduled parenting time. She also acknowledged that she had not communicated with Matthew and had not had a meaningful relationship with him for the last 11⁄2 years. She testified that she did not trust him and that while she would be willing to go to counseling with him if he would agree, she did not otherwise want him to be a part of her life. Elicia was the final witness at the hearing. During her tes- timony, the district court received into evidence spreadsheets itemizing the out-of-pocket expenses Elicia had incurred for Mattison’s college education and automobile. The spreadsheets listed $12,715.43 in college expenses and $10,882.02 in auto- mobile expenses. Elicia testified that she had notified Matthew of these expenses, but that he refused to pay them. District Court Order. After the hearing, the district court entered an order. It rejected Matthew’s argument that he should not be obligated to pay the expenses at issue because Mattison had repudiated him as her father. The district court explained that it found no authority under Nebraska law supporting the argument and that it contradicted longstanding Nebraska law requiring parents to provide support for their children until they reach the age of majority. The district court went on to address the various rea- sons why Elicia contended that Matthew should be held in  - 628 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports JOHNSON v. JOHNSON Cite as 308 Neb. 623 contempt. The district court found that the decree clearly required Matthew to pay the automobile expenses, but that because Matthew was only recently presented with the specific expenses Elicia requested, and because Matthew had no part in choosing the automobile in violation of the “intent and spirit” of the relevant decree provision, he was not in contempt. The district court clarified that while Matthew was not in con- tempt, he was still obligated to pay the automobile expenses under the decree. The district court found the decree less clear regarding col- lege expenses, pointing out that it lacked language specifying how or when the funds were to be disseminated. It observed that the evidence showed that Matthew had complied with the college savings plan provision to the extent that he had established a college savings account that was fully funded as defined by the decree. The district court found that Matthew had not, however, complied with the provision of the decree requiring that he provide Elicia with documentation of the account. It concluded that Matthew was in contempt for not providing this documentation, but not in contempt for failing to pay the expenses. The district court ordered Matthew to pay $10,882.02 for the automobile expenses and $12,715.43 for the college expenses. It ordered him to provide Elicia with documentation of the college savings account within 5 business days of its order. The district court found that Elicia was in contempt for denying Matthew his parenting time. Matthew appealed from the district court’s order. Elicia did not appeal. ASSIGNMENTS OF ERROR Matthew assigns three errors on appeal. He contends, reor- dered and restated, that the district court erred (1) by entering a damages award against him; (2) by ordering that he pay an unconditional fine; and (3) by failing to find that under the doctrine of repudiation, he owed no duty to pay the college or automobile expenses.  - 629 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports JOHNSON v. JOHNSON Cite as 308 Neb. 623 STANDARD OF REVIEW [1] In a civil contempt proceeding where a party seeks reme- dial relief for an alleged violation of a court order, an appellate court employs a three-part standard of review in which (1) the trial court’s resolution of issues of law is reviewed de novo, (2) the trial court’s factual findings are reviewed for clear error, and (3) the trial court’s determinations of whether a party is in contempt and of the sanction to be imposed are reviewed for abuse of discretion. Yori v. Helms, 307 Neb. 375 , 949 N.W.2d 325 (2020). [2] The meaning of a divorce decree presents a question of law, in connection with which an appellate court reaches a conclusion independent of the determination reached by the court below. Bayne v. Bayne, 302 Neb. 858 , 925 N.W.2d 687 (2019). ANALYSIS District Court’s Remedy. Matthew’s first two assignments of error are based on an incorrect understanding of the district court’s order. Matthew asserts that the district court’s order that he pay Mattison’s col- lege and automobile expenses was either a “type of damages award” or an unconditional fine, and he contends that neither are a permitted remedy for contempt. See brief for appellant at 7. The district court’s order that Matthew pay Mattison’s college and automobile expenses was not, however, a remedy for contempt. The district court found that Matthew was in contempt for failing to provide Elicia with documentation regarding the funding of the college savings account for Mattison and ordered him to provide that documentation within 5 days. Because Matthew was presented with Mattison’s automobile expenses shortly before the hearing, the district court found that he was not in contempt for failing to pay them. But while the district court found Matthew was not in contempt for failing to pay expenses about which he was only recently  - 630 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports JOHNSON v. JOHNSON Cite as 308 Neb. 623 notified, it found that the decree required that he pay those expenses. Similarly, the district court found that Matthew was not in contempt for not paying Mattison’s college expenses because the decree was not clear about how or when he was to pay them, but the district court still interpreted the decree to require that he pay such expenses. [3,4] By ordering Matthew to pay Mattison’s automobile and college expenses, the district court was not entering a damages award or fining Matthew for contempt; it was exercis- ing its authority to interpret and enforce the decree. A district court, in the exercise of its broad discretion over marriage dis- solutions, retains jurisdiction to enforce all terms of approved property settlement agreements. Whitesides v. Whitesides, 290 Neb. 116 , 858 N.W.2d 858 (2015). A court that has jurisdiction to make a decision also has the power to enforce it by making such orders as are necessary to carry its judgment or decree into effect. Id. [5-7] The district court’s authority to enforce the decree was not limited by the fact that Elicia initiated contempt proceed- ings. Civil contempt proceedings are instituted to preserve and enforce the rights of private parties to a suit when a party fails to comply with a court order made for the benefit of the opposing party. McCullough v. McCullough, 299 Neb. 719 , 910 N.W.2d 515 (2018). A court’s continuing jurisdiction over a dissolution decree includes the power to provide equitable relief in a contempt proceeding. Id. Contempt proceedings may both compel obedience to orders and administer the remedies to which the court has found the parties to be entitled. Where a situation exists that is contrary to the principles of equity and which can be redressed within the scope of judicial action, a court of equity will devise a remedy to meet the situation. Id. Although the district court apparently concluded that Matthew did not willfully violate the decree by not paying Mattison’s automobile and college expenses, and therefore did not hold him in contempt for failing to do so, it still had authority to enforce the decree by compelling him to follow it.  - 631 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports JOHNSON v. JOHNSON Cite as 308 Neb. 623 Repudiation. Matthew also argues that because Mattison refuses to have any meaningful relationship with him, he should not have to pay her automobile or college expenses, and the district court erred by ordering him to do so. Matthew claims his argument is supported by a doctrine of repudiation or estrangement recognized in decisions from other states. He relies on cases from Indiana and Pennsylvania in which courts held that a parent was not required to contribute to his or her child’s col- lege education because the child repudiated the relationship with the parent. See, e.g., McKay v. McKay, 644 N.E.2d 164 (Ind. App. 1994); Milne v. Milne, 383 Pa. Super. 177 , 556 A.2d 854 (1989). As we will explain, however, those deci- sions do not neatly map on to either the facts of this case or Nebraska law. At the time of the Indiana and Pennsylvania decisions relied upon by Matthew, the law of those states permitted courts to order divorced parents to contribute to their child’s college education after the child reached the age of majority. See, McKay, supra; Milne, supra. In determining whether to order such a support obligation, courts in those states consider whether and to what extent the parents, if still married, would have contributed to the child’s college education. See, McKay, supra; Milne, supra. In the decisions relied upon by Matthew, the courts reasoned that because a parent would not ordinar- ily be inclined to contribute to the college education of a child who had rejected a relationship with the parent, a parent should not be obligated by a court to do so. See, McKay, supra; Milne, supra. Even if we were to adopt the repudiation doctrine articu- lated by these Indiana and Pennsylvania decisions as Matthew urges, it does not appear that would be of any assistance to Matthew in this appeal. Both courts emphasized that a parent could be spared from a college support obligation only if an adult child rejected a relationship with his or her parent. See, McKay, supra; Milne, supra. Mattison, however, was 18 years old and thus still a minor when the expenses at issue were  - 632 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports JOHNSON v. JOHNSON Cite as 308 Neb. 623 incurred. See Neb. Rev. Stat. § 43-2101 (1) (Cum. Supp. 2020) (unless married, persons under 19 years of age are declared to be minors). But even setting Mattison’s age to the side, there is a more fundamental difference between this case and those Matthew relies upon—Matthew’s college support obligation arose because of an agreement with Elicia, not as a result of unilat- eral judicial imposition. In fact, in Nebraska, an obligation to pay for a child’s college expenses after the child has reached the age of majority could only come about through the parties’ agreement. Unlike their Indiana and Pennsylvania counterparts, courts in Nebraska are not authorized to order a parent, over his or her objection, to contribute to the support of children beyond their majority as part of a marriage dissolution decree. Compare Foster v. Foster, 266 Neb. 32 , 662 N.W.2d 191 (2003), with McKay, supra, and Milne, supra. Nebraska courts will, however, enforce an approved property settlement agree- ment voluntarily entered into by the parties which provides for postmajority child support. See Carlson v. Carlson, 299 Neb. 526 , 909 N.W.2d 351 (2018). Because any obligation Matthew has to fund Mattison’s college education came about as a result of his agreement with Elicia, we view the repudiation or estrangement doctrine recognized in the Indiana and Pennsylvania cases Matthew relies upon as inapplicable. On this point, we are in agree- ment with other courts, including one from Pennsylvania. In Cook v. Covey, 415 Pa. Super. 353 , 609 A.2d 560 (1992), a Pennsylvania court held that the fact that a daughter was estranged from her father had no bearing on the father’s col- lege support obligation because the obligation resulted not from judicial fiat, but from the father’s agreement with the mother. That court explained: The cases in which estrangement is relevant, how- ever, have been those cases in which a child has asked the court to judicially impose on a parent an obliga- tion to provide post-minority educational support in the  - 633 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports JOHNSON v. JOHNSON Cite as 308 Neb. 623 absence of a specific agreement by the parent to do so. . . . Since Father agreed, in writing, to pay [the daugh- ter’s] college expenses, the trial court did not judicially impose an obligation on Father. Rather, the court merely enforced an obligation that Father has already assumed. The agreement specifically imposes Father’s obligation and is enforceable as written. The agreement is between Mother and Father. [The daughter] is a third-party benefi- ciary. As we cannot presume to know what concessions were made in the formation of the separation agreement, or what rights Mother may have relinquished in return for Father’s promise to pay college expenses, we will not look beyond the written agreement. If the parties had intended Father’s obligation to provide college sup- port to be contingent on a continuing relationship with [the daughter], the qualifier presumably would have been included in the agreement. Accordingly, whether Father and [the daughter] were estranged does not affect Father’s duty under the agreement with Mother. Cook, 415 Pa. Super. at 358-59 , 609 A.2d at 563 . See, also, Miller v. Miller, No. M2017-01867-COA-R3-CV, 2018 WL 2411591 (Tenn. App. May 29, 2018) (unpublished opinion) (holding that mother was not relieved of contractual agree- ment to pay college expenses based on son’s repudiation of relationship). We find the reasoning of the court in Cook cogent and, for the same reasons, find that Matthew’s obligations to pay for Mattison’s expenses are controlled by the terms of the parties’ property settlement agreement incorporated in the dissolu- tion decree. Like the agreement in Cook, the property settlement agree- ment reached by Matthew and Elicia does not make Matthew’s obligations contingent on a continuing parent-child relation- ship. Matthew admitted this at oral argument, but advanced a different argument regarding the terms of the college sav- ings plan provision. He contended that the provision required  - 634 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports JOHNSON v. JOHNSON Cite as 308 Neb. 623 that he establish an account, but did not specify that the money in the account must actually be used to pay for the children’s college education. Matthew claimed that he could therefore refuse to pay Mattison’s college expenses in response to her refusal to have a relationship with him. [8,9] A decree is a judgment, and once a decree for dis- solution becomes final, its meaning, including the settlement agreement incorporated therein, is determined as a matter of law from the four corners of the decree itself. Bayne v. Bayne, 302 Neb. 858 , 925 N.W.2d 687 (2019). Unlike disputes over the meaning of an ambiguous contract, the parties’ subjective interpretations and intentions are wholly irrelevant to a court’s declaration, as a matter of law, as to the meaning of an ambig­ uous decree. Id. The meaning of a decree must be determined from all parts thereof, read in its entirety, and must be con- strued as a whole so as to give effect to every word and part, if possible, and bring all of its parts into harmony as far as this can be done by fair and reasonable interpretation. Id. We find that Matthew has not offered a reasonable interpre- tation of the decree’s college savings plan provision. Matthew is correct there is no express language in the decree stating he must direct that money in the college savings plan be used to pay for his children’s college education. Neither, however, is there language giving him discretion to withhold funds from one of his children pursuing a college education or language setting forth what is to happen to those funds if not used to fund the children’s college educations. In addition, we believe the requirement that Matthew establish college savings plans “for the minor children” suggests that the money in the account was to be directed toward the children’s college education should they pursue one. (Emphasis supplied.) In addition, Matthew’s argument that the decree does not require that the funds be used for the children’s college educa- tion sweeps beyond any alleged rejection of him by Mattison. If, as he asserts, the decree requires only that he contribute money to a college savings account, he could refuse to pay  - 635 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports JOHNSON v. JOHNSON Cite as 308 Neb. 623 for his children’s college education for any reason or no reason at all. A parent would presumably have discretion to financially contribute to his or her child’s college education in the absence of a provision in a dissolution decree providing as much. It is thus difficult to discern what purpose would be served by requiring one party to a divorce to establish a college savings account for the parties’ children, but also allowing that party sole discretion as to whether those funds will actually be used to pay for a child’s college attendance. We find that the only reasonable interpretation of the college savings plan provision is that it requires Matthew to use the funds in the account to pay for Mattison’s college education. We do not believe the district court erred by rejecting Matthew’s repudiation argument and requiring that he pay Mattison’s college and automobile expenses. CONCLUSION Because we find no merit to Matthew’s arguments on appeal, we affirm the order of the district court. Affirmed.

2020-12-03 20:08:43.244191+00

http://www.courts.state.ny.us/reporter/3dseries/2020/2020_07292.htm

People v Arman (2020 NY Slip Op 07292) People v Arman 2020 NY Slip Op 07292 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. FalseAppeal No. 12539 Case No. 2018-734 [*1]The People of the State of New York, Respondent, v Alex Arman, Defendant-Appellant. Janet E. Sabel, The Legal Aid Society, New York (Harold V. Ferguson, Jr. of counsel), for appellant. Darcel D. Clark, District Attorney, Bronx (John T. Komondorea of counsel), for respondent. An appeal having been taken to this Court by the above-named appellant from a judgment of the Supreme Court, Bronx County (Raymond L. Bruce, J.), rendered October 05, 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 [*2]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.

2021-03-19 05:08:45.841698+00

https://www.nebraska.gov/apps-courts-epub/public/viewOpinion?docId=N00007657PUB

Nebraska Supreme Court Online Library www.nebraska.gov/apps-courts-epub/ 03/19/2021 12:08 AM CDT - 597 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports COLWELL v. MANAGED CARE OF NORTH AMERICA Cite as 308 Neb. 597 Robert F. Colwell, Jr., D.D.S., and Robert F. Colwell Jr., DDS, P.C., appellants, v. Managed Care of North America, Inc., et al., appellees. ___ N.W.2d ___ Filed March 12, 2021. Nos. S-20-336, S-20-338. 1. Jurisdiction: Appeal and Error. A jurisdictional question which does not involve a factual dispute is determined by an appellate court as a matter of law. 2. Administrative Law: Judgments: Statutes: Appeal and Error. The meaning and interpretation of statutes and regulations present questions of law which an appellate court decides independently of the decision made by the court below. 3. Administrative Law: Judgments: Time: Appeal and Error. Generally, when a request for an appeal before an administrative agency is not timely pursuant to rules and regulations properly adopted by that agency, the agency does not have subject matter jurisdiction to hear the appeal. 4. Administrative Law: Judgments: Appeal and Error. When an admin- istrative agency lacks subject matter jurisdiction over a claim, courts also lack subject matter jurisdiction on appeal. 5. Administrative Law: Statutes. For purposes of construction, a rule or regulation of an administrative agency is generally treated like a statute, because properly adopted and filed regulations have the effect of statu- tory law. 6. Administrative Law. Absent a statutory or regulatory indication to the contrary, language contained in a rule or regulation is to be given its plain and ordinary meaning. 7. ____. A rule or regulation is open for construction only when the lan- guage used requires interpretation or may reasonably be considered ambiguous.  - 598 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports COLWELL v. MANAGED CARE OF NORTH AMERICA Cite as 308 Neb. 597 8. ____. A court will construe regulations relating to the same subject mat- ter together to maintain a consistent and sensible scheme. 9. Administrative Law: Notice: Time: Appeal and Error. When the adverse action is termination, “the date of the action” for purposes of appeal under 471 Neb. Admin. Code, ch. 2, § 003.01A(3) (2015), is the date notice of the termination is issued, regardless of the termination’s effective date. Appeals from the District Court for Lancaster County: Jodi L. Nelson, Judge. Affirmed. John A. Svoboda and Eric J. Sutton, of Gross & Welch, P.C., L.L.O., for appellants. Rodney C. Dahlquist, Jr., of Dornan, Troia, Howard, Breitkreutz & Conway, P.C., L.L.O., for appellee Managed Care of North America, Inc. Douglas J. Peterson, Attorney General, and James A. Campbell, Solicitor General, for appellees Nebraska Department of Health and Human Services et al. Heavican, C.J., Cassel, Stacy, Funke, Papik, and Freudenberg, JJ. Stacy, J. In these consolidated appeals, a Medicaid dental provider assigns error to the district court’s dismissal of separate actions challenging the denial of an administrative appeal hearing before the Nebraska Department of Health and Human Services (DHHS). Because we agree with the district court that the hear- ing request was not timely submitted to DHHS under the gov- erning regulation, we affirm the dismissals. BACKGROUND Robert F. Colwell Jr., DDS, P.C., is a Nebraska corpora- tion through which Robert F. Colwell, Jr., D.D.S. (collec- tively Colwell), provides dental services. Managed Care of North America (MCNA) is a Florida company that provides managed care services to the State of Nebraska’s Medicaid  - 599 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports COLWELL v. MANAGED CARE OF NORTH AMERICA Cite as 308 Neb. 597 program. 1 In 2016, Colwell entered into a “Master Dental Provider Agreement” with MCNA, whereby Colwell agreed to provide dental services to children and adults enrolled in Nebraska Medicaid, and MCNA agreed to compensate Colwell for providing the services. The agreement was for an initial term of 1 year and had an automatic renewal provision for additional 1-year terms. Article X of the agreement stated that either party could terminate the agreement on 90 days’ writ- ten notice. On April 5, 2019, Colwell filed a lawsuit against MCNA in the district court for Douglas County. That action alleged, among other things, that MCNA had failed to pay Colwell for covered services provided to Nebraska Medicaid patients. Colwell’s Douglas County suit is not part of the instant appeal, but we reference it because it forms the basis for one of the assignments of error. On April 24, 2019, MCNA sent a certified letter to Colwell stating that, pursuant to article X of the provider agreement, MCNA was “providing notice of non-renewal” and terminat- ing the Medicaid provider agreement with Colwell. The letter advised Colwell, “Your participation with MCNA will end at midnight on August 22, 2019, as a participating provider for MCNA’s Nebraska plan.” The letter also advised that until the “Termination Effective Date,” which the letter described as August 23, Colwell was to continue providing dental services to Medicaid enrollees under the terms of the agreement. After receiving the termination letter, Colwell filed a motion for preliminary injunction in the Douglas County action, seek- ing to enjoin MCNA from terminating the provider agreement, and also amended the complaint to challenge MCNA’s termina- tion decision. Our record indicates the preliminary injunction was denied in an order entered August 19. On August 21, 2019, Colwell filed a “Request for Fair Hearing” with DHHS, seeking to appeal “MCNA’s letter of 1 See 482 Neb. Admin. Code, ch. 1, § 001.01 (2013).  - 600 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports COLWELL v. MANAGED CARE OF NORTH AMERICA Cite as 308 Neb. 597 4/24/19 terminating [the] Master Dental Provider Agreement.” On September 6, DHHS acknowledged the hearing request but informed Colwell via letter that the “appeal involve[d] an action by MCNA that [was] not appealable” to DHHS. Then, on September 17, DHHS issued an order formally dismissing Colwell’s hearing request. On September 20, 2019, Colwell filed an action under the Administrative Procedure Act 2 (APA appeal) in the district court for Lancaster County, challenging the September 17 DHHS order of dismissal. Then, on October 7, Colwell filed a petition in error 3 in the district court for Lancaster County, challenging the same DHHS dismissal order. Both the APA appeal and the petition in error named as defendants MCNA, DHHS, and various State officials, and both alleged that DHHS had erroneously dismissed Colwell’s request for a hearing on MCNA’s decision to terminate the provider agreement. The district court for Lancaster County consolidated the two matters, after which MCNA moved to dismiss both, asserting that Colwell’s request for a hearing before DHHS had not been timely filed. Alternatively, MCNA argued that dismissal was appropriate under the doctrine of jurisdictional priority because Colwell’s previously filed lawsuit against MCNA was still pending in Douglas County and that lawsuit also challenged the termination. At the hearing on MCNA’s motions to dismiss, counsel for all parties appeared, and the court received a certified copy of the official record and proceedings before DHHS. Additionally, MCNA offered certified copies of filings in Colwell’s Douglas County action against MCNA, which the court received over Colwell’s objection. On the record, counsel for DHHS and the other State appellees informed the court that they agreed with the arguments raised in MCNA’s motions to dismiss and that they stood by their position that Colwell had no right to 2 Neb. Rev. Stat. §§ 84-901 to 84-920 and 84-933 to 84-948 (Reissue 2014 & Cum. Supp. 2018). 3 Neb. Rev. Stat. § 25-1901 (Reissue 2016).  - 601 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports COLWELL v. MANAGED CARE OF NORTH AMERICA Cite as 308 Neb. 597 a DHHS hearing on MCNA’s decision to terminate the pro- vider agreement. In an order entered April 20, 2020, the district court dis- missed both the APA appeal and the error proceeding for lack of subject matter jurisdiction. The court found that DHHS had no authority to hold a hearing because Colwell’s request was untimely under 471 Neb. Admin. Code, ch. 2, § 003.01A (2015), which allows Medicaid providers to appeal adverse actions, but requires the written hearing request to be filed within 90 days of “the date of the action.” The district court found that the 90-day appeal period began running on April 24, 2019 (the date of MCNA’s letter notifying Colwell of the ter- mination decision), and that Colwell’s written hearing request was submitted on August 21, well outside the appeal period. The district court rejected Colwell’s contention that the “‘date of the action’” was August 23 (the termination effective date), reasoning that such a construction was contrary to the plain language of the regulation. The district court did not address MCNA’s jurisdictional priority argument, or any of the other arguments presented, generally reasoning that its resolution of the timeliness issue was both jurisdictional and dispositive. A few days after the orders of dismissal were entered, Colwell filed a notice of appeal in both cases. Colwell also filed, and the district court overruled, motions to set super­ sedeas bonds in both cases. The appeals were consolidated, and we granted the appellees’ petition to bypass. ASSIGNMENTS OF ERROR Colwell assigns, restated, that the district court erred by (1) receiving new evidence outside the administrative record; (2) dismissing the APA appeal and the error proceeding for lack of jurisdiction; (3) finding Colwell failed to timely file the request for an administrative hearing; (4) failing to find that Colwell’s hearing request to DHHS presented an appealable issue; (5) dismissing the APA appeal and the error proceed- ing without considering the merits of either, thus violating  - 602 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports COLWELL v. MANAGED CARE OF NORTH AMERICA Cite as 308 Neb. 597 Colwell’s due process rights; and (6) overruling Colwell’s motion to set a supersedeas bond. STANDARD OF REVIEW [1] A jurisdictional question which does not involve a fac- tual dispute is determined by an appellate court as a matter of law. 4 [2] The meaning and interpretation of statutes and regula- tions present questions of law which an appellate court decides independently of the decision made by the court below. 5 ANALYSIS [3,4] Generally, when a request for an appeal before an administrative agency is not timely pursuant to rules and regu- lations properly adopted by that agency, the agency does not have subject matter jurisdiction to hear the appeal. 6 And when an administrative agency lacks subject matter jurisdiction over a claim, courts also lack subject matter jurisdiction on appeal. 7 Because the threshold jurisdictional issue in these consolidated appeals turns on whether Colwell’s written request for a hear- ing before DHHS was timely, we begin our analysis with the governing administrative regulations. All parties agree that if Colwell had a right to an admin- istrative appeal hearing before DHHS on these facts, it was governed by 471 Neb. Admin. Code, ch. 2, § 003 (2015). That regulation applies to Medicaid providers 8 and states in rel- evant part: 4 Omaha Expo. & Racing v. Nebraska State Racing Comm., 307 Neb. 172 , 949 N.W.2d 183 (2020). 5 See McManus Enters. v. Nebraska Liquor Control Comm., 303 Neb. 56 , 926 N.W.2d 660 (2019). 6 See Creighton St. Joseph Hosp. v. Tax Eq. & Rev. Comm., 260 Neb. 905 , 620 N.W.2d 90 (2000) (superseded by statute as stated in In re App. No. C-4973 of Skrdlant, 305 Neb. 635 , 942 N.W.2d 196 (2020)). 7 Id. 8 See 471 Neb. Admin. Code, ch. 2, § 001.01 (2015).  - 603 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports COLWELL v. MANAGED CARE OF NORTH AMERICA Cite as 308 Neb. 597 2-003 Appeal Rights: Any adverse action under this Title may be appealed to the Medicaid Director by the person or entity against whom the action was taken. 2-003.01 Hearing Request Procedure: The person or entity appealing an adverse action must submit a written hearing request to the Department. 2-003.01A Deadlines: 1. Administrative sanctions must be appealed within 30 days of the date of the action. 2. Refund requests must be appealed within 30 days of the date of the action indicated either on the Refund Report or the notice of action letter. 3. All other actions must be appealed within 90 days of the date of the action. 2-003.01B Appealing before effective date: A per- son or entity may appeal a termination or exclusion before the effective date of the proposed termination or exclusion. A termination or exclusion appealed before its effective date will not take effect until the appeal has been decided, unless the termination or exclusion is being imposed pursuant to 42 C.F.R. 455.416(c) or has an immediate effective date because of a threat to client health and safety. 2-003.02 Hearings: Appeal and hearing procedures are governed by Title 465, Chapter 6. 9 We pause to note that title 471 was amended in 2020, after the relevant events in these appeals. As a result of those amend- ments, the provisions previously found in § 003 are now in 471 Neb. Admin. Code, ch. 2, § 007 (2020). This opinion refers to the regulations in effect at the time Colwell filed the hear- ing request. Section 003.01A contains different appeal deadlines depend- ing on the nature of the adverse action being appealed to DHHS. Colwell’s written hearing request sought to appeal 9 Id., § 003.  - 604 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports COLWELL v. MANAGED CARE OF NORTH AMERICA Cite as 308 Neb. 597 “MCNA’s letter of 4/24/19,” which notified Colwell of MCNA’s decision not to renew the provider agreement. For purposes of determining the timeliness of Colwell’s hearing request to DHHS, the parties generally equate MCNA’s non­ renewal decision with a termination, and we accept that char- acterization. In fact, Colwell’s briefing plainly states that “[t]he adverse action being challenged is MCNA’s termination (with- out cause) of the [provider agreement].” 10 No party suggests the termination involved either a sanction or a refund request; 11 consequently, the deadline for Colwell to appeal MCNA’s ter- mination, assuming without deciding that such a right existed, was governed by § 003.01A(3), which applies to “[a]ll other” adverse actions. Under § 003-01A(3), Colwell was required to submit the written hearing request to DHHS “within 90 days of the date of the action.” The phrase “date of the action” is not defined in the subject regulation, and the parties urge different interpretations. For purposes of calculating the 90-day appeal period, the appel- lees contend the “date of the action” was April 24, 2019—the date on which MCNA issued notice of the termination deci- sion. Colwell, on the other hand, contends the “date of the action” was August 23—the effective date of the termination. Under the appellees’ construction, Colwell’s August 21 hearing request was submitted well after the 90-day appeal period and was untimely. But under Colwell’s construction, the hearing request was submitted 2 days before the 90-day appeal period started, which Colwell argues is permissible under the regula- tory scheme. Given the parties’ contentions, the specific question to be resolved is this: When the adverse action is a termination noti- fication with a future effective date, is the “date of the action” under § 003.01A(3) the date the termination notice is issued or the date the termination becomes effective? To answer this question, we apply settled rules of construction. 10 Brief for appellants at 15. 11 § 003.01A(1) and (2).  - 605 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports COLWELL v. MANAGED CARE OF NORTH AMERICA Cite as 308 Neb. 597 [5-8] For purposes of construction, a rule or regulation of an administrative agency is generally treated like a statute, 12 because properly adopted and filed regulations have the effect of statutory law. 13 Absent a statutory or regulatory indication to the contrary, language contained in a rule or regulation is to be given its plain and ordinary meaning. 14 A rule or regulation is open for construction only when the language used requires interpretation or may reasonably be considered ambiguous. 15 A court will construe regulations relating to the same subject matter together to maintain a consistent and sen- sible scheme. 16 Colwell generally argues the phrase “date of the action” is not ambiguous, and we agree. Our construction is therefore controlled by the plain and ordinary meaning of the phrase. We focus first on the key word in this regulatory phrase—“action.” Under the Nebraska Administrative Code, § 003 affords Medicaid providers the right to appeal “[a]ny adverse action” and § 003.01A(3) states that “actions must be appealed within 90 days of the date of the action.” Given this regulatory frame- work, the “action” to which § 003.01A(3) refers is plainly the “adverse action” the provider intends to appeal. Colwell admits “[t]he adverse action being challenged is MCNA’s termination,” 17 and it is undisputed that MCNA noti- fied Colwell of that adverse action in the April 24, 2019, let- ter. Affording the regulatory language its plain meaning, we conclude “the date of the action” for purposes of § 003.01A(3) was April 24. 12 J.S. v. Nebraska Dept. of Health & Human Servs., 306 Neb. 20 , 944 N.W.2d 266 (2020). 13 Id. 14 Id. 15 See McManus Enters., supra note 5. 16 Id. 17 Brief for appellants at 15.  - 606 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports COLWELL v. MANAGED CARE OF NORTH AMERICA Cite as 308 Neb. 597 In resisting this construction, Colwell argues instead that August 23, 2019 (the effective date of the termination), should be considered the “date of the action” for purposes of § 003.01A(3). We reject this construction as unsound, for sev- eral reasons. First, Colwell’s construction is imprecise; it conflates a detail of the adverse action with the action itself. When Colwell sub- mitted the hearing request on August 21, 2019, Colwell chal- lenged the April 24 termination notification, not the termina- tion’s effective date. For Colwell’s proposed interpretation to make sense, the regulatory phrase “the date of the action” must be read to mean “the effective date of the action.” But that was not the language used by the drafters, and it is not within the province of the courts to read a meaning into a regulation that is not there. 18 Moreover, we cannot reconcile Colwell’s proposed con- struction with the plain text of the related tolling provisions in § 003.01B. Section 003.01B expressly provides that when the adverse action is “termination,” the action may be appealed “before the effective date of the proposed termination,” and in that event, the termination “will not take effect until the appeal has been decided.” Expressly excluded from the toll- ing provision are terminations with “an immediate effective date.” 19 Because §§ 003.01A(3) and 003.01B relate to the same subject matter, we must construe them in a way that maintains a consistent and sensible scheme. 20 Reading these sections together, it is apparent that when the adverse action is termination, “the date of the action” and “the effective date of the proposed termination” have different meanings under the regulatory scheme and are not, as Colwell suggests, synonymous concepts. Instead, the provisions of § 003.01B address the reality that, to comply with the 90-day appeal 18 Utelcom, Inc. v. Egr, 264 Neb. 1004 , 653 N.W.2d 846 (2002). Accord Houser v. American Paving Asphalt, 299 Neb. 1 , 907 N.W.2d 16 (2018). 19 § 003.01B. 20 See McManus, supra note 5.  - 607 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports COLWELL v. MANAGED CARE OF NORTH AMERICA Cite as 308 Neb. 597 deadline in § 003.01A(3), it may be necessary to appeal a termination before it becomes effective. And the provisions incentivize prompt appeal requests and maintain the status quo by tolling the effective date of the termination until the appeal has been decided. But Colwell argues that § 003.01B should instead be con- strued to provide a more “comprehensive scheme” 21 that gives Medicaid providers the right to appeal terminations “at any time prior to the effective date of the termination” 22 and also gives them the right to appeal the termination for “90 days after” 23 the termination’s effective date. Colwell’s proposed construction, in addition to being contrary to the plain text of the regulation, also results in a regulatory scheme which is nei- ther sensible nor consistent. 24 Allowing terminations to be appealed at any point before the effective date and for 90 days after the effective date would result in widely varying appeal windows. Under Colwell’s construction, a Medicaid provider who is notified of an imme- diate termination would have a 90-day appeal window and a Medicaid provider who is notified of a termination that takes effect in 6 months would have a 270-day appeal window. In contrast, the construction applied by the district court and advocated by the appellees would require all Medicaid provid- ers to appeal within 90 days of the termination notice, regard- less of whether the termination becomes effective immediately or sometime in the future. This gives the regulatory scheme a consistent and sensible meaning that encourages prompt appeals from adverse actions and applies the same 90-day appeal window to every Medicaid provider. 21 Brief for appellants at 20. 22 Id. at 19 (emphasis omitted). 23 Id. (emphasis in original). 24 See McManus, supra note 5 (holding court will construe regulations relating to same subject matter together to maintain consistent and sen­ sible scheme).  - 608 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports COLWELL v. MANAGED CARE OF NORTH AMERICA Cite as 308 Neb. 597 For the sake of completeness, we note that Colwell’s brief- ing also attempts to support the alternative construction by citing to other regulatory provisions and definitions within the Code of Federal Regulations and elsewhere in the Nebraska Administrative Code. We have carefully reviewed and consid- ered each of the state and federal regulatory provisions cited by Colwell, and find all are inapposite. Little would be gained by an exhaustive comparison of the unrelated regulatory lan- guage, because none of the cited federal or state regulatory schemes address the same subject matter before us in these consolidated appeals. Our task is to determine the meaning of the phrase “date of the action” as used in the regulatory scheme governing a Medicaid provider’s right to appeal from an adverse action. Colwell’s reference to definitions in unre- lated federal and state regulations does not inform our work or change the plain meaning of the phrase “the date of the action” in § 003.01A(3). [9] In summary, we reject Colwell’s proposed construc- tion because it would require that we read language into the plain text of the regulation, it cannot be reconciled with other provisions in the same regulation, and it would result in a regulatory scheme which is neither sensible nor consistent. We instead hold that when the adverse action is termination, “the date of the action” for purposes of appeal under § 003.01A(3) is the date notice of the termination is issued, regardless of the termination’s effective date. And to be timely, a writ- ten hearing request must be submitted to DHHS within 90 days thereafter. MCNA notified Colwell of the termination decision in the certified letter of April 24, 2019, and Colwell had 90 days thereafter, or until July 23, to submit the written hear- ing request under § 003.01A(3). Because Colwell’s hearing request was not submitted until August 21, it was untimely, and DHHS therefore lacked subject matter jurisdiction over the appeal. 25 When an administrative agency lacks subject 25 See Creighton St. Joseph Hosp., supra note 6 .  - 609 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports COLWELL v. MANAGED CARE OF NORTH AMERICA Cite as 308 Neb. 597 ­ atter jurisdiction, the courts also lack subject matter jurisdic- m tion on appeal, 26 and the district court correctly dismissed both the APA appeal and the error proceeding for lack of subject matter jurisdiction. Because we affirm the district court’s dismissal for lack of subject matter jurisdiction, we do not address Colwell’s remaining assignments of error, and we express no opinion on Colwell’s use of both an APA appeal and a petition in error to challenge DHHS’ order of dismissal. CONCLUSION Because Colwell’s request for a hearing before DHHS was not timely filed within 90 days of “the date of the action” under § 003.01A(3), we affirm the district court’s dismissal for lack of subject matter jurisdiction. Affirmed. Miller-Lerman, J., not participating. 26 Id.

2021-03-19 05:08:48.37569+00

https://www.nebraska.gov/apps-courts-epub/public/viewOpinion?docId=N00007647PUB

Nebraska Supreme Court Online Library www.nebraska.gov/apps-courts-epub/ 03/19/2021 12:08 AM CDT - 587 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports STATE v. COMBS Cite as 308 Neb. 587 State of Nebraska, appellee, v. Patrick J. Combs, appellant. ___ N.W.2d ___ Filed March 5, 2021. No. S-20-335. 1. Effectiveness of Counsel: Appeal and Error. Appellate review of a claim of ineffective assistance of counsel is a mixed question of law and fact. When reviewing a claim of ineffective assistance of counsel, an appellate court reviews the factual findings of the lower court for clear error. With regard to the questions of counsel’s performance or prejudice to the defendant as part of the two-pronged test articulated in Strickland v. Washington, 466 U.S. 668 , 104 S. Ct. 2052 , 80 L. Ed. 2d 674 (1984), an appellate court reviews such legal determinations independently of the lower court’s decision. 2. Postconviction: Evidence. In an evidentiary hearing on a motion for postconviction relief, the trial judge, as the trier of fact, resolves con- flicts in the evidence and questions of fact. 3. Postconviction: Constitutional Law. Postconviction relief is a very narrow category of relief, available only to remedy prejudicial constitu- tional violations that render the judgment void or voidable. 4. Postconviction: Effectiveness of Counsel: Appeal and Error. To establish a right to postconviction relief based on a claim of ineffec- tive assistance of counsel, the defendant has the burden, in accordance with Strickland v. Washington, 466 U.S. 668 , 104 S. Ct. 2052 , 80 L. Ed. 2d 674 (1984), to show that counsel’s performance was deficient; that is, counsel’s performance did not equal that of a lawyer with ordi- nary training and skill in criminal law. Next, the defendant must show that counsel’s deficient performance prejudiced the defense in his or her case. 5. Postconviction: Effectiveness of Counsel: Presumptions: Appeal and Error. After a trial, conviction, and sentencing, if counsel deficiently fails to file or perfect an appeal after being so directed by the criminal defendant, prejudice will be presumed and counsel will be deemed inef- fective, thus entitling the defendant to postconviction relief.  - 588 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports STATE v. COMBS Cite as 308 Neb. 587 6. Effectiveness of Counsel: Appeal and Error. Where the defendant has provided specific instructions to his or her counsel to file a notice of appeal, counsel’s failure to follow those instructions is deficient performance. On the other hand, where the defendant has explicitly instructed his or her counsel not to file an appeal, the defendant cannot later complain that, by following his or her instructions, counsel per- formed deficiently. 7. Effectiveness of Counsel: Intent: Appeal and Error. Where the defend­ant has not conveyed his or her intent with respect to an appeal either way, it must first be determined whether trial counsel consulted with the defendant about the appeal before a determination can be made about deficient performance. 8. Effectiveness of Counsel: Appeal and Error: Words and Phrases. In the context of a claim of ineffectiveness of counsel, the term “consult” means advising the defendant about the advantages and disadvantages of taking an appeal and making a reasonable effort to discover the defend­ ant’s wishes. 9. Effectiveness of Counsel: Appeal and Error. If counsel has consulted with the defendant, then counsel performed deficiently only by failing to follow the defendant’s express instructions regarding an appeal. Appeal from the District Court for Lancaster County: Robert R. Otte, Judge. Affirmed. Candice C. Wooster, of Brennan & Nielsen Law Offices, P.C., for appellant. Douglas J. Peterson, Attorney General, and Austin N. Relph for appellee. Heavican, C.J., Miller-Lerman, Cassel, Stacy, and Funke, JJ. Heavican, C.J. INTRODUCTION Patrick J. Combs appeals from the district court’s denial, fol- lowing an evidentiary hearing, of his motion seeking postcon- viction relief. In that motion, Combs alleged that his counsel was ineffective for failing to file a direct appeal when directed to do so. We affirm.  - 589 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports STATE v. COMBS Cite as 308 Neb. 587 BACKGROUND Combs was convicted in March 2018 for one count of theft by unlawful taking, one count of attempted theft by unlawful taking, and one count of abuse of a vulnerable adult. On May 14, he was sentenced to 5 years’ probation. No direct appeal was filed. Combs subsequently filed a motion seeking postconviction relief, alleging that his trial counsel was ineffective for failing to file an appeal. An evidentiary hearing was held on Combs’ motion on the question of whether counsel was ineffective for failing to file an appeal. At that hearing, depositions of both Combs and his trial counsel, Robert Creager, were offered into evidence. Those depositions reveal the following timeline relevant to the issues raised by Combs’ postconvic- tion motion. On May 15, 2018, Creager emailed a billing statement to Combs. In his email, Creager stated that “[w]ith 20K still in trust, the balance due would be around $16k. I would accept a $5k discount if we do the appeal for a flat fee of $10k. The [$]5k would be payable now, and the $10K would be payable when the Appellant’s brief date is set.” On May 29, 2018, Combs emailed Creager, indicating that he was “inclined to pursue an appeal,” but that his wife had reservations. Combs then asked several questions relating to the appeal. Combs ended the email by stating that “[w]e are sending you $5000 this week. Our schedule is pretty hectic this week[,] and we will be out of town next week[,] so coming down to your office might be tough, but we can certainly talk by phone when you are available.” Combs and Creager agree that they spoke on June 8, 2018. Combs testified that during the conversation, he told Creager that he wanted to appeal. Combs indicated in his deposition that after telling Creager to appeal, he and his wife “cele­ brated” that decision. Conversely, Creager testified that he received no direc- tion to appeal during that call, but simply answered more  - 590 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports STATE v. COMBS Cite as 308 Neb. 587 questions regarding the appeal process, including informing Combs that he could file the appeal and later withdraw it if he no longer wanted to pursue the appeal. Creager alleges that he ended the conversation by asking Combs to let him know by the following Monday, June 11, 2018, whether he wanted to appeal and that he, Creager, checked his email and phone messages multiple times on that Monday to ensure he did not miss a message from Combs. Receiving none, Creager did not file an appeal. A check for $5,000 was apparently received by the book- keeper at Creager’s law firm on June 11, 2018, though Creager testified that he had no personal knowledge of its receipt. Neither the check, nor a copy of the canceled check, is part of our record. Combs contacted Creager on June 14, 2018, the day after the appeal deadline had passed, to ask whether the appeal had been filed. Combs subsequently filed this postconviction motion. Following the hearing, the district court denied the motion for postconviction relief. In so doing, it made findings of fact that it believed Creager’s testimony over Combs’ testimony, both because it found Creager more credible than Combs and because Combs’ wife offered no testimony corroborating Combs’ assertion that she was aware Creager had been directed to file an appeal. The district court further rejected Combs’ claim that Creager had an obligation to confirm his belief that Combs did not want to pursue an appeal. It found that the pay- ment of $5,000, particularly on the facts presented, did not support an express direction to Creager that an appeal should be filed on Combs’ behalf. Combs appeals. ASSIGNMENT OF ERROR On appeal, Combs assigns three assignments of error that can be consolidated as one: The district court erred in find- ing that counsel was not ineffective by failing to file a direct appeal.  - 591 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports STATE v. COMBS Cite as 308 Neb. 587 STANDARD OF REVIEW [1,2] Appellate review of a claim of ineffective assistance of counsel is a mixed question of law and fact. 1 When reviewing a claim of ineffective assistance of counsel, an appellate court reviews the factual findings of the lower court for clear error. 2 With regard to the questions of counsel’s performance or preju- dice to the defendant as part of the two-pronged test articulated in Strickland v. Washington, 3 an appellate court reviews such legal determinations independently of the lower court’s deci- sion. 4 In an evidentiary hearing on a motion for postconviction relief, the trial judge, as the trier of fact, resolves conflicts in the evidence and questions of fact. 5 ANALYSIS Combs assigns that the district court erred in not finding that his counsel was ineffective for failing to file a direct appeal. He makes three arguments in support of this conclu- sion: (1) that counsel erred in not filing an appeal when he was requested to do so, (2) that counsel erred in not following up with Combs regarding the filing of an appeal, and (3) that counsel erred in failing to appeal even after receiving payment for such an appeal. [3-5] Postconviction relief is a very narrow category of relief, available only to remedy prejudicial constitutional violations that render the judgment void or voidable. 6 To establish a right to postconviction relief based on a claim of ineffective assistance of counsel, the defendant has the bur- den, in accordance with Strickland, 7 to show that counsel’s 1 State v. Dalton, 307 Neb. 465 , 949 N.W.2d 752 (2020). 2 Id. 3 Strickland v. Washington, 466 U.S. 668 , 104 S. Ct. 2052 , 80 L. Ed. 2d 674 (1984). 4 State v. Dalton, supra note 1 . 5 Id. 6 Id. 7 Strickland v. Washington, supra note 3 .  - 592 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports STATE v. COMBS Cite as 308 Neb. 587 perform­ance was deficient; that is, counsel’s performance did not equal that of a lawyer with ordinary training and skill in criminal law. Next, the defendant must show that counsel’s deficient performance prejudiced the defense in his or her case. 8 After a trial, conviction, and sentencing, if counsel deficiently fails to file or perfect an appeal after being so directed by the criminal defendant, prejudice will be pre- sumed and counsel will be deemed ineffective, thus entitling the defendant to postconviction relief. 9 [6] Where the defendant has provided specific instructions to his or her counsel to file a notice of appeal, counsel’s failure to follow those instructions is deficient performance. 10 On the other hand, where the defendant has explicitly instructed his or her counsel not to file an appeal, the defendant cannot later complain that, by following his or her instructions, counsel performed deficiently. 11 [7-9] Where the defendant has not conveyed his or her intent with respect to an appeal either way, it must first be determined whether trial counsel consulted with the defendant about the appeal before a determination can be made about deficient performance. 12 In this context, the term “consult” means advising the defendant about the advantages and dis­ advantages of taking an appeal and making a reasonable effort to discover the defendant’s wishes. 13 If counsel has consulted with the defendant, then counsel performed deficiently only by failing to follow the defendant’s “express instructions” regarding an appeal. 14 8 State v. Dalton, supra note 1 . 9 Id. 10 See Roe v. Flores-Ortega, 528 U.S. 470 , 120 S. Ct. 1029 , 145 L. Ed. 2d 985 (2000). 11 See id. 12 See id. 13 Id. 14 See id., 528 U.S. at 478 .  - 593 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports STATE v. COMBS Cite as 308 Neb. 587 Failing to File Appeal Upon Request to Do So. Combs first asserts that he instructed Creager to file an appeal during their telephone conversation on June 8, 2018, and that Creager was ineffective for failing to do so. In an evidentiary hearing for postconviction relief, the post- conviction trial judge, as the trier of fact, resolves conflicts in the evidence and questions of fact, including witness cred- ibility and the weight to be given a witness’ testimony. 15 And when reviewing a claim of ineffective assistance of counsel, an appellate court reviews the factual findings of the lower court for clear error. 16 Combs and Creager are in agreement that they spoke about a possible appeal on June 8, 2018. Their testimonies differ in that Combs testified he told Creager he wanted to appeal, while Creager testified that Combs said he still needed to talk with his wife about it. The record demonstrates there was a conflict between Combs’ testimony that he directed Creager to appeal and Creager’s testimony that he received no such direction. In this instance, the district court explicitly found Creager’s testimony to be more credible. Having reviewed the record, and given deference to the district court’s findings of fact, we find no clear error in the court’s findings. Creager was not deficient in failing to file an appeal that the district court determined Creager was not directed to file. Combs’ argument to the contrary is with- out merit. Failing to Follow Up Regarding Filing of Appeal. Combs next argues that Creager was ineffective in failing to follow up with him regarding whether he wished to file an appeal. 15 State v. Dalton, supra note 1 . 16 Id.  - 594 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports STATE v. COMBS Cite as 308 Neb. 587 We addressed similar facts in State v. Dalton. 17 There, the defendant argued that his counsel was ineffective, not only by failing to file a direct appeal, but also by failing to obtain an “explicit directive” from defendant regarding an appeal. 18 We rejected such a burden on trial counsel, noting that “[i]t is simply not under defense counsel’s power to force a client to provide an explicit response to inquiries regarding the client’s right to appeal.” 19 Here, Combs argues that Creager should have followed up with him between June 8 and 13, 2018, to determine whether Combs wanted to appeal. The record shows that Combs and Creager had multiple conversations, even prior to his sentenc- ing, regarding a possible appeal and that Combs kept putting off the decision, asking more questions, and indicating that his wife needed to be convinced. The district court found as credible Creager’s testimony that because the deadline was approaching, he told Combs to let him know by June 11 if he wanted to file an appeal. These facts show the difficulty with placing such a burden on defense counsel. As we recognized in Dalton, it is not within counsel’s power to force a defendant to give an explicit response on the issue of an appeal. 20 U.S. Supreme Court case law explains that the failure to file an appeal after one is requested is deficient conduct and that the failure to file an appeal after being told the defendant did not wish to appeal is not deficient conduct. 21 In such instances where no direction is given, as is the situation presented here, counsel must con- sult with the defendant as to the topic of an appeal, which includes “advising the defendant about the advantages and 17 Id. 18 Id. at 472, 949 N.W.2d at 758. 19 Id. 20 State v. Dalton, supra note 1 . 21 See Roe v. Flores-Ortega, supra note 10 .  - 595 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports STATE v. COMBS Cite as 308 Neb. 587 disadvantages of taking an appeal, and making a reasonable effort to discover the defendant’s wishes.” 22 In this case, there is no dispute that Creager consulted with Combs about Combs’ right to appeal and that Combs was to contact Creager in order to ensure that an appeal was filed. It was Combs’ responsibility to request that Creager file an appeal. As we noted above, the district court found that Combs made no such request. There is no merit to Combs’ argument that Creager was deficient in failing to follow up with Combs with respect to the filing of an appeal. Failing to Appeal After Receipt of Payment for Appeal. Finally, Combs argues that Creager had notice Combs wished to file an appeal, because Combs paid $5,000 for an appeal, and that the failure to file the appeal after accepting payment was deficient performance. As an initial matter, despite Combs’ assertion to the contrary, the record is not clear that the $5,000 paid by Combs was for payment of an appeal. The emails between Combs and Creager regarding payment are not clear in stating that $5,000 was due for the filing of a notice of appeal. A copy of the check is not part of the record such that it might indicate on its face that the check was for an appeal. Moreover, Combs indicated in a May 29, 2018, email that he would be sending a check for $5,000. But by his own tes- timony, Combs did not inform Creager until June 8 that he wished to appeal. Given this evidence and our standard of review, the trial court’s finding of facts regarding the $5,000 payment are not clear error. The record establishes that Creager consulted with Combs about the appeal. In such an instance, only the failure to com- ply with the “express instructions” given by Combs would 22 Id., 528 U.S. at 478 .  - 596 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports STATE v. COMBS Cite as 308 Neb. 587 constitute deficient conduct. 23 The payment of $5,000, par- ticularly under the facts as noted above, did not qualify as an express instruction. Creager was not deficient in failing to file a direct appeal based upon the payment of $5,000 by Combs. Combs’ final argument is without merit. CONCLUSION The order of the district court dismissing Combs’ motion for postconviction relief is affirmed. Affirmed. Papik and Freudenberg, JJ., not participating. 23 See id.

2021-03-19 05:08:50.214237+00

https://www.nebraska.gov/apps-courts-epub/public/viewOpinion?docId=N00007645PUB

Nebraska Supreme Court Online Library www.nebraska.gov/apps-courts-epub/ 03/19/2021 12:08 AM CDT - 538 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports RODRIGUEZ v. LASTING HOPE RECOVERY CTR. Cite as 308 Neb. 538 Angela Rodriguez and Adan Rodriguez, Special Administrators of the Estate of Melissa Rodriguez, appellants, v. Lasting Hope Recovery Center of Catholic Health Initiatives, formerly known as Lasting Hope Recovery Center of Alegent Creighton Health, et al., appellees. ___ N.W.2d ___ Filed March 5, 2021. No. S-19-1116. 1. Employer and Employee: Negligence: Liability. Under the doctrine of respondeat superior, an employer may be held vicariously liable for the negligence of an employee while acting within the scope of employment. 2. Summary Judgment: Appeal and Error. An appellate court affirms a lower court’s grant of summary judgment if the pleadings and admitted evidence show that there is no genuine issue as to any material facts or as to the ultimate inferences that may be drawn from the facts and that the moving party is entitled to judgment as a matter of law. 3. ____: ____. An appellate court reviews the district court’s grant of sum- mary judgment de novo, viewing the record in the light most favorable to the nonmoving party and drawing all reasonable inferences in that party’s favor. 4. Negligence. The question whether a legal duty exists for actionable negligence is a question of law dependent on the facts in a particu- lar situation. 5. Judgments: Appeal and Error. In reviewing questions of law, an appellate court has an obligation to reach conclusions independently of those reached by the trial court. 6. Trial: Evidence: Appeal and Error. An appellate court reviews the factual findings underpinning a trial court’s evidentiary rulings for clear error and reviews de novo the court’s ultimate determination to admit evidence over an objection.  - 539 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports RODRIGUEZ v. LASTING HOPE RECOVERY CTR. Cite as 308 Neb. 538 7. Negligence: Damages: Proof. To recover in a negligence action, a plaintiff must show that the defendant owed a duty toward the plaintiff, breached that duty, and caused damages. 8. Negligence. The threshold issue in any negligence action is whether the defendant owed a duty to the plaintiff. 9. ____. An actor whose conduct has not created a risk of physical harm to another has no duty of care to the other unless an affirmative duty created by another circumstance is applicable or a special relation exists between the actor and the third person, which imposes a duty upon the actor to control the third person’s conduct. 10. ____. The special relationship between a custodian and persons in its custody gives rise to an affirmative duty of care by the custodian to third persons. 11. ____. A custodial relationship need not be full-time physical custody giving the custodian complete control over the other person. But to the extent that there is some custody and control of a person posing dangers to others, the custodian has an affirmative duty to exercise reasonable care, consistent with the extent of custody and control. 12. Negligence: Physician and Patient: Mental Health: Liability. A psy- chiatrist is liable for failing to warn of and protect from a patient’s threatened violent behavior, or failing to predict and warn of and protect from a patient’s violent behavior, when the patient has communicated to the psychiatrist a serious threat of physical violence against himself, herself, or a reasonably identifiable victim or victims. The duty to warn of or to take reasonable precautions to provide protection from violent behavior shall arise only under those limited circumstances and shall be discharged by the psychiatrist if reasonable efforts are made to communicate the threat to the victim or victims and to a law enforce- ment agency. 13. Statutes: Judicial Construction: Legislature: Intent: Presumptions. Where a statute has been judicially construed and that construction has not evoked an amendment, it will be presumed that the Legislature has acquiesced in the court’s determination of the Legislature’s intent. 14. Negligence: Mental Health. A duty to warn and protect arises only if the information communicated to the psychiatrist leads the psychiatrist to believe that his or her patient poses a serious risk of grave bodily injury to another. 15. ____: ____. A duty to warn and protect arises only if a serious threat of physical harm was actually communicated to the psychiatrist. 16. Courts: Legislature. A court should proceed cautiously when its deci- sion would undermine a policy judgment of the Legislature. 17. Negligence: Mental Health. For a duty to warn or protect to arise, the requirement of actual communication means that the patient must  - 540 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports RODRIGUEZ v. LASTING HOPE RECOVERY CTR. Cite as 308 Neb. 538 verbally express or convey to the psychiatrist his or her prediction to commit physical violence against himself, herself, or a reasonably iden- tifiable victim or victims. 18. Summary Judgment. In the summary judgment context, a fact is mate- rial only if it would affect the outcome of the case. 19. Negligence. The common law’s ordinary duty of care requires actors to exercise reasonable care. 20. ____. Whether an actor exercised reasonable care depends on whether a reasonable person of ordinary prudence would have done more in the same or similar circumstances. 21. Negligence: Juries. Where reasonable minds can disagree about whether reasonable care was followed, the question is generally left to the jury. 22. Negligence: Liability: Public Policy. When an articulated counter- vailing principle or policy warrants denying or limiting liability in a particular class of cases, a court may decide that, as a matter of law, the defendant has no duty or that the ordinary duty of reasonable care requires modification. 23. Judgments: Negligence: Public Policy. A determination of no duty as a matter of law should be grounded in public policy and based upon legislative facts, not adjudicative facts arising out of the particular cir- cumstances of the case. 24. Judgments: Negligence: Liability: Public Policy. A determination of no duty as a matter of law should be explained and justified based on articulated policies or principles that justify exempting the actor from liability or modifying the ordinary duty of reasonable care. 25. Negligence: Physician and Patient: Mental Health. Psychiatrists owe no duty as a matter of law to third parties for physical injuries caused by a patient who has not actually communicated a threat of physical violence. And once such an actual communication has taken place, any duty to warn or protect on the part of the psychiatrist can be discharged by reasonable efforts to communicate the threat to the victim and a law enforcement agency. 26. Trial: Evidence: Appeal and Error. The admission or exclusion of evidence is not reversible error unless it unfairly prejudiced a substantial right of the complaining party. 27. ____: ____: ____. Erroneous exclusion of evidence does not require reversal if the evidence would have been cumulative and other relevant evidence, properly admitted, supports the trial court’s finding. Appeal from the District Court for Douglas County: James T. Gleason, Judge. Affirmed.  - 541 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports RODRIGUEZ v. LASTING HOPE RECOVERY CTR. Cite as 308 Neb. 538 Brian E. Jorde, of Domina Law Group, P.C., L.L.O., for appellants. Cathy S. Trent-Vilim, Denise M. Destache, and Patrick G. Vipond, of Lamson, Dugan & Murray, L.L.P., for appellee Lasting Hope Recovery Center of Catholic Health Initiatives. Mary M. Schott and Joseph S. Daly, of Evans & Dixon, L.L.C., for appellee UNMC Physicians. Heavican, C.J., Miller-Lerman, Cassel, Stacy, Papik, and Freudenberg, JJ. Heavican, C.J. I. INTRODUCTION This is a tort action brought to recover damages for the wrongful death of Melissa Rodriguez, who was killed by her ex-boyfriend, Mikael Loyd. Loyd was a patient for 6 days at Lasting Hope Recovery Center (Lasting Hope), a mental health care facility in Omaha, Nebraska, where he was treated by Dr. Jeana Benton, a psychiatrist employed by the University of Nebraska Medical Center Physicians (UNMC Physicians). Hours after Lasting Hope had discharged Loyd pursuant to Benton’s order, Loyd strangled Melissa to death. As special administrators for Melissa’s estate, her parents, Angela Rodriguez and Adan Rodriguez (Special Administrators), brought a wrongful death action against Lasting Hope and UNMC Physicians for failing to warn and protect Melissa from Loyd. The district court granted summary judgment to Lasting Hope and UNMC Physicians on the basis that they owed no legal duty to Melissa. We affirm. II. FACTUAL BACKGROUND On August 8, 2013, Loyd visited the Omaha Police Department (OPD) headquarters, stating that he wished to share information about his father’s 1995 murder. He told OPD officers that he blamed his mother for the murder and that he sought OPD’s help to have her killed in retaliation.  - 542 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports RODRIGUEZ v. LASTING HOPE RECOVERY CTR. Cite as 308 Neb. 538 The OPD officers called Loyd’s grandmother, who explained that Loyd was mentally ill and “not on his medications.” Loyd’s grandmother confirmed that in the past, she had also heard Loyd threaten to kill his mother. The OPD officers next called Loyd’s mother, who lived in North Carolina, to warn her of Loyd’s threats. After a brief investigation, the OPD officers discovered an outstanding arrest warrant for Loyd, attributable to an alleged June 11, 2013, misdemeanor assault and battery of his girl- friend, Melissa. The OPD officers acknowledged that they could arrest Loyd pursuant to the warrant, but they expressed concern that if Loyd then made bond before he could obtain mental health treatment, he would again present a serious danger to the public. The OPD officers instead placed Loyd under emergency protective custody and transported him to Lasting Hope. 1 At Lasting Hope, Benton was assigned as Loyd’s treating psychiatrist. During an initial evaluation on August 9, 2013, Benton noted that Loyd “denies symptoms consistent with bipolar disorder . . . but appears extremely paranoid, distract- ible and at times appears to be responding to internal stimuli.” She determined that Loyd was “very paranoid, homicidal and delusional and [a] risk for harm to others were he to be outside the hospital environment at this time.” Benton recommended 5 to 7 days’ “hospitalization for stabilization and safety.” Loyd remained at Lasting Hope from August 8 to 14, 2013. During this time, he called his mother and Melissa using Lasting Hope’s landline telephone. Melissa twice visited Loyd at Lasting Hope. During her second visit, Melissa told Loyd that she no longer wished to be his girlfriend. Based on statements that Benton had heard in which Loyd had specifically expressed a desire to kill his mother, Lasting Hope staff called Loyd’s mother and warned her of his threats. But because Loyd had never expressed a similar threat against Melissa, she was not warned. 1 See Neb. Rev. Stat. § 71-919 (Reissue 2018).  - 543 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports RODRIGUEZ v. LASTING HOPE RECOVERY CTR. Cite as 308 Neb. 538 On August 12, 2013, Loyd dialed the 911 emergency dis- patch service to turn himself in to police on his outstanding arrest warrant. OPD officers arrived at Lasting Hope that afternoon. Lasting Hope staff informed the OPD officers that Benton wished to continue to hold Loyd for further mental health evaluation. Apparently accepting Benton’s determination that Loyd still needed mental health treatment at Lasting Hope, the OPD officers did not arrest Loyd at that time. On August 14, 2013, Benton evaluated Loyd and determined that he was ready to be discharged. According to Benton, Loyd had been compliant with his medication for 6 days. Although still delusional about his father’s murder, Loyd no longer expressed an intent to harm his mother. He reported to Benton that he “had a good conversation” with his mother over the telephone, and he committed to “not act to harm anyone.” Benton concluded that Loyd was no longer a risk to himself or to others. After providing Loyd with a supply of medication and scheduling a followup appointment at Lasting Hope, Benton discharged Loyd at 1:40 p.m. Neither Benton nor Lasting Hope staff notified OPD or Melissa of Loyd’s discharge. After Loyd was discharged, he placed numerous calls to Melissa from his cell phone. Melissa was at home with her sister, who urged Melissa to ignore Loyd’s calls. But even­ tually Melissa answered one. Loyd told her that he had been discharged from Lasting Hope. Melissa agreed to meet Loyd that evening at a park. Melissa’s body was discovered the next day, August 15, 2013. Investigators concluded that Loyd had strangled Melissa. Loyd had returned to Lasting Hope, and OPD officers arrested him there. Loyd was initially prosecuted for murdering Melissa, but in September 2013, he was found not competent to stand trial. The present action was initiated by the Special Administrators, Melissa’s parents, in the district court for Douglas County. According to the amended complaint, parties representing two groups had negligently caused Melissa’s wrongful death.  - 544 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports RODRIGUEZ v. LASTING HOPE RECOVERY CTR. Cite as 308 Neb. 538 [1] The first group, collectively referred to as the “UNMC Defendants,” consisted of UNMC Physicians; the Noll Company; and two employees of UNMC Physicians, “Jane Doe Physician #1” and “Jane Doe Nurse #1.” The second group, collectively referred to as the “Lasting Hope Defendants,” consisted of Catholic Health Initiatives, doing business as CHI Health; Alegent Health-Bergan Mercy Health System, doing business as Lasting Hope; and two employees of Lasting Hope, “John Doe #1” and “John Doe #2.” We note that certain of these entities were grouped together pursuant to the doctrine of respondeat superior, which allows an employer to be held vicariously liable for the negligence of an employee while act- ing within the scope of employment. 2 The defendants filed motions to dismiss for failing to state a claim upon which relief can be granted. 3 After a hearing, the district court concluded that the issue raised by the motions to dismiss was whether the defendants owed Melissa a duty. Holding that the Special Administrators had failed to allege sufficient facts to show that the UNMC Defendants or the Lasting Hope Defendants owed Melissa any duty, the district court ordered the complaint dismissed. We reviewed the Special Administrators’ first appeal in Rodriguez v. Catholic Health Initiatives (Rodriguez I ) and reversed the decision of the district court and remanded the cause. 4 The Special Administrators’ claim against the UNMC Defendants was sufficient to survive a motion to dismiss based on allegations, which we accepted as true, that Loyd had “‘suf- ficiently communicated’” to Benton that he intended to kill Melissa. 5 And with respect to the Lasting Hope Defendants, the Special Administrators had “alleged sufficient facts . . . , 2 See Cruz v. Lopez, 301 Neb. 531 , 919 N.W.2d 479 (2018). 3 See Neb. Ct. R. Pldg. § 6-1112(b)(6). 4 Rodriguez v. Catholic Health Initiatives, 297 Neb. 1 , 899 N.W.2d 227 (2017). 5 Id. at 15 , 899 N.W.2d at 237.  - 545 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports RODRIGUEZ v. LASTING HOPE RECOVERY CTR. Cite as 308 Neb. 538 which we accept[ed] as true, to show that Loyd was in Lasting Hope’s custody and that therefore, such facts g[a]ve rise to a duty.” 6 After our remand and some discovery, the defendants moved for summary judgment. A hearing on defendants’ motions was set for Monday, October 7, 2019. On Sunday, the day before the hearing, the Special Administrators served on the defend­ ants six affidavits, 526 pages in all, in opposition to summary judgment. The defendants objected that these affidavits were untimely served, lacked proper foundation, and consisted of hearsay. After taking the matter under advisement, the district court ultimately sustained the defendants’ objections, writing in its order that “[t]he material objected to has been ignored by the [c]ourt in its determination herein.” The district court then granted the defendants’ motions for summary judgment, concluding that the undisputed evidence showed that none of the defendants owed any duty to Melissa. According to the district court, the UNMC Defendants owed no duty to warn Melissa because Loyd had never actually communicated to Benton that he intended to harm Melissa. And the Lasting Hope Defendants owed no duty to protect Melissa because by the time of her murder, Loyd had already been discharged from Lasting Hope pursuant to Benton’s recommendation. The Special Administrators filed a timely appeal. 7 III. ASSIGNMENTS OF ERROR The Special Administrators assign, consolidated and restated, that the district court erred by (1) granting summary judgment to the UNMC Defendants and the Lasting Hope Defendants on the basis that they did not owe a duty to warn and protect Melissa from Loyd and (2) excluding six affidavits in opposi- tion to the defendants’ motions for summary judgment. 6 Id. at 12, 899 N.W.2d at 236. 7 See Neb. Rev. Stat. § 25-1912 (Cum. Supp. 2020).  - 546 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports RODRIGUEZ v. LASTING HOPE RECOVERY CTR. Cite as 308 Neb. 538 IV. STANDARD OF REVIEW [2,3] An appellate court affirms a lower court’s grant of summary judgment if the pleadings and admitted evidence show that there is no genuine issue as to any material facts or as to the ultimate inferences that may be drawn from the facts and that the moving party is entitled to judgment as a matter of law. 8 An appellate court reviews the district court’s grant of summary judgment de novo, viewing the record in the light most favorable to the nonmoving party and drawing all reason- able inferences in that party’s favor. 9 [4,5] The question whether a legal duty exists for actionable negligence is a question of law dependent on the facts in a par- ticular situation. 10 In reviewing questions of law, an appellate court has an obligation to reach conclusions independently of those reached by the trial court. 11 [6] An appellate court reviews the factual findings under- pinning a trial court’s evidentiary rulings for clear error and reviews de novo the court’s ultimate determination to admit evidence over an objection. 12 V. ANALYSIS As we have stated before, when confronted by an unimagi- nable loss such as what the Special Administrators have expe- rienced with respect to the life of Melissa, their daughter, it is natural to ask, “What more could have been done?” 13 But tort law requires that we begin with a different question: whether a legal duty existed to do anything more. 14 8 Lassalle v. State, 307 Neb. 221 , 948 N.W.2d 725 (2020). 9 Id. 10 Sundermann v. Hy-Vee, 306 Neb. 749 , 947 N.W.2d 492 (2020). 11 See id. 12 See AVG Partners I v. Genesis Health Clubs, 307 Neb. 47 , 948 N.W.2d 212 (2020). 13 Bell v. Grow With Me Childcare & Preschool, 299 Neb. 136 , 146, 907 N.W.2d 705 , 713 (2018). 14 See id.  - 547 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports RODRIGUEZ v. LASTING HOPE RECOVERY CTR. Cite as 308 Neb. 538 1. Duty [7,8] To recover in a negligence action, a plaintiff must show that the defendant owed a duty to the plaintiff, breached that duty, and caused damages as a result. 15 The threshold issue in any negligence action, and the question presented here, is whether the defendants owed a duty to the plaintiffs. 16 Specifically at issue is the UNMC Defendants’ and the Lasting Hope Defendants’ duty to warn and protect Melissa. The Special Administrators allege that the defendants’ breach of this duty proximately caused Melissa’s wrongful death. Until 2012, when discussing a defendant’s duty to control the actions of a third party, we relied on the Restatement (Second) of Torts, 17 which provides that there is generally no duty to control the conduct of a third person to prevent him or her from causing physical harm to another unless “‘a spe- cial relationship exists between the actor and the third person which imposes a duty upon the actor to control the third per- son’s conduct.’” 18 For example, “‘[o]ne who takes charge of a third person whom he [or she] knows or should know [is] likely to cause bodily harm to others if not controlled is under a duty to exercise reasonable care to control the third person to prevent him [or her] from doing such harm.’” 19 [9] Since 2012, which was after the Restatement (Third) of Torts 20 was published, we have generally relied on it, instead, when considering the duty to control the actions of a third 15 See Sundermann, supra note 10 , 306 Neb. at 763-64 , 947 N.W.2d at 503. 16 See id. 17 Restatement (Second) of Torts § 315(a) (1965). 18 Bartunek v. State, 266 Neb. 454 , 459, 666 N.W.2d 435 , 440 (2003) (quoting Restatement (Second), supra note 17). 19 Id. at 462, 666 N.W.2d at 441 (quoting Restatement (Second), supra note 17, § 319). 20 See 1 Restatement (Third) of Torts: Liability for Physical and Emotional Harm (2010) and 2 Restatement (Third) of Torts: Liability for Physical and Emotional Harm (2012).  - 548 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports RODRIGUEZ v. LASTING HOPE RECOVERY CTR. Cite as 308 Neb. 538 party. 21 It provides similarly that an actor whose conduct has not created a risk of physical harm to another has no duty of care to the other unless an affirmative duty created by another circumstance is applicable. 22 However, “‘[a]n actor in a special relationship with another owes a duty of reasonable care to third persons with regard to risks posed by the other that arise within the scope of the relationship.’” 23 Specifically, § 41(b) of the Restatement (Third) identifies four special relationships that give rise to such a duty: “(1) a parent with dependent chil- dren, (2) a custodian with those in its custody, (3) an employer with employees when the employment facilitates the employ- ee’s causing harm to third parties, and (4) a mental-health pro- fessional with patients.” 24 As the parties agree, the special relationship here, if any, was one based on custody. We have never before adopted § 41(b) of the Restatement (Third) recognizing that the rela- tionship between a mental-health professional and patients gives rise to a generalized duty of reasonable care, nor do we do so here. [10,11] We have twice before recognized that having cus- tody over another person creates a special relationship. 25 In Rodriguez I, we adopted § 41(b)(2) of the Restatement (Third) as “consistent with our jurisprudence and prudent.” 26 A custo- dial relationship “need not be ‘full-time physical custody giv- ing the custodian complete control over the other person.’” 27 But “to the extent that ‘there is some custody and control of a person posing dangers to others, the custodian has an 21 Ginapp v. City of Bellevue, 282 Neb. 1027 , 809 N.W.2d 487 (2012). 22 Id. 23 Id. at 1034 , 809 N.W.2d at 492 (quoting 2 Restatement (Third), supra note 20, § 41(a)). See, also, 2 Restatement (Third), supra note 20, § 37. 24 2 Restatement (Third), supra note 20, § 41(b) at 65. 25 See, Rodriguez I, supra note 4; Ginapp, supra note 21. 26 Rodriguez I, supra note 4, 297 Neb. at 12 , 899 N.W.2d at 236. 27 Id. (quoting 2 Restatement (Third), supra note 20, § 41, comment f.).  - 549 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports RODRIGUEZ v. LASTING HOPE RECOVERY CTR. Cite as 308 Neb. 538 affirmative duty to exercise reasonable care, consistent with the extent of custody and control.’” 28 Based on this rule of duty in a custodial special relationship, we concluded in Rodriguez I that the Special Administrators had alleged sufficient facts to survive a motion to dismiss. In Rodriguez I, on review of the district court’s order grant- ing dismissal, we accepted as true the Special Administrators’ allegations in the amended complaint that Loyd was admitted to Lasting Hope on August 8, 2013, under emergency protec- tive custody; held involuntarily there for 6 days, during which Loyd sufficiently communicated to Benton threats of physical violence against Melissa; and allowed to “le[ave] Lasting Hope on his own, without supervision, being questioned or stopped, and without Lasting Hope even noticing he was gone.” If facts supported these allegations, we found that such facts could have given rise to the defendants’ duty to warn and protect Melissa from Loyd. After this court’s remand and some discovery, however, the district court granted summary judgment to the UNMC Defendants and the Lasting Hope Defendants. The district court found uncontroverted evidence that rebutted two of the Special Administrators’ essential allegations in the amended complaint. Specifically, the district court held first that because Loyd had never communicated to Benton or other Lasting Hope staff that he intended to harm Melissa, no duty to warn her could arise. Second, the district court held that because, by the time of Melissa’s murder, Loyd had been discharged from Lasting Hope “pursuant to the opinion of [Benton,] a qualified psychiatrist,” any custodial duty to protect Melissa had termi- nated. We review each holding in turn. (a) Duty to Warn The Special Administrators’ first argument against sum- mary judgment concerns the very language of this court’s 28 Id.  - 550 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports RODRIGUEZ v. LASTING HOPE RECOVERY CTR. Cite as 308 Neb. 538 precedent. They concede that the facts do not support their allegation in the amended complaint that Loyd actually com- municated to Benton any intent to harm Melissa. Yet, the Special Administrators invite us to “reconsider” whether such actual communication is necessary. 29 They contend that recon- sideration of this requirement would allow this court to “depart from the current narrow and punitive application that liability for failure to warn can only exists [sic] if the eventual assailant or murder[er] directly so states their future plans of murder or mayhem to their psychiatrist or mental health provider.” 30 We determined the extent of psychiatrists’ duty to warn and protect third-party victims from their patients in Munstermann v. Alegent Health. 31 There, the family of a woman murdered by her boyfriend sued the hospital and psychiatrist that had treated the boyfriend in inpatient care. The family alleged that the psychiatrist had proximately caused the woman’s death by failing to take reasonable measures to warn and protect her from the boyfriend’s violent behavior and homicidal ideation. The jury was instructed that this was an action based upon a claim of malpractice and that the question was whether the defendants had exercised reasonable care consistent with the circumstances to protect third parties from the boyfriend in inpatient treatment. But we specifically found that those jury instructions were inconsistent with principles set forth by our Legislature. 32 We noted that although no statute explicitly addressed the duty of psychiatrists to warn and protect, other statutes addressed such duty for mental health professionals and psychologists, respectively. 33 Namely, the Mental Health Practice Act 34 and 29 Brief for appellants at 25. 30 Id. 31 Munstermann v. Alegent Health, 271 Neb. 834 , 716 N.W.2d 73 (2006). 32 Id. 33 Id. 34 See Neb. Rev. Stat. §§ 38-2102 to 38-2139 (Reissue 2016 & Cum. Supp. 2020).  - 551 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports RODRIGUEZ v. LASTING HOPE RECOVERY CTR. Cite as 308 Neb. 538 the Psychology Practice Act 35 each contain limits on their duty in connection with treating patients with mental illness. These limits were statutorily enacted in response to the California Supreme Court’s decision in Tarasoff v. Regents of University of California, 36 which held that a psychother­ apist who knows or should know that a patient poses a serious danger of violence to a third party owes a duty to exercise reasonable care to warn and protect that third party. According to Tarasoff, a therapist’s relationship with a patient affords the therapist control and authority over the patient in a way that closely resembles a custodian’s control and authority over a person in custody. This special relationship thus requires the therapist to exercise reasonable care, depending on the circum- stances, toward potential third-party victims of the patient. 37 For example, if the identity of a patient’s potential victim is known, reasonable care might require the therapist to, at least, warn the victim; but if no victim is reasonably identifiable, reasonable care might require the therapist to take other protec- tive precautions, such as maintaining or asserting custody over the patient or warning law enforcement or other appropriate officials of the danger. 38 Like legislatures in many other states, the Nebraska Legislature moved quickly after Tarasoff to circumvent a simi- larly sweeping rule in Nebaska and, instead, to restrict ther­ apists’ duty to warn and protect potential victims of patients’ experiencing mental illness. 39 Sections 38-2137(1) and 38-3132(1) limited liability for any mental health practitioner 35 See Neb. Rev. Stat. §§ 38-3101 to 38-3133 (Reissue 2016 & Cum. Supp. 2020). 36 Tarasoff v. Regents of University of California, 17 Cal. 3d 425 , 551 P.2d 334 , 131 Cal. Rptr. 14 (1976). 37 See id. 38 See id. See, also, John G. Fleming & Bruce Maximov, The Patient or His Victim: The Therapist’s Dilemma, 62 Cal. L. Rev. 1025 (1974). 39 See Munstermann, supra note 31 .  - 552 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports RODRIGUEZ v. LASTING HOPE RECOVERY CTR. Cite as 308 Neb. 538 or psychologist whose patient communicated to him or her a serious threat of physical violence against himself, herself, or another reasonably identifiable victim. 40 [12] In Munstermann, we concluded that although neither of these statutes explicitly addressed the potential liability of psychiatrists, there was no rational basis for the Legislature to have intended a psychiatrist’s duty to be bound by a different standard. Thus, under the Munstermann rule: [A] psychiatrist is liable for failing to warn of and protect from a patient’s threatened violent behavior, or failing to predict and warn of and protect from a patient’s vio- lent behavior, when the patient has communicated to the psychiatrist a serious threat of physical violence against himself, herself, or a reasonably identifiable victim or victims. The duty to warn of or to take reasonable precau- tions to provide protection from violent behavior shall arise only under those limited circumstances . . . and shall be discharged by the psychiatrist if reasonable efforts are made to communicate the threat to the victim or victims and to a law enforcement agency. 41 [13] Where a statute has been judicially construed and that construction has not evoked an amendment, it will be presumed that the Legislature has acquiesced in the court’s determination of the Legislature’s intent. 42 By now, more than 14 years have passed since our decision in Munstermann, and in that time, the Legislature has not amended either of the statutes on which the Munstermann rule is based. 43 Nor has the Legislature adopted an alternative duty of psychiatrists to warn and protect third parties from the psychiatrists’ patients. As such, we view the Munstermann rule as having received legislative acquiescence. 40 See id. 41 Id. at 847, 716 N.W.2d at 85 . 42 Drought v. Marsh, 304 Neb. 860 , 937 N.W.2d 229 (2020). 43 See §§ 38-2137(1) and 38-3132(1).  - 553 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports RODRIGUEZ v. LASTING HOPE RECOVERY CTR. Cite as 308 Neb. 538 [14,15] Since Munstermann, we have clarified that certain language in the Munstermann rule is critical to properly limit psychiatrists’ duty to third parties. “‘[A] duty to warn and protect arises only if the information communicated to the psy- chiatrist leads the psychiatrist to believe that his or her patient poses a serious risk of grave bodily injury to another.’” 44 As a result, the “‘question is whether a serious threat of physical harm was actually “communicated” to the psychiatrist.’” 45 Because we do not find this line of cases to be in error, we reject the Special Administrators’ invitation to reconsider our requirement of actual communication. The Munstermann rule is based on two statutes, duly enacted by the Nebraska Legislature. Like the Munstermann rule, both statutes explicitly require that for a duty to warn to arise, a serious threat of phys- ical violence against a reasonably identifiable victim be “com- municated” to a psychologist or mental health practitioner. 46 To negate the requirement that a threat actually be communicated to a psychiatrist would undermine the statutes on which the Munstermann rule is based. Moreover, the statutes on which Munstermann is based were drafted to reflect the Legislature’s reasoned policy judgment. The language in §§ 38-2137(1) and 38-3132(1) represents the Legislature’s effort to strike the appropriate balance between assuring patients that what they disclose to a mental health care provider will be held in confidence and protecting the safety of third parties the patient intends to harm. 47 “In other words, the statutory language is the result of [the Legislature’s] balancing risk and utility, considering the magnitude of the risk, relationship of the parties, nature of the risk, opportunity and ability to exercise care, foreseeability of the harm, and 44 Rodriguez I, supra note 4, 297 Neb. at 18 , 899 N.W.2d at 239 (quoting Munstermann, supra note 31 ) (emphasis supplied). 45 Id. 46 See §§ 38-2137(1) and 38-3132(1). 47 See Munstermann, supra note 31 .  - 554 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports RODRIGUEZ v. LASTING HOPE RECOVERY CTR. Cite as 308 Neb. 538 public policy interest in the proposed solution.” 48 Because these policy factors weighed equally for psychologists and mental health practitioners as for psychiatrists, we found in Munstermann that “[t]he Legislature has made a public policy determination with respect to the Tarasoff duty that this court is bound to respect” and apply to psychiatrists, as well. 49 [16] We “‘“‘proceed cautiously’”’” when our decision would undermine a policy judgment of the Legislature, our coequal branch. 50 And the Special Administrators have failed to show that it would be proper to depart from the Legislature’s reasoned judgment here. Accordingly, we decline to do so. [17] Applying our precedent, we agree with the district court’s analysis of the defendants’ duty to warn. As the district court found, the Munstermann rule requires actual communica- tion. 51 The term “actual communication” is not defined by stat- utes. In this context, we construe its plain text to mean that the patient must verbally express or convey to the psychiatrist his or her prediction to commit physical violence against himself, herself, or a reasonably identifiable victim or victims. 52 Here, it is uncontroverted that Loyd never actually commu- nicated to Benton that he intended to harm Melissa. We noted in Rodriguez I that if the Special Administrators’ claim were supported by facts that Loyd had communicated to Benton a serious threat of physical violence against Melissa, those facts could give rise to a duty to warn. 53 But the undisputed facts now in the record do not support that allegation. Indeed, the only reasonably identifiable victim whom Loyd conveyed an intent to physically harm was his mother. 48 Id. at 847, 716 N.W.2d at 84 . 49 Id. at 846 , 716 N.W.2d at 84 . See, Tarasoff, supra note 36 . 50 State ex rel. Veskrna v. Steel, 296 Neb. 581 , 599, 894 N.W.2d 788 , 801 (2017). 51 Rodriguez I, supra note 4. 52 See Fredericks v. Jonsson, 609 F.3d 1096 (10th Cir. 2010). 53 See Rodriguez I, supra note 4.  - 555 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports RODRIGUEZ v. LASTING HOPE RECOVERY CTR. Cite as 308 Neb. 538 During Benton’s evaluations, Loyd specifically expressed an intention to kill his mother in retaliation for his father’s death. Based on these verbal expressions of threats, Benton ordered Lasting Hope staff to call Loyd’s mother to warn her. And by the time Benton had ordered Loyd’s discharge, she knew that OPD was aware of Loyd’s threats of physical violence against his mother, because Lasting Hope staff had discussed the threats with OPD officers, who also warned Loyd’s mother. As the Special Administrators now concede, Loyd never expressed to Benton or anyone else at Lasting Hope that he intended to harm Melissa. He never identified Melissa by name or even by description in connection with his expression of homicidal ideation. And to the extent that the outstanding arrest warrant identified Melissa as the victim of Loyd’s past misconduct, it did not amount to an actual communication by Loyd, nor did it predict that he would commit physical vio- lence against Melissa in the future. As a result, no duty to warn Melissa was triggered under Munstermann. 54 The Special Administrators have failed to raise a dispute about whether Loyd actually communicated to Benton that he wished to physically harm Melissa. Instead, the record supports the UNMC Defendants’ and the Lasting Hope Defendants’ argument for summary judgment that he did not. Accordingly, we affirm the decision of the district court to grant summary judgment for the defendants on the issue of duty to warn. (b) Duty to Protect As to the issue of duty to protect, the district court granted summary judgment to the defendants by reasoning that to the extent that they were Loyd’s custodians, they did not breach their duty of reasonable care toward Melissa. The dis- trict court reached this conclusion based on undisputed facts that at the time of Melissa’s murder, Loyd had already been discharged “pursuant to the opinion of [Benton,] a qualified psychiatrist.” Given that any custodianship over Loyd had 54 See Munstermann, supra note 31 .  - 556 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports RODRIGUEZ v. LASTING HOPE RECOVERY CTR. Cite as 308 Neb. 538 thus terminated, the district court held that no new duty of reasonable care could arise to require Benton and Lasting Hope to protect Melissa, a third party. Accordingly, summary judgment was granted for the defendants on the issue of duty to protect. In arguing that summary judgment on this issue was in error, the Special Administrators allege that the district court viewed the relevant time period too narrowly. According to the Special Administrators, instead of focusing only on the period directly before Melissa’s death, the district court should have found that the defendants were negligent because of their actions and omissions before Loyd was discharged. The Special Administrators cite the testimony of Dr. Bruce Gutnik that in his medical judgment, Benton’s order to dis- charge Loyd was premature. The defendants dispute that Loyd was ever in Lasting Hope’s custody because, they claim, he remained there voluntarily. Based on this factual dispute, the Special Administrators contend that summary judgment was inappropriate. We agree that the question of whether Loyd was ever in Lasting Hope’s custody for purposes of the special relation- ship under the Restatement (Third), § 41(b)(2), 55 is a genuine factual dispute here. 56 But we disagree that it is material to the disposition of this case. [18] In the summary judgment context, a fact is material only if it would affect the outcome of the case. 57 But here, even assuming arguendo that Loyd was in Lasting Hope’s cus- tody while he was a patient there, the undisputed facts show that Melissa’s death cannot be legally attributed to a breach of duty by the defendants. We concur with the decision of the district court to grant summary judgment to the defend­ ants, although we reach this decision not based on a lack of 55 See 2 Restatement (Third), supra note 20, § 41(b)(2). 56 See Wintroub v. Nationstar Mortgage, 303 Neb. 15 , 927 N.W.2d 19 (2019). 57 Pitts v. Genie Indus., 302 Neb. 88 , 921 N.W.2d 597 (2019).  - 557 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports RODRIGUEZ v. LASTING HOPE RECOVERY CTR. Cite as 308 Neb. 538 custody but instead because Loyd did not communicate to the defendants that he intended to physically injure Melissa. [19-21] As we stated above, our common law generally imposes on actors an affirmative duty, to the extent of their custody over another person, to protect third parties from the person in custody. 58 This common-law duty requires the actor to exercise reasonable care consistent with the extent of custody and control. 59 We ask, what would a reasonable person of ordinary prudence have done in the same or similar circumstances? 60 Where reasonable minds can disagree about whether reasonable care was followed, we generally leave the question to the jury. 61 [22] But sometimes reasonable minds cannot disagree about whether an actor exercised reasonable care. When an articulated countervailing principle or policy warrants denying or limiting liability in a particular class of cases, a court may decide that, as a matter of law, the defendant has no duty or that the ordi- nary duty of reasonable care requires modification. 62 [23,24] A determination of no duty as a matter of law should be grounded in public policy and based upon legislative facts, not adjudicative facts arising out of the particular circumstances of the case. 63 And such determination should be explained and justified based on articulated policies or principles that justify exempting the actor from liability or modifying the ordinary duty of reasonable care. 64 58 See Rodriguez I, supra note 4. 59 See id. 60 See id. 61 See Reiber v. County of Gage, 303 Neb. 325 , 928 N.W.2d 916 (2019). See, also, 1 Restatement (Third), supra note 20, § 8. 62 McReynolds v. RIU Resorts & Hotels, 293 Neb. 345 , 880 N.W.2d 43 (2016). See, also, 1 Restatement (Third), supra note 20, § 7(b). 63 See McReynolds, supra note 62. 64 Kimminau v. City of Hastings, 291 Neb. 133 , 864 N.W.2d 399 (2015). See, also, 1 Restatement (Third), supra note 20, § 7, comment j.  - 558 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports RODRIGUEZ v. LASTING HOPE RECOVERY CTR. Cite as 308 Neb. 538 Here, there is such a countervailing policy to warrant a find- ing that, as a matter of law, no duty to protect was triggered. As analyzed above, the first duty implicated by Munstermann is the psychiatrist’s duty to warn. 65 But by its plain language, the Munstermann rule applies equally to the psychiatrist’s duty to protect. In each clause of the Munstermann rule that limits psychia- trists’ duty to warn, there is an equal limitation on their duty to protect. For example, psychatrists’ liability is limited for “fail- ing to warn of and protect from a patient’s threatened violent behavior, or failing to predict and warn of and protect from a patient’s violent behavior” unless the patient has communi- cated to the psychiatrist a serious threat of physical harm. 66 And “[t]he duty to warn of or take reasonable precautions to provide protection from violent behavior shall arise only under those limited circumstances . . . .” 67 To the extent that any duty to warn and protect does arise, it “shall be discharged by the psychiatrist if reasonable efforts are made to communi- cate the threat to the victim or victims and to a law enforce- ment agency.” 68 As recounted above, with the Legislature’s acquiescence, we adapted these statements in the Munstermann rule directly from the Legislature’s identical limitations on mental health practitioners’ and psychologists’ liability. 69 The Legislature explicitly enacted these limitations in response to Tarasoff and, with them, fashioned a state policy “to preempt an expansive ruling [in Nebraska] that a therapist can be held liable for the mere failure to predict potential violence by his or her 65 See Munstermann, supra note 31 . 66 Munstermann, supra note 31 , 271 Neb. at 847 , 716 N.W.2d at 85 (emphasis supplied). 67 Id. (emphasis supplied). 68 Id. 69 See §§ 38-2137(1) and 38-3132(1).  - 559 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports RODRIGUEZ v. LASTING HOPE RECOVERY CTR. Cite as 308 Neb. 538 patient.” 70 Just as failure to warn claims are premised in part on psychiatrists’ duty to predict their patients’ future violence, so too are failure to protect claims. Accordingly, we view the Munstermann rule as an accurate determination of state policy with respect to the duty of psychiatrists to warn—and pro- tect—third parties from their patients’ violent behavior. Our survey of other jurisdictions indicates that we are far from alone in applying a limiting rule to the duty to warn and protect in this way. Except for those jurisdictions that have spe- cifically stated in court rule 71 or statute 72 that the duties to warn and protect should be disengaged from each other and analyzed separately, most jurisdictions have opted to analyze the duty to warn and protect as one, like Tarasoff did. 73 For example, the legislatures in both Louisiana and Michigan codified statutes nearly identical to the Munstermann rule, 74 and appellate courts have interpreted the statutes to foreclose the liability of ther­ apists for failing to warn and protect third parties from patients unless a patient has communicated to the therapist a reasonably identifiable victim. 75 [25] Likewise, in accord with this state’s determination of policy set forth in Munstermann, we apply a rule of no duty 70 Munstermann, supra note 31 , 271 Neb. at 846 , 716 N.W.2d at 84 (citing Ewing v. Goldstein, 120 Cal. App. 4th 807 , 15 Cal. Rptr. 3d 864 (2004)). See Tarasoff, supra note 36 . 71 See, e.g., Texas Home Management, Inc. v. Peavy, 89 S.W.3d 30 (Tex. 2002). 72 See, e.g., Paul S. Appelbaum et al., Statutory Approaches to Limiting Psychiatrists’ Liability for Their Patients’ Violent Acts, 146 Am. J. Psychiatry 821 (1989) (citing the American Psychiatric Association’s model statute). 73 See Alan R. Felthous & Claudia Kachigan, To Warn and to Control: Two Distinct Legal Obligations or Variations of a Single Duty to Protect? 19 Behav. Sci. & L. 355 (2001). See, also, Tarasoff, supra note 36 . 74 See, La. Stat. Ann. § 9:2800.2 (2018); Mich. Comp. Laws Ann. § 330.1946 (West 1999). 75 See, e.g., Hines v. Bick, 566 So. 2d 455 (La. App. 1990); Swan v. Wedgwood Family Services, 230 Mich. App. 190 , 583 N.W.2d 719 (1998).  - 560 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports RODRIGUEZ v. LASTING HOPE RECOVERY CTR. Cite as 308 Neb. 538 as a matter of law to limit a psychiatrist’s liability for failing to warn or protect third parties injured by a patient. 76 Under our decision in Munstermann, psychiatrists owe no duty as a mater of law to third parties for physical injuries caused by a patient who has not actually communicated a threat of physical violence. And once such an actual communication has taken place, any duty to warn or protect on the part of the psychia- trist can be discharged by reasonable efforts to communicate the threat to the victim and a law enforcement agency. 77 Here, the Special Administrators rightly frame their claim as one based on the defendants’ duty to protect Melissa, a third party, from Loyd. Specifically, they allege that the defendants failed to protect her by failing to turn Loyd over to OPD on August 12, 2013, and by prematurely discharging Loyd from Lasting Hope on August 14 without notifying OPD and Melissa. As the undisputed facts show, both of these alleged breaches of duty are attributable to the actions or omissions of Benton. She was “ultimately responsible” for Loyd’s treatment and discharge. 78 As Loyd’s treating psychiatrist, Benton conducted the initial intake evaluation of Loyd and determined that he needed to be hospitalized at Lasting Hope for 5 to 7 days. Based on the initial evaluation, she then determined that despite Loyd’s attempt to turn himself in to OPD on August 12, 2013, he needed further treatment and was not yet ready to be discharged from Lasting Hope. She communicated this to OPD officers via Lasting Hope staff, who merely relayed her determination. The OPD officers then left Lasting Hope with- out arresting Loyd, apparently accepting Benton’s psychiatric determination of Loyd’s condition. On August 14, 2013, as well, it was because of Benton’s order as Loyd’s treating psychiatrist that Loyd was dis- charged. Even if, as the Special Administrators allege, Lasting 76 See Munstermann, supra note 31 . 77 Id. 78 See Wilson v. Valley Mental Health, 969 P.2d 416 , 420 (Utah 1998).  - 561 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports RODRIGUEZ v. LASTING HOPE RECOVERY CTR. Cite as 308 Neb. 538 Hope staff had failed on August 12 to document OPD’s request to arrest Loyd upon his discharge, it is undisputed that Benton knew of Loyd’s outstanding arrest warrant. Still, based on her medical judgment, Benton determined that Loyd no longer posed a risk to himself or others and ordered him discharged to the public. The order to discharge Loyd was solely Benton’s. In this way, the uncontroverted facts show that Benton made both of the decisions that the Special Administrators allege allowed Loyd to be able to murder Melissa. Benton made these decisions via the authority delegated to her as Lasting Hope’s agent and UNMC Physicians’ employee. 79 As the undisputed facts show, the UNMC Defendants and the Lasting Hope Defendants did not negligently hire, train, or ­otherwise delegate authority to Benton to treat Loyd, nor are these claims specifically assigned in the Special Administrators’ briefs. The failure to protect claim is entirely based on the alleged duty and breach of Benton, a psychiatrist, to pro- tect Melissa, a third party, from Benton’s patient, Loyd. Accordingly, given these undisputed facts now before us, we hold that the Special Administrators’ claim is controlled by the Munstermann rule, not by the Restatement (Third), § 41, duty of reasonable care. 80 In Rodriguez I, we assumed that the Special Administrators’ allegations in the amended complaint were all true, includ- ing the allegation that Loyd had “‘sufficiently communi- cated’” to Benton and Lasting Hope staff threats of violence against Melissa. 81 If that allegation were supported by facts, we found that those facts could have given rise to a duty on the part of the defendants to warn and protect Melissa. 82 We 79 See RM Campbell Indus. v. Midwest Renewable Energy, 294 Neb. 326 , 886 N.W.2d 240 (2016). 80 See, Munstermann, supra note 31 ; 2 Restatement (Third), supra note 20, § 41. 81 See Rodriguez I, supra note 4, 297 Neb. at 15 , 899 N.W.2d at 237. 82 See Rodriguez I, supra note 4.  - 562 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports RODRIGUEZ v. LASTING HOPE RECOVERY CTR. Cite as 308 Neb. 538 affirm that analysis here and add that any defendant to whom Loyd had actually communicated a threat of physical violence against Melissa could have discharged the Munstermann duty to warn and protect by notifying Melissa and a law enforce- ment agency of the threat. 83 But, as analyzed above, the uncontroverted evidence in the record shows that Loyd’s lack of communicated threats against Melissa meant that no duty to warn or protect was triggered for the defendants. Despite the Special Administrators’ allega- tions in the amended complaint, they have failed to offer any evidence that Loyd actually communicated to Benton or other Lasting Hope staff that he wished to commit physical violence against Melissa. As a result, under the Munstermann rule, the Special Administrators’ duty to protect claim fails as a matter of law. We concur with the decision of the district court to grant the defendants’ motions for summary judgment on the Special Administrators’ duty to protect claim. The undisputed facts show that Melissa’s death is not legally attributable to a breach of duty by the UNMC Defendants or the Lasting Hope Defendants, because Loyd never actually communi- cated to them that he intended to harm Melissa. The Special Administrators’ first assignment of error is without merit. 2. Exclusion of Affidavits The Special Administrators’ second assignment of error is that the district court wrongfully excluded their affidavits in opposition to the defendants’ motions for summary judgment. Under Neb. Rev. Stat. § 25-1332 (Cum. Supp. 2020), after a motion for summary judgment has been filed, “[t]he adverse party prior to the day of hearing may serve oppos- ing affidavits.” 84 In opposition to the defendants’ motions for summary judgment scheduled for a hearing on Monday, October 7, 2019, the Special Administrators served six 83 See Munstermann, supra note 31 . 84 See Woodhouse Ford v. Laflan, 268 Neb. 722 , 687 N.W.2d 672 (2004).  - 563 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports RODRIGUEZ v. LASTING HOPE RECOVERY CTR. Cite as 308 Neb. 538 affidavits on Sunday, October 6. Thus, under the plain text of § 25-1332, the Special Administrators claim, it was error for the district court to exclude the affidavits, served the day prior to hearing, as untimely. [26,27] We need not decide whether the district court erred in excluding the Special Administrators’ affidavits because, even assuming arguendo that the district court did err, such error would not be reversible error. The admission or exclu- sion of evidence is not reversible error unless it unfairly preju- diced a substantial right of the complaining party. 85 Erroneous exclusion of evidence does not require reversal if the evidence would have been cumulative and other relevant evidence, prop- erly admitted, supports the trial court’s finding. 86 Here, besides the six affidavits offered by the Special Administrators, 18 other exhibits supported the defendants’ motions for summary judgment. A review of the Special Administrators’ six affidavits reveals that they would not have presented disputes of material fact. They are largely cumula- tive. They consist of 526 pages of witness statements com- menting on Loyd’s mental health and his actions during and after his stay at Lasting Hope. To the extent that the affidavits contain noncumulative evidence, such as expert testimony and a report from Gutnik and an affidavit from Loyd, we have reviewed that evidence and find that it does not dispute the issues of material fact discussed above in this opinion. Because the Special Administrators fail to show prejudice, a prerequisite for reversible error, their second assignment of error is without merit. VI. CONCLUSION Melissa’s death was a tragedy, and we recognize that the outcome we reach today may seem harsh to the Special Administrators. But our review of the undisputed evidence in the record has found no grounds on which Melissa’s death 85 See AVG Partners I, supra note 12. 86 See id.  - 564 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports RODRIGUEZ v. LASTING HOPE RECOVERY CTR. Cite as 308 Neb. 538 can be legally attributed to any duty owed by these defend­ ants. Therefore, we concur with the decision of the district court to deny relief to the Special Administrators. The district court’s order granting the defendants’ motions for summary judgment is affirmed. Affirmed. Funke, J., not participating. Papik, J., concurring. The majority opinion finds that defendants are entitled to summary judgment because each of the allegedly negligent acts was committed by Dr. Benton, a psychiatrist; because in Munstermann v. Alegent Health, 271 Neb. 834 , 716 N.W.2d 73 (2006), we held that a psychiatrist’s duty to take precautions with respect to potentially dangerous patients is triggered only in limited circumstances; and because there is no evidence those circumstances were present here. I agree with the major- ity that the rule we adopted in Munstermann stands as a barrier to the Special Administrators’ claims in this case, but I write separately to express my reservations about the analysis the court used to arrive at its holding in Munstermann. The suit in Munstermann arose out of a psychiatric patient’s murder of his estranged girlfriend. The personal representa- tive of the victim’s estate brought suit against a psychiatrist who had seen the patient shortly before the murder and against the hospital at which the psychiatrist worked. Notes regarding the psychiatrist’s observation of the patient indicated that the patient “‘was thinking of hurting [his] girlfriend . . . since she is hurting him.’” Id. at 837 , 716 N.W.2d at 78 . After the jury was unable to reach a verdict and the district court declared a mistrial, the defendants unsuccessfully moved for judgment notwithstanding the verdict and then appealed. The threshold issue on appeal was whether and to what extent the defendants owed the victim a legal duty. Identifying such a duty and defining the scope thereof was crucial because of the general tort rule that, in the absence of certain carefully  - 565 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports RODRIGUEZ v. LASTING HOPE RECOVERY CTR. Cite as 308 Neb. 538 defined special relationships, there is no duty to prevent a third party from causing harm to another. See Restatement (Second) of Torts, § 315(a) (1965). See, also, Bell v. Grow With Me Childcare & Preschool, 299 Neb. 136 , 907 N.W.2d 705 (2018). In our duty analysis in Munstermann, we extensively dis- cussed two statutes. One provided that licensed mental health practitioners (a category defined by statute to exclude psy- chiatrists and other physicians) could be held liable for failing to warn and provide protection from a patient’s threatened violent behavior “when the patient has communicated to the mental health practitioner a serious threat of physical violence against himself, herself, or a reasonably identifiable victim or victims,” but that there was no duty to warn or protect in any other circumstances. Neb. Rev. Stat. § 71-1 ,336 (Reissue 2003). The same statute provided that the duty described could be discharged if the practitioner made reasonable efforts to communicate the threat to the victim or victims and to a law enforcement agency. Id. The other statute, Neb. Rev. Stat. § 71-1 ,206.30 (Reissue 1996), provided that essentially the same rules applied to psychologists. We acknowledged that the statutes governing the duties of licensed mental health practitioners and psychologists did not apply to psychiatrists and that a psychiatrist’s duty was thus “still controlled by common law.” Munstermann v. Alegent Health, 271 Neb. 834 , 845, 716 N.W.2d 73 , 83 (2006). We went on to say, however, that while those statutes “‘may not be literally applicable, [they are] clearly indicative of legislatively approved public policy.’” Id. at 846 , 716 N.W.2d at 84 (quot- ing Parson v. Chizek, 201 Neb. 754 , 272 N.W.2d 48 (1978)). We then concluded that because the Legislature had made a public policy determination in these statutes that licensed men- tal health practitioners and psychologists should have a duty to warn and protect third parties from potentially violent patients but only in limited circumstances, psychiatrists should have the same limited duty. Accordingly, we held that the limited  - 566 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports RODRIGUEZ v. LASTING HOPE RECOVERY CTR. Cite as 308 Neb. 538 duties governing licensed mental health practitioners and psy- chologists also applied to psychiatrists: We hold, in accord with §§ 71-1,1206.30(1) and 71-1,336, that a psychiatrist is liable for failing to warn of and pro- tect from a patient’s threatened violent behavior, or failing to predict and warn of and protect from a patient’s vio- lent behavior, when the patient has communicated to the psychiatrist a serious threat of physical violence against himself, herself, or a reasonably identifiable victim or victims. The duty to warn of or to take reasonable precau- tions to provide protection from violent behavior shall arise only under those limited circumstances, and shall be discharged by the psychiatrist if reasonable efforts are made to communicate the threat to the victim or victims and to a law enforcement agency. Munstermann, 271 Neb. at 847 , 716 N.W.2d at 85 . We seem to have concluded in Munstermann that the spe- cific statutes the Legislature enacted concerning licensed men- tal health practitioners and psychologists demonstrated that the Legislature was generally in favor of limited duties to warn and protect for all professionals who assist individuals with mental health issues or at least all professionals sufficiently similar to licensed mental health practitioners and psychologists. We thus applied those limited duties to psychiatrists as well. I question this approach. Specifically, I question whether it is appropriate for a court to find that the text of a statute does not apply to a particular subject or circumstance, but that the statute nonetheless expresses a generalized public policy the court should strive to recognize as legally applicable to that subject or circumstance. I concede that this mode of analysis—identifying a general public policy or legislative purpose from a statute and then applying that policy or purpose more broadly than the statutory text itself—was once not uncommon as a method of statu- tory interpretation. A late-19th-century U.S. Supreme Court case, Holy Trinity Church v. United States, 143 U.S. 457 , 12  - 567 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports RODRIGUEZ v. LASTING HOPE RECOVERY CTR. Cite as 308 Neb. 538 S. Ct. 511, 36 L. Ed 226 (1892), is often cited as emblem- atic of the approach of that era. See, e.g., Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts (2012); Amy Coney Barrett, Congressional Insiders and Outsiders, 84 U. Chi. L. Rev. 2193 (2017); John F. Manning, Second-Generation Textualism, 98 Cal. L. Rev. 1287 (2010). In Holy Trinity Church, a statute prohibited assisting or encouraging the importation of foreign nationals “‘to perform labor or service of any kind in the United States.’” 143 U.S. at 458 . The question presented was whether the statute applied when a church paid for a man from England to come to New York to serve as its pastor. Another section of the statute pro- vided specific exceptions for “professional actors, artists, lec- turers, singers and domestic servants.” Id., 143 U.S. at 458-59 . Although the Court concluded that the transportation of the pastor was covered by the broad prohibition and did not fall within any of the specific exceptions, it nonetheless held the statute did not apply. Based on a number of considerations, including the legislative history and title of the statute, the Court found that the purpose of the statute was to prohibit only the importation of manual labor. The Court described its rationale this way: “[A] thing may be within the letter of the statute and yet not within the statute, because not within its spirit, nor within the intention of its makers.” Id., 143 U.S. at 459 . More recently, the Holy Trinity Church approach has come under criticism and fallen out of favor. See, e.g., Scalia & Garner, supra at 12 (“Holy Trinity is a decision that the Supreme Court stopped relying on more than two decades ago”); Barrett, supra, 84 U. Chi. L. Rev. at 2195 (“[t]he claim that it is permissible to depart from clear text in the service of congressional purpose—an approach epitomized by Church of the Holy Trinity v. United States—has fallen into dis­ repute”); Abbe R. Gluck, Imperfect Statutes, Imperfect Courts: Understanding Congress’s Plan in the Era of Unorthodox Lawmaking, 129 Harv. L. Rev. 62 , 90 (2015) (“Church of  - 568 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports RODRIGUEZ v. LASTING HOPE RECOVERY CTR. Cite as 308 Neb. 538 the Holy Trinity v. United States—oft-maligned for its state- ment that statutory ‘spirit’ may trump the plain ‘letter of the statute’—is long since dead”); Manning, supra, 98 Cal. L. Rev. at 1313 (opining that Holy Trinity Church no longer falls within “the mainstream of the [U.S. Supreme] Court’s jurisprudence”). In my view, the Holy Trinity Church approach is difficult to defend. It is undoubtedly true that statutes are passed to achieve policies and purposes. They do so, however, through legislatively selected means. And if a court can identify and enforce what it believes to be the general policy behind leg- islation rather than the details actually enacted in the text, it is selecting its own means rather than respecting those chosen by the legislative branch. See, e.g., MCI Telecommunications Corp. v. American Telephone & Telegraph Co., 512 U.S. 218 , 231 n.4, 114 S. Ct. 2223 , 129 L. Ed. 2d 182 (1994) (observ- ing that courts are “bound, not only by the ultimate purposes [a legislature] has selected, but by the means it has deemed appropriate, and prescribed, for the pursuit of those purposes”); Frank H. Easterbrook, Statutes’ Domains, 50 U. Chi. L. Rev. 533 (1983) (arguing that adherence to text respects legislative choice of means). The elevation of a judicially recognized general policy over specifically enacted legislative text is particularly problem- atic because legislation is often the product of compromise. If courts brush aside the details of the text in favor of what they believe to be the general purpose of the legislation, prior compromises will be disrespected and future compromises will be more difficult to reach. See Henson v. Santander Consumer USA Inc., ___ U.S. ___, 137 S. Ct. 1718 , 1725, 198 L. Ed. 2d 177 (2017) (quoting Rodriguez v. United States, 480 U.S. 522 , 107 S. Ct. 1391 , 94 L. Ed. 2d 533 (1987) (concluding it is mistaken to assume that anything that fur- thers “‘statute’s primary objective must be the law’” because “[l]egislation is, after all, the art of compromise, the limitations expressed in statutory terms often the price of passage . . .”); John F. Manning, What Divides Textualists From Purposivists,  - 569 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports RODRIGUEZ v. LASTING HOPE RECOVERY CTR. Cite as 308 Neb. 538 106 Colum. L. Rev. 70 , 96 (2006) (arguing that judicial adher- ence to semantic text “is essential if one wishes legislators to be able to strike reliable bargains”). These considerations and others lead me to question our conclusion in Munstermann v. Alegent Health, 271 Neb. 834 , 716 N.W.2d 73 (2006), that there was a legislatively approved policy requiring that psychiatrists have the same limited duty to warn and protect that the Legislature applied to other profes- sionals via specific statutes. The Legislature did enact limited duties for some professionals, but whatever policy it hoped to achieve through those statutes, they did not cover psychia- trists. Perhaps that decision was intentional. Perhaps it was ­inadvertent. In either case, I do not understand the basis on which we could conclude that the Legislature had directed that psychiatrists have the same duty as these other professionals. If anything, it seems to me one of our oft-used principles of statutory interpretation would counsel in favor of the oppo- site conclusion. See Rogers v. Jack’s Supper Club, 304 Neb. 605 , 612, 935 N.W.2d 754 , 761 (2019) (“[i]t is not within the province of the courts to read meaning into a statute that is not there or to read anything direct and plain out of a statute”). See, also, Scalia & Garner, supra at 93 (discussing “Omitted- Case Canon” requiring that matters not covered by a statute are to be treated as not covered). To be clear, I recognize that Munstermann did not find that the statutes covering licensed mental health practitioners and psychologists literally extended to psychiatrists, but, rather, concluded those statutes should apply to psychiatrists in the course of determining psychiatrists’ common-law duties. I see little difference, however, between finding that the meaning of a statute goes beyond its text in the course of interpreting a statute and finding that a legislatively approved public policy can be found in a statute not applicable to the subject at hand in the course of common-law analysis. But while I have reservations about the path we took to arrive at our holding in Munstermann, we have continued to  - 570 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports RODRIGUEZ v. LASTING HOPE RECOVERY CTR. Cite as 308 Neb. 538 rely on that holding in subsequent cases, no party in this case asks us to reconsider the portion of the decision extending the limited duties applicable to licensed mental health practitioners and psychologists to psychiatrists, and, if such an argument were made, it would have to reckon with the doctrine of legis- lative acquiescence. I also do not disagree with the majority’s conclusion that the Special Administrators’ theory of liability is inconsistent with the rule adopted in Munstermann, and thus, I concur in the decision affirming summary judgment. For the reasons set forth herein, however, I would be reluctant in a future case to conclude that a statute is indicative of a legisla- tively approved public policy on a given subject if the text of that statute does not apply to that subject. Stacy, J., joins.

2021-03-19 05:08:51.681475+00

https://www.nebraska.gov/apps-courts-epub/public/viewOpinion?docId=N00007646PUB

Nebraska Supreme Court Online Library www.nebraska.gov/apps-courts-epub/ 03/19/2021 12:08 AM CDT - 571 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports GONZALES v. NEBRASKA PEDIATRIC PRACTICE Cite as 308 Neb. 571 Rosa Gonzales and Javier Rojas, individually and as parents and next friends of Joaquin Rojas, a minor, appellants, v. Nebraska Pediatric Practice, Inc., and Corey S. Joekel, M.D., appellees. ___ N.W.2d ___ Filed March 5, 2021. No. S-20-253. 1. Courts: Expert Witnesses. A trial court acts as a gatekeeper to ensure the evidentiary relevance and reliability of an expert’s opinion. 2. ____: ____. An evaluation under Schafersman v. Agland Coop, 262 Neb. 215 , 631 N.W.2d 862 (2001), generally consists of four factors, includ- ing a determination of (1) whether the witness is qualified to testify as an expert, (2) whether the witness’ testimony is supported by scientifi- cally valid and reliable methodology or reasoning, (3) whether the rea- soning or methodology has been properly applied to the facts in issue, and (4) whether the testimony’s probative value is not substantially outweighed by danger of unfair prejudice. 3. Judgments: Appeal and Error. For purposes of a law-of-the-case analysis, construction of an appellate court’s prior opinion is determined by an appellate court as a matter of law. 4. ____: ____. An appellate court reviews matters of law de novo, indepen- dently of the lower court’s determination. 5. Summary Judgment: Appeal and Error. An appellate court reviews a grant of summary judgment de novo, viewing the record in the light most favorable to the nonmoving party and drawing all reasonable infer- ences in that party’s favor. 6. ____: ____. An appellate court affirms a grant of summary judgment if the pleadings and admitted evidence show that there is no genuine issue as to any material facts or as to the ultimate inferences that may be drawn from the facts and that the moving party is entitled to judgment as a matter of law.  - 572 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports GONZALES v. NEBRASKA PEDIATRIC PRACTICE Cite as 308 Neb. 571 7. Actions: Appeal and Error. Law of the case is a procedural doctrine that bars reconsideration of the same or similar issues at successive stages of the same suit or prosecution. 8. ____: ____. The law-of-the-case doctrine reflects the principle that to promote finality and to protect parties’ settled expectations, an issue liti- gated and terminally decided in one stage of a case should not be later resuscitated at a later stage. 9. Appeal and Error. Under the law-of-the-case doctrine, the holdings of an appellate court on questions presented to it for review become the law of the case. 10. ____. Under the law-of-the-case doctrine, unless the facts presented on remand are shown by the petitioner to be materially and substantially different, an appellate court’s prior holdings conclusively settle all mat- ters ruled upon, either expressly or by necessary implication. 11. Pretrial Procedure: Expert Witnesses. An objection under Schafersman v. Agland Coop, 262 Neb. 215 , 631 N.W.2d 862 (2001), must take the form of a concise pretrial motion. 12. ____: ____. In terms of the factors under Schafersman v. Agland Coop, 262 Neb. 215 , 631 N.W.2d 862 (2001), a motion to exclude should iden- tify what is believed to be lacking with respect to the expert testimony at issue. 13. ____: ____. A motion to exclude expert testimony should be stated with enough specificity as to a particular factor that the court understands what is being challenged and can accordingly determine the necessity and extent of any pretrial proceedings. 14. Expert Witnesses: Proof. It is the objecting party’s burden to raise an adequately specific objection to expert testimony. 15. Expert Witnesses: Waiver. A failure to make an adequately specific objection to expert testimony will result in a waiver of the right to object on that basis. 16. Appeal and Error. For purposes of a law-of-the-case analysis, it is enough for an appellate court to recognize the scope of issues conclu- sively settled in the appellate court’s prior opinion. 17. ____. An appellate court interprets the scope of an appellate court’s prior opinion as a matter of law without regard to the parties’ or even the prior appellate court’s subjective interpretations. 18. ____. An appellate court is not obligated to engage in an analysis that is not necessary to adjudicate the case and controversy before it. Appeal from the District Court for Douglas County: James T. Gleason, Judge. Reversed and remanded for further proceedings.  - 573 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports GONZALES v. NEBRASKA PEDIATRIC PRACTICE Cite as 308 Neb. 571 Greg Garland, of Garland Medmal, L.L.C., Tara DeCamp, of DeCamp Law, P.C., L.L.O., and Kathy Pate Knickrehm for appellants. Sarah M. Dempsey, Patrick G. Vipond, and Michael L. Storey, of Lamson, Dugan & Murray, L.L.P., for appellees. Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ. Heavican, C.J. I. INTRODUCTION Appellants Rosa Gonzales and Javier Rojas are the parents of Joaquin Rojas, a minor who suffered a brain injury. Alleging that Joaquin’s brain injury was caused by Dr. Corey Joekel, M.D., when he misdiagnosed and failed to treat Joaquin’s con- dition, appellants brought a malpractice action against appel- lees Joekel and his employer, Nebraska Pediatric Practice, Inc. Based on appellees’ objection, the district court found the expert testimony of appellants’ key witness inadmissible. After excluding that testimony, the district court granted summary judgment to appellees. For the reasons set forth herein, we reverse the district court’s order granting summary judgment and remand the cause for further proceedings consistent with this opinion. II. BACKGROUND 1. Complaint On August 5, 2012, Joaquin, who was then 5 years old, was exhibiting symptoms consistent with mononucleosis, a com- mon condition frequently caused by the Epstein-Barr virus (EBV). Gonzales brought Joaquin to the emergency depart- ment at Children’s Hospital and Medical Center (CHMC) in Omaha, Nebraska. After an examination, an emergency depart- ment physician diagnosed Joaquin with mononucleosis and discharged him. Over the next 2 days, Joaquin continued to exhibit many of the same symptoms. Concerned that some of Joaquin’s  - 574 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports GONZALES v. NEBRASKA PEDIATRIC PRACTICE Cite as 308 Neb. 571 symptoms might be worsening, Gonzales returned Joaquin to the emergency department at CHMC the morning of August 7, 2012. Joekel, the attending emergency department physician, examined Joaquin and diagnosed him with mononucleosis. Joekel ordered Joaquin discharged at 8:44 a.m. Approximately 31⁄2 hours later, Joaquin began to seize. Gonzales called the 911 emergency dispatch system, and Joaquin was transported by ambulance to the University of Nebraska Medical Center (UNMC) in Omaha. At 12:39 p.m., Joaquin was admitted to the emergency department at UNMC. He was unresponsive and exhibiting decreased respirations. After UNMC staff administered antiepileptic medication, Joaquin began to gradually regain consciousness. Joaquin was diagnosed with EBV meningoencephalitis, a serious infection of the brain and surrounding tissue that can arise as a compli- cation of mononucleosis. Joaquin also experienced brain swelling and oxygen loss. On August 10, 2012, surgeons at UNMC performed a decom- pressive craniectomy, removing sections of Joaquin’s skull to relieve pressure on his brain. On September 5, UNMC surgeons performed a cranioplasty to replace the sections of Joaquin’s skull that they had removed. On September 10, 2012, Joaquin was transferred to a reha- bilitation center for physical and speech therapy. He was discharged home on October 13. Joaquin’s parents allege that when Joaquin then attended school, he displayed symptoms of a brain injury, including learning deficits that required his placement in special education classes. On August 1, 2014, appellants filed a complaint in the district court for Douglas County, asserting that Joaquin’s injuries were attributable to Joekel’s professional negligence. On behalf of themselves and Joaquin, appellants sought dam- ages from appellees under the Nebraska Hospital-Medical Liability Act. 1 1 Neb. Rev. Stat. §§ 44-2801 to 44-2855 (Reissue 2010).  - 575 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports GONZALES v. NEBRASKA PEDIATRIC PRACTICE Cite as 308 Neb. 571 2. First Appeal As the case progressed toward trial, a dispute arose concern- ing the admissibility of certain expert testimony. Pursuant to Neb. Rev. Stat. § 27-702 (Reissue 2016), appellants moved to admit the testimony of Dr. Todd Lawrence, a family and emergency room physician, “on all elements of proof required to prove a prima facie case of medical malpractice.” Lawrence planned to opine that Joaquin’s medical outcome would have been better if, on August 7, 2012, Joekel would not have mis- diagnosed Joaquin and failed to admit him for further treatment at CHMC. Appellees moved to prevent Lawrence from testifying to this opinion. Their basis for objecting to Lawrence’s testimony was, in part, Schafersman v. Agland Coop (Schafersman I ), 2 the case in which we adopted the framework set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 3 and its progeny 4 for evaluating whether to admit expert testimony. [1,2] Under our Schafersman I jurisprudence, the trial court acts as a gatekeeper to ensure the evidentiary relevance and reliability of an expert’s opinion. 5 A Schafersman I evalua- tion generally consists of four factors, including a determi­ nation of (1) whether the witness is qualified to testify as an expert, (2) whether the witness’ testimony is supported by scientifically valid and reliable methodology or reasoning, (3) whether the reasoning or methodology has been properly applied to the facts in issue, and (4) whether the testimony’s 2 Schafersman v. Agland Coop, 262 Neb. 215 , 631 N.W.2d 862 (2001). 3 Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 , 113 S. Ct. 2786 , 125 L. Ed. 2d 469 (1993). 4 See, e.g., Kumho Tire Co. v. Carmichael, 526 U.S. 137 , 119 S. Ct. 1167 , 143 L. Ed. 2d 238 (1999); General Electric Co. v. Joiner, 522 U.S. 136 , 118 S. Ct. 512 , 139 L. Ed. 2d 508 (1997). 5 See Schafersman I, supra note 2 . See, also, State v. Simmer, 304 Neb. 369 , 935 N.W.2d 167 (2019).  - 576 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports GONZALES v. NEBRASKA PEDIATRIC PRACTICE Cite as 308 Neb. 571 probative value is not substantially outweighed by danger of unfair prejudice. 6 Appellees also moved for summary judgment, claiming that without Lawrence’s testimony, appellants could not prove cau- sation, an essential element in a medical malpractice case. 7 After an evidentiary hearing, the district court agreed with appellees that Lawrence’s testimony was inadmissible. The court excluded the testimony on two bases: first, that under Schafersman I, Lawrence was unqualified to testify about cau- sation as an expert; and second, that under our line of cases concerning the relevance of expert testimony, 8 Lawrence’s opinions amounted to inadmissible loss-of-chance testimony. In a separate order, the district court granted appellees’ motion for summary judgment. On the first appeal of this case, the Nebraska Court of Appeals affirmed in part, and in part reversed and remanded for further proceedings. 9 All three of the panel’s judges agreed that a portion of Lawrence’s opinions amounted to loss-of- chance testimony, “which, in Nebraska, is insufficient to estab- lish causation.” 10 Yet as to the portion of Lawrence’s opinions that the court found was not loss-of-chance testimony, the panel divided on whether Lawrence was qualified to render such opinions. After a thorough analysis applying the relevant Schafersman I factors, a majority of the Court of Appeals concluded that 6 See Epp v. Lauby, 271 Neb. 640 , 715 N.W.2d 501 (2006). See, also, Simmer, supra note 5 . 7 See Ewers v. Saunders County, 298 Neb. 944 , 906 N.W.2d 653 (2018). 8 See, e.g., Cohan v. Medical Imaging Consultants, 297 Neb. 111 , 900 N.W.2d 732 (2017), modified on denial of rehearing, 297 Neb. 568 , 902 N.W.2d 98 ; Richardson v. Children’s Hosp., 280 Neb. 396 , 787 N.W.2d 235 (2010); Rankin v. Stetson, 275 Neb. 775 , 749 N.W.2d 460 (2008). 9 See Gonzales v. Nebraska Pediatric Practice, 26 Neb. App. 764 , 923 N.W.2d 445 (2019). 10 Id. at 786 , 923 N.W.2d at 461.  - 577 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports GONZALES v. NEBRASKA PEDIATRIC PRACTICE Cite as 308 Neb. 571 Lawrence was qualified and that therefore, the district court had abused its discretion in excluding Lawrence’s testimony, 11 with one judge concurring in part, and in part dissenting. 12 The Court of Appeals then remanded the cause “for further pro- ceedings in compliance with [its] opinion.” 13 3. Orders on Remand On remand, appellees renewed their objection that Lawrence’s testimony was inadmissible under Schafersman I. They moved to amend the scheduling order to name an addi- tional expert witness, Dr. Daniel Bonthius, a neurologist and pediatrician who specialized in viral encephalitis. Then, supported by live video testimony from Bonthius, affidavits from two other physicians who specialized in pedi- atric epilepsy and infectious disease, and three articles from medical journals, appellees challenged Lawrence’s testimony under the second and third Schafersman I factors. To wit, appellees contended that Lawrence’s testimony would depend on invalid “methods or scientific knowledge” and would not properly apply valid methods or reasoning to the facts in issue. Further, on the condition that their motion to exclude Lawrence’s testimony was granted, appellees moved again for summary judgment. At a hearing on appellees’ motions, appellants objected to the form of Bonthius’ testimony. But because appellees had provided nearly 4 months’ notice of their intent to offer Bonthius’ testimony by live video, and because appellants had only begun objecting to Bonthius’ testimony in that form on the day before the hearing, the district court concluded that appellants had “implicitly agreed” to such testimony by their conduct. The district court thus received Bonthius’ 11 See Gonzales, supra note 9 . 12 But see id. (Bishop, Judge, concurring in part, and in part dissenting). 13 Id. at 799, 923 N.W.2d at 468.  - 578 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports GONZALES v. NEBRASKA PEDIATRIC PRACTICE Cite as 308 Neb. 571 testimony by live video pursuant to Neb. Rev. Stat. § 24-734 (4) (Reissue 2016). 14 The district court then granted appellees’ motion to exclude Lawrence’s testimony from trial. Despite finding that Lawrence was qualified as a physician and entitled to give “medical opinions,” the district court found that his testimony “with regard to the causation of seizures and the extent and longevity thereof are not within his skill set and[,] based on the testimony of [Bonthius], are not consistent with current medical knowledge in the area.” Accordingly, the district court ordered that “causation opinions regarding any relation- ship between [EBV meningoencephalitis] and seizures offered by Dr. Lawrence must be stricken.” Because appellants’ argu- ment for causation depended for support on Lawrence’s tes- timony, the district court also granted summary judgment to appellees. Appellants filed a timely notice of appeal. 15 While the appeal was pending, appellees requested a supplemental bill of exceptions containing the records from two hearings. The court reporter averred that she was unable to produce a record for one of the hearings because no stenographic record had been made. Appellees moved for an order nunc pro tunc to augment the bill of exceptions with an affidavit from their attorney that had allegedly been received at that hearing but not included in the record. Finding that the affidavit had been properly received as evidence but “inadverten[tly]” left out of the record due to “clerical error” by the court reporter, the district court granted appellees’ motion and ordered the affidavit included in the bill of exceptions. We moved the appeal to our docket. 16 14 See, also, 2020 Neb. Laws, L.B. 912 (codified as § 24-734 (Cum. Supp. 2020), amending § 24-734(4) after relevant time in this case). 15 See Neb. Rev. Stat. § 25-1912 (Cum. Supp. 2020). 16 See Neb. Rev. Stat. § 24-1106 (3) (Cum. Supp. 2020).  - 579 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports GONZALES v. NEBRASKA PEDIATRIC PRACTICE Cite as 308 Neb. 571 III. ASSIGNMENTS OF ERROR Appellants assign three errors, which we restate as fol- lows: (1) that the district court was precluded, under the law of the case, from excluding the testimony of their expert, Lawrence; (2) that the district court violated the law of the case, Schafersman I, and § 24-734(4) in admitting the testi- mony of appellees’ experts; and (3) that the district court erred in granting summary judgment. IV. STANDARD OF REVIEW [3,4] For purposes of a law-of-the-case analysis, construc- tion of an appellate court’s prior opinion is determined by an appellate court as a matter of law. 17 An appellate court reviews matters of law de novo, independently of the lower court’s determination. 18 [5,6] An appellate court reviews a grant of summary judg- ment de novo, viewing the record in the light most favorable to the nonmoving party and drawing all reasonable inferences in that party’s favor. 19 An appellate court affirms a grant of summary judgment if the pleadings and admitted evidence show that there is no genuine issue as to any material facts or as to the ultimate inferences that may be drawn from the facts and that the moving party is entitled to judgment as a matter of law. 20 V. ANALYSIS 1. Preclusion Under Law of Case We begin our analysis by considering the district court’s decision to exclude Lawrence’s testimony. Appellants contend that the Court of Appeals’ earlier opinion in this case con- clusively settled that Lawrence’s testimony was admissible. 17 See TransCanada Keystone Pipeline v. Tanderup, 305 Neb. 493 , 941 N.W.2d 145 (2020). 18 See id. 19 Kaiser v. Allstate Indemnity Co., 307 Neb. 562 , 949 N.W.2d 787 (2020). 20 Id.  - 580 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports GONZALES v. NEBRASKA PEDIATRIC PRACTICE Cite as 308 Neb. 571 Thus, they allege, the law of the case precluded appellees’ renewed Schafersman I objection on remand to Lawrence’s testimony. [7,8] Law of the case is a procedural doctrine that bars reconsideration of the same or similar issues at successive stages of the same suit or prosecution. 21 The doctrine reflects the principle that to promote finality and to protect parties’ settled expectations, an issue litigated and terminally decided in one stage of a case should not be later resuscitated at a later stage. 22 [9,10] Under the law-of-the-case doctrine, the holdings of an appellate court on questions presented to it for review become the law of the case. 23 Thereafter, unless the facts presented on remand are shown by the petitioner to be materially and sub- stantially different, the appellate court’s holdings conclusively settle all matters ruled upon, either expressly or by neces- sary implication. 24 Here, we agree with appellants that the admissibility of Lawrence’s testimony was conclusively settled by the Court of Appeals and that therefore, appellees’ renewed objec- tion on remand to that testimony was precluded. Among the questions presented to the Court of Appeals for review were whether Lawrence’s opinions had met the requirements for reliability and relevance under Schafersman I to be admis- sible as expert testimony “on the subject of causation of Joaquin’s injuries.” 25 After thoroughly analyzing Lawrence’s testimony against the relevant factors, the Court of Appeals answered in the affirmative: 21 See State v. Price, 306 Neb. 38 , 944 N.W.2d 279 (2020). 22 See Parks v. Hy-Vee, 307 Neb. 927 , 951 N.W.2d 504 (2020). See, also, State v. Thompson, 69 Neb. 157 , 95 N.W. 47 (1903). 23 See Price, supra note 21 . 24 See id. See, also, Carpenter v. Cullan, 254 Neb. 925 , 581 N.W.2d 72 (1998). 25 Gonzales, supra note 9 , 26 Neb. App. at 783, 923 N.W.2d at 460.  - 581 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports GONZALES v. NEBRASKA PEDIATRIC PRACTICE Cite as 308 Neb. 571 Dr. Lawrence clearly possesses special knowledge respecting the causation of brain injury and scarring from seizures superior to that of persons in general as to make his formation of a judgment a fact of probative value. . . . If [a]ppellees have more specialized experts and evi- dence to attack Dr. Lawrence’s conclusions, [a]ppellees remain capable of cross-examining Dr. Lawrence and bringing their own experts and evidence to counter his opinions. However, this becomes a question of fact for the fact finder. 26 Thus, the Court of Appeals held that the district court had “abused its discretion in determining that Dr. Lawrence was unqualified under § 27-702 to testify on causation as to the injuries Joaquin suffered due to Dr. Joekel’s failure to hospi- talize, treat, and control Joaquin’s seizure, the sole causation opinion offered by Dr. Lawrence . . . .” 27 That holding by the Court of Appeals established the law of the case. It conclusively settled that under Schafersman I, Lawrence’s testimony was admissible to prove causation in this case. Because Bonthius’ testimony is nothing more than a new opinion concerning facts that already existed before remand, it does not qualify as a material and substantial difference in the facts underlying the Court of Appeals’ decision such that it should displace the application of the law-of-the-case doctrine. 28 And unlike expert testimony in a retrial, which we have said is not necessarily precluded by foundational chal- lenges raised before, 29 Lawrence’s opinions on remand are essentially the same as those the Court of Appeals consid- ered previously. At the least, appellees have failed to show 26 Id. at 794, 923 N.W.2d at 465-66. 27 Id. at 795, 923 N.W.2d at 466. 28 See Talle v. Nebraska Dept. of Soc. Servs., 253 Neb. 823 , 572 N.W.2d 790 (1998). 29 See State v. Davlin, 272 Neb. 139 , 719 N.W.2d 243 (2006).  - 582 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports GONZALES v. NEBRASKA PEDIATRIC PRACTICE Cite as 308 Neb. 571 a material and substantial difference. 30 Therefore, under the Court of Appeals’ opinion, appellees were precluded from renewing, on remand, their Schafersman I-based objections to Lawrence’s testimony. Appellees urge us to parse the scope of the Court of Appeals’ opinion more narrowly. By appellees’ reading, the opinion settled only one issue under Schafersman I—Lawrence’s quali- fications—and did not reach the separate Schafersman I issues of whether Lawrence’s testimony was supported by scientifi- cally valid methodology and whether it properly applied such methodology to the facts in issue. Appellees cite language in the Court of Appeals’ opinion that they claim “invited” objections based on these grounds after remand. 31 The Court of Appeals stated: [W]e express no opinion as to whether [Dr. Lawrence’s] theory or methodology supporting the opinion are valid, whether the theory or methodology were properly applied to the facts in this case, or whether Dr. Lawrence’s tes- timony is more probative or prejudicial. To the extent [a]ppellees were challenging those factors, those com- ponents of the Daubert/Schafersman analysis were not addressed by the district court in its order. 32 But while we agree that by its express acknowledgment the Court of Appeals elected not to separately analyze those Schafersman I factors, we disagree that the factors remained subject to challenge on remand. [11-15] As the Court of Appeals noted elsewhere in its opin- ion, a Schafersman I objection must take the form of a concise pretrial motion. 33 Such motion should identify, in terms of the Schafersman I factors, what is believed to be lacking with 30 See Carpenter, supra note 24 . 31 Brief for appellees at 27. 32 Gonzales, supra note 9 , 26 Neb. App. at 795, 923 N.W.2d at 466. 33 See Gonzales, supra note 9 . See, also, Simmer, supra note 5 .  - 583 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports GONZALES v. NEBRASKA PEDIATRIC PRACTICE Cite as 308 Neb. 571 respect to the expert testimony at issue. 34 It should be stated with enough specificity as to a particular factor that the court understands what is being challenged and can accordingly determine the necessity and extent of any pretrial proceed- ings. 35 It is the objecting party’s burden to raise an adequately specific objection to expert testimony. 36 Because this specific- ity requirement is necessary to protect judicial economy and resources, 37 a failure to make an adequately specific objection to expert testimony will result in a waiver of the right to chal- lenge that factor. 38 Considering this established waiver rule, we are satisfied that it explains why the Court of Appeals declined to separately analyze the Schafersman I factors raised in appellees’ renewed objection on remand. 39 After stating the waiver rule, the Court of Appeals found: It is unclear from the record whether [a]ppellees’ [Schafersman I] challenge to Dr. Lawrence was limited to his qualifications to testify or whether [a]ppellees were extending their challenge to his theory or methodology and/or his application of the facts to his theory or meth- odology. See brief for appellees at 28 (arguing that Dr. Lawrence’s opinions “were not sufficiently reliable”). We note the Nebraska Supreme Court’s admonition that a Daubert/Schafersman challenge should specifically iden- tify which of the factors is believed to be lacking. We also note this record is somewhat devoid of analysis as it relates to those other specific factors. 40 34 See Simmer, supra note 5 . 35 See In re Interest of Christopher T., 281 Neb. 1008 , 801 N.W.2d 243 (2011). 36 See id. 37 State v. Herrera, 289 Neb. 575 , 856 N.W.2d 310 (2014). 38 See, e.g., Simmer, supra note 5 ; In re Interest of Christopher T., supra note 35. 39 Gonzales, supra note 9 . 40 Id. at 789, 923 N.W.2d at 463.  - 584 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports GONZALES v. NEBRASKA PEDIATRIC PRACTICE Cite as 308 Neb. 571 By finding “unclear” appellees’ other Schafersman I­-based objections in the record, the Court of Appeals determined that the objections had not been raised with adequate specificity. 41 According to the Court of Appeals, appellees’ passing charac- terization of Lawrence’s testimony as “‘not sufficiently reli- able’” was not an adequately specific objection. 42 We thus read the Court of Appeals’ opinion as deciding that to the extent appellees had wished to challenge Lawrence’s testimony on Schafersman I grounds beyond his alleged lack of qualifica- tions, they had waived those challenges. [16,17] We do not judge the merits of that decision here, because for purposes of our law-of-the-case analysis, it is enough for us to recognize the scope of issues conclusively settled in the Court of Appeals’ opinion. 43 We interpret its scope as a matter of law without regard to the parties’ or even the Court of Appeals’ subjective interpretations. 44 It is that de novo interpretation of the opinion that leads us to conclude the Court of Appeals applied our waiver rule, thus precluding fur- ther challenges to Lawrence’s testimony based not only on his qualifications but also on all other Schafersman I factors. Our waiver rule may not have been the Court of Appeals’ only justification for declining to analyze the Schafersman I factors raised in appellees’ renewed objection on remand. The Court of Appeals also noted that under principles of judicial restraint, it could avoid analyzing those factors because the district court had not analyzed them, grounding its decision instead “solely on the basis of [Lawrence’s] qualification to give such opinion.” 45 But regardless of how many justifications the Court of Appeals had for not analyzing the Schafersman I factors 41 See id. 42 See id. 43 See Price, supra note 21 . 44 See, Bayne v. Bayne, 302 Neb. 858 , 925 N.W.2d 687 (2019). See, also, Kerndt v. Ronan, 236 Neb. 26 , 458 N.W.2d 466 (1990). 45 Gonzales, supra note 9 , 26 Neb. App. at 789, 923 N.W.2d at 463.  - 585 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports GONZALES v. NEBRASKA PEDIATRIC PRACTICE Cite as 308 Neb. 571 raised in appellees’ renewed objection on remand, what matters now is our finding that the waiver rule was among those jus- tifications. By determining that appellees’ ­qualification-based objection lacked merit, in part, and that their other Schafersman I objections had been waived, the Court of Appeals conclu- sively settled all of appellees’ potential Schafersman I-based objections to Lawrence’s testimony. We consequently disagree with appellees’ parsing of the Court of Appeals’ opinion. Contrary to appellees’ ­interpretation, the opinion was not an invitation to relitigate the admissibility of Lawrence’s testimony. Nor was appellees’ renewed objec- tion fair game on remand. Under our de novo interpretation, the Court of Appeals’ opinion ended the parties’ pretrial dispute concerning the admissibility of Lawrence’s testimony. As the Court of Appeals observed, “[i]f [a]ppellees have more specialized experts and evidence to attack Dr. Lawrence’s conclusions, [a]ppellees remain capable [at trial] of cross- examining Dr. Lawrence and bringing their own experts and evidence to counter his opinions.” 46 But for purposes of this Schafersman I motion to exclude, appellees’ renewed objection on remand to Lawrence’s testimony was precluded under the law of the case. Consistent with appellants’ first assignment of error, we find that the district court’s order excluding Lawrence’s testimony was in error. 2. Summary Judgment Appellants also raise various arguments for why the district court erred in admitting the testimony of appellees’ experts. [18] We need not reach those arguments here because an appellate court is not obligated to engage in an analysis that is not necessary to adjudicate the case and controversy before it. 47 Summary judgment in this case depended on ­appellants’ 46 Id. at 794, 923 N.W.2d at 466. 47 See George Clift Enters. v. Oshkosh Feedyard Corp., 306 Neb. 775 , 947 N.W.2d 510 (2020).  - 586 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports GONZALES v. NEBRASKA PEDIATRIC PRACTICE Cite as 308 Neb. 571 failure to raise a genuine dispute as to the causation of Joaquin’s injury, an essential element of their medical mal- practice claim. 48 But because we reverse the order excluding Lawrence’s testimony, that testimony is properly in the record and raises a genuine dispute about causation, regardless of appellees’ evidence. Summary judgment was unwarranted. VI. CONCLUSION The district court’s order excluding Lawrence’s testimony was in error. We reverse the district court’s grant of sum- mary judgment and remand the cause for further proceedings consist­ent with this opinion. Reversed and remanded for further proceedings. 48 See Ewers, supra note 7 .

2020-12-03 21:00:19.267791+00

https://www2.ca3.uscourts.gov/opinarch/192513np.pdf

NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________ No. 19-2513 _____________ A.B., By and Through His Parents and Natural Guardians, F.B. and N.V., of Effort, PA, Appellants v. PLEASANT VALLEY SCHOOL DISTRICT ______________ On Appeal from United States District Court for the Middle District of Pennsylvania (D. C. Civil No. 3-17-cv-02311) District Court Judge: Honorable A. Richard Caputo ______________ Submitted Pursuant to Third Circuit L.A.R. 34.1(a) on September 22, 2020 ______________ Before: SMITH, Chief Judge, McKEE and JORDAN, Circuit Judges (Opinion filed: December 3, 2020) _______________________ OPINION* _______________________ * This disposition is not an opinion of the full Court and under I.O.P. 5.7 does not constitute binding precedent. McKEE, Circuit Judge. The parents and natural guardians of A.B. appeal the district court’s partial denial of attorney’s fees incurred in obtaining relief from the defendant school district based upon their claim that the district denied A.B. a free and appropriate public education as required by the Individuals with Disabilities Education Act1 and § 504 of the Rehabilitation Act of 1973.2 For the reasons that follow, we will affirm the district court.3 I. We review the reasonableness of an award of attorneys’ fees for an abuse of discretion.4 An abuse of discretion occurs when the record shows that “no reasonable person would adopt the district court’s view.”5 Whether the district court applied the proper standards or procedures is a question of law subject to de novo review.6 The district court’s factual findings, including the “marketplace billing rate,” are reviewed for clear error.7 We may not “upset a trial court’s exercise of discretion on the basis of a visceral disagreement with the lower court’s decision,” nor may we “reverse where the trial court employs correct standards and procedures, and makes findings of fact not clearly erroneous.”8 1 20 U.S.C. § 1400 et seq. 2 29 U.S.C. § 794 . 3 The district court had jurisdiction over this action pursuant to 28 U.S.C. § 1331 and 20 U.S.C. § 1415 (i)(3)(a). We have appellate jurisdiction pursuant to 28 U.S.C. § 1291 . 4 Rode v. Dellarciprete, 892 F.2d 1177 , 1182 (3d Cir. 1990). 5 Id. 6 Student Pub. Interest Research Grp. of N.J., Inc. v. AT & T Bell Labs., 842 F.2d 1436 , 1442 n.3 (3d Cir. 1988). 7 Washington v. Phila. Cty. Court of Common Pleas, 89 F.3d 1031 , 1035 (3d Cir. 1996). 8 Id. (internal citations omitted). 2  Appellants, as the prevailing parties, had to prove that the “request for attorney’s fees [wa]s reasonable.”9 Thus, they had to “submit evidence supporting the hours worked and rates claimed.”10 They needed to show, “in addition to [their attorneys’] own affidavits,” that the requested hourly rates represent the prevailing market rates in the relevant community.11 The district court did not err in concluding that Appellants did not make a prima facie showing that the rates requested represented the market rates.12 The only evidence Appellants submitted in support of this claim was their own testimony and affidavits. They failed to submit the requisite additional evidence, such as evidence that the rates requested are commonly awarded in similar cases in the area.13 Moreover, the party opposing the attorneys fee award may “challenge, by affidavit or brief . . . the reasonableness of the requested fee.”14 If the “hourly rates are disputed, the district court must conduct a hearing to determine the reasonable market rates.”15 Even if Appellants had presented a prima facie case, Appellees properly disputed the fee request. Accordingly, the district court held a hearing. Appellants argue that, having held a hearing, the court erred in limiting the relevant market to Northeastern Pennsylvania and improperly based the fee award on a 9 Rode, 892 F.2d at 1183 . 10 Id. (citing Hensley v. Eckerhart, 461 U.S. 424 , 433 (1983)). 11 Washington, 89 F.3d at 1035 (internal citations omitted). 12 See App. 14 (“[Appellants] failed to make a prima facie showing of the prevailing market rate.”). 13 See Borrell v. Bloomsburg Univ., 207 F. Supp. 3d 454 , 510 (M.D. Pa. 2016). 14 Rode, 892 F.2d at 1183 . 15 Smith v. Phila. Hous. Auth., 107 F.3d 223 , 225 (3d. Cir. 1997). 3 “generalized sense of what is usual and proper.”16 Additionally, according to Appellants, after the court determined the market rates, it erroneously reduced the lodestar used in determining the appropriate fee. “[T]he relevant rate is the prevailing rate in the forum of the litigation” unless “the special expertise of counsel from a distant district is shown” or “local counsel are unwilling to handle the case.”17 Appellants’ lead attorney practices in Northeastern Pennsylvania. That is also where the dispute arose and the forum for the litigation. Although Appellants claim that the paucity of special education lawyers able to take this case in Northeastern Pennsylvania required expanding the relevant market,18 the district court concluded that one of Appellants’ own submissions refuted that argument. Accordingly, the court’s decision to limit the relevant market to Northeastern Pennsylvania was not clear error. The court also appropriately relied on record evidence to set the fee rates lower than the rates Appellants requested. Only one of Appellants’ submissions addressed the “Northeastern and Central Pennsylvania” market, but the district court concluded that this verification was “appropriately contested by the [school] [d]istrict’s submissions.”19 Therefore, contrary to Appellants’ claim, the court did not set the rates simply based on a generalized sense of what is usual and proper. Rather, the court’s exercise of discretion 16 Appellants’ Br. at 40 (citing Coleman v. Kaye, 87 F.3d 1491 , 1510 (3d Cir. 1996)). 17 Interfaith Cmty. Org. v. Honeywell Int’l, Inc., 426 F.3d 694 , 704, 705 (3d Cir. 2005), as amended (Nov. 10, 2005) (internal citations and quotation marks omitted). 18 Appellants’ Br. at 27. 19 App. 13 –14 (internal quotation marks omitted). 4 was “based on the parties’ submissions and the evidence adduced at the hearing.”20 The court appropriately determined the market rates by looking to “the rates prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation.”21 Finally, Appellants argue that the district court “erred in substantially reducing the lodestar.”22 District courts, however, retain broad discretion to adjust the lodestar downward to account for the prevailing party’s limited success.23 “This general reduction accounts for time spent litigating wholly or partially unsuccessful claims . . . .”24 “[H]ow to measure the degree of success is left to the district court’s discretion.”25 The district court noted that there was a “significant differential between the relief requested and the relief received,” and Appellants’ attorneys did not “succe[ed] on nearly all (if not all) the theories [they] submitted to the Hearing Officer.”26 Accordingly, based on Appellants’ limited success and significant amount of time spent “litigating wholly or partially unsuccessful claims,” the court was well within its discretion to reduce the lodestar. II. 20 App. 14 . 21 Rode, 892 F.2d at 1183 . 22 Appellants’ Br. at 42. 23 Eckerhart, 461 U.S. at 436–437. 24 Rode, 892 F.2d at 1183 . 25 Mancini v. Northampton Cty., 836 F.3d 308 , 321 (3d Cir. 2016). 26 App. 17 . 5  For the reasons stated above, we will affirm the district court’s award of attorneys’ fees to Appellants. 6

2020-03-06 16:00:15.653318+00

http://www.ca2.uscourts.gov/decisions/isysquery/943d9767-5eff-4c53-9acb-e73123446434/2/doc/18-3282_so.pdf

18-3282 Williams v. Newburgh Enlarged City School District, et al. UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION ASUMMARY ORDER@). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 6th day of March, two thousand twenty. PRESENT: DEBRA ANN LIVINGSTON, MICHAEL H. PARK, Circuit Judges, STEFAN R. UNDERHILL,* Chief District Judge. _____________________________________ Michael Williams, Plaintiff-Appellant, v. 18-3282 Newburgh Enlarged City School District, Newburgh Enlarged City School District Board of Education, Defendants-Appellees, City of Newburgh, Defendants. _____________________________________ FOR PLAINTIFF-APPELLANT: Michael Williams, pro se, Newburgh, NY. FOR DEFENDANTS-APPELLEES: Gerald S. Smith, Esq., Silverman & Associates, White Plains, NY. * Chief Judge Stefan R. Underhill, of the United States District Court for the District of Connecticut, sitting by designation.  Appeal from a judgment of the United States District Court for the Southern District of New York (Karas, J.). UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED. Appellant Michael Williams appeals from a September 28, 2018 decision and order of the United States District Court for the Southern District of New York dismissing his claims under the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101, et seq., and granting summary judgment in favor of defendants-appellees the Newburgh Enlarged City School District and the Newburgh Enlarged City School District Board of Education (collectively, the “School District”). We assume the parties’ familiarity with the underlying facts, procedural history, and issues on appeal. We review orders granting summary judgment de novo and determine whether the district court properly concluded that there was no genuine dispute as to any material fact and that the moving party was entitled to judgment as a matter of law. See Sousa v. Marquez, 702 F.3d 124 , 127 (2d Cir. 2012). I. Issues Williams was previously represented by counsel but is now proceeding pro se. In the District Court he brought two causes of action against the School District under the ADA: (1) employment discrimination based on his prior illness; and (2) employment discrimination based on a perceived disability. His pro se appellate brief contains only two pages dedicated to discussing his claims. The brief does not identify any error in the district court’s opinion, refer to the record, or cite any legal authority. We “liberally construe pleadings and briefs submitted by 2 pro se litigants, reading such submissions to raise the strongest arguments they suggest.” McLeod v. Jewish Guild for the Blind, 864 F.3d 154 , 156 (2d Cir. 2017) (per curiam) (internal quotation marks omitted). Here, we exercise our discretion to review de novo the district court’s grant of summary judgment, construing the evidence in the light most favorable to the nonmoving party and drawing all reasonable inferences in his favor. See, e.g., Darnell v. Pineiro, 849 F.3d 17 , 22 (2d Cir. 2017). II. Employment Discrimination Based on Prior Illness or Perceived Illness Our review of Williams’s hiring discrimination claim follows the McDonnell Douglas burden-shifting inquiry. See McDonnell Douglas Corp. v. Green, 411 U.S. 792 , 802 (1973). Like the district court, we assume that Williams met his minimal burden of establishing a prima facie case of discrimination. See Williams v. Newburgh Enlarged City Sch. Dist., 16-cv-3276 (KMK), 2018 WL 4684146 , at *7 (S.D.N.Y. Sept. 28, 2018). The burden then shifted to the School District to articulate a legitimate, non-discriminatory reason for its hiring decisions, which the School District satisfied by pointing to a long-standing practice of preferring current employees when selecting candidates for open positions.2 In his complaint, Williams alleges that “[a]ny proffered basis for the denial of the position was an improper pretext” because “he was the most experienced and qualified applicant.” Dist. Ct. Doc. No. 1 ¶¶ 33, 46. To establish pretext, Williams must “either directly . . . persuad[e] the court that a discriminatory reason more likely motivated the employer or indirectly . . . show[] that the employer’s proffered explanation is unworthy of credence.” Dister v. Cont’l Grp., Inc., 859 F.2d 1108 , 1113 (2d Cir. 1988) (quoting 2 Williams retired from the District in October 2012. 3 Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248 , 256 (1981)). There is no dispute that due to his many years of experience, Williams was qualified for the cleaner positions. The problem, however, is that the School District’s hiring policy is not based on seniority. Rather, the School District places a greater value on promoting and transferring current employees within the district. The question then becomes whether the School District’s policy was applied consistently. Williams does not dispute that every applicant who was hired for an open cleaner position already worked for the School District, oftentimes in the very buildings for which there was an open position. Moreover, Williams does not point to any outside applicants, disabled or not, who were hired instead of him. In each and every instance, the School District documented a non- discriminatory motive for not offering Williams a position.3 In passing, Williams also argues that the School District was “biased” against him because he filed a workers’ compensation claim during the course of his employment. He further alleges that his direct supervisor encouraged him to retire. As the district court correctly observed, in considering the strongest arguments Williams’s submissions may suggest, he uses the workers’ compensation and the early retirement allegations “as background evidence of [the School District’s] discriminatory motives.” Williams, 2018 WL 4684146 , at *11 n.12. To support an inference of bias and retaliatory animus, Williams points to a workers’ compensation claim filed sometime during his employment. Other than Williams’s general claim of discrimination, the 3 The March 27, 2014 cleaning position was filled by a candidate “already employed in the District.” Supp. App’x 1. The August 20, 2014 cleaning position was “filled by a current employee seeking a transfer.” Supp. App’x 2. The August 25, 2014 cleaning positions were filled by “current employees [who] were recommended and placed in the positions.” Id. Likewise, the September 2, 2014 and September 15, 2014 cleaning positions were filled by current employees. 4 record is barren of any evidence that the School District failed to hire him in 2014 because he filed a workers’ compensation claim at some point before he retired in 2012. Thus, Williams has failed to show a causal connection between his application for workers’ compensation benefits and the School District’s hiring decisions. Williams also claims, and the School District disputes, that his supervisor “advised [him] to retire from [his] position as cleaner on October 9, 2012.” Appellant’s Br. at 4. The question is whether a standalone comment made in 2012 creates an inference of discrimination for hiring decisions made in 2014. Taking the allegation as true, the conversation between Williams and his supervisor took place two years before the alleged failure to hire. The lack of temporal proximity, combined with the isolated nature of the comment, does not give rise to an inference of discrimination. Although the remarks were made by the decision-maker, Williams has failed to show that the supervisor’s remarks in 2012 are related to the decision process in 2014. Accordingly, with respect to the School District’s hiring practices, Williams has failed to produce sufficient evidence to demonstrate that the policy was a pretext for discrimination. III. Issues Raised for the First Time on Appeal Williams raises several arguments for the first time on appeal. He claims that the School District breached its contractual duties by failing to hold his position open while he recovered from his illness. Williams also alleges, contrary to the evidence in the record, that the School District wrongfully terminated him on October 3, 2011. The well-established general rule is that an appellate court will not consider an issue raised for the first time on appeal. See Singleton v. Wulff, 428 U.S. 106 , 120–21 (1976). The rule, however, is not an absolute bar to raising new issues on appeal, as the Court may, in its discretion, depart from the general rule to remedy 5 manifest or obvious injustice. See Thomas E. Hoar, Inc. v. Sara Lee Corp., 900 F.2d 522 , 527 (2d Cir. 1990). That being said, to present an issue for appellate review, it is not enough to merely mention the issue in a brief, as Williams has done here. See Niagara Mohawk Power Corp. v. Hudson River-Black River Regulating Dist., 673 F.3d 84 , 107 (2d Cir. 2012); see also Gerstenbluth v. Credit Suisse Secs. (USA) LLC, 728 F.3d 139 , 142 n.4 (2d Cir. 2013) (explaining that pro se litigant “waived any challenge” to the district court’s adverse ruling because brief mentioned ruling only “obliquely and in passing”). We see no reason to depart from the general rule here. For the reasons set forth below, Williams’s newly raised claims are either time-barred or lack merit. Therefore, to allow Williams to advance new theories or inject new issues on appeal will not serve the purpose of remedying manifest or obvious injustice. Williams claims that the School District wrongfully terminated him in October 2011, when he was still on medical leave. As evidence of the alleged wrongful termination, Williams points to a letter dated October 4, 2011, in which the School District notified him that his “position with the [School] District [had] ended” effective October 3, 2011. Appellant’s Br. at 7. At the time the letter was sent, Williams was on medical leave. The ADA prohibits discharge of any “qualified individual with a disability” for discriminatory or retaliatory reasons. Giordano v. City of New York, 274 F.3d 740 , 747 (2d Cir. 2001) (quoting 42 U.S.C. § 12112(a)). To establish a prima facie case of discriminatory discharge, the “plaintiff must show that (1) he is a member of a protected class; (2) he was qualified for the position he held; (3) he suffered an adverse employment action; and (4) the adverse action took place under circumstances giving rise to the inference of discrimination.” Ruiz v. County of Rockland, 609 F.3d 486 , 491–92 (2d Cir. 2010). Williams satisfies the first two prongs of a prima facie case for discriminatory discharge; however, 6 he falls short of satisfying the last two elements. Williams alleges that the School District “advised [him] to retire from [his] position as cleaner on October 9, 2012” but “they had already sent [him] a letter of termination on October 3, 2011.” Appellant’s Br. at 4. Williams offers the letter dated October 4, 2011 as proof of his actual termination while on medical leave. It appears, however, that the letter dated October 4, 2011 was sent in error. According to a payroll status form, Williams continued receiving a salary from the School District through November 10, 2011. Additionally, the form shows that Williams retired from his position over a year later, on October 9, 2012. That fact is corroborated by Williams’s deposition testimony, as well as a handwritten letter dated October 9, 2012, in which Williams announced his retirement. Other than the letter dated October 4, 2011, which is at odds with the record, there is no other evidence of an actual termination. Therefore, Williams has failed to show that he “suffered an adverse employment action” on October 3, 2011. Even if Williams is allowed to make arguments not raised in the district court, his claim of wrongful termination lacks merit. Finally, Williams claims that the School District’s failure to hold his position open while he sought treatment from February 2011 to September 2012 constitutes a breach of contract—a claim he failed to raise in the district court. Unfortunately for Williams, he has a timing issue. Under New York law, a breach of contract action is subject to a six-year statute of limitations. N.Y. C.P.L.R. 213(1)-(2) (McKinney 2019). To file a lawsuit against a Board of Education, however, the statute of limitations is one year. N.Y. Educ. Law § 3813(2–b) (McKinney 2019). “A cause of action for breach of contract accrues and the statute of limitations commences when the contract is breached.” T & N PLC v. Fred S. James & Co. of N.Y., 29 F.3d 57 , 59 (2d Cir. 1994). The alleged breach occurred in September 2012 when Williams was cleared to return to 7 work but found the position he had occupied was filled. Williams did not file suit within one year of the alleged breach, accordingly, his breach of contract claim is untimely. We have considered all of Williams’s remaining arguments and find them to be without merit. Accordingly, the order of the district court is AFFIRMED. FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court 8

2020-01-17 22:02:12.461241+00

Mttedook

*771OPINION. Mttedook: The petitioners, the husbands, contend that one-half of the income derived from certain property which was conveyed to themselves and their wives is properly returnable for income tax purposes by the latter. Their contention is based principally upon the theory that it was their intention to create an estate in common by the deed of October 19, 1920, each petitioner and each wife to become thereby a cotenant of one-sixth of such property. The effect of the deed of October 19, 1920, under the law of Michigan, must be determined. The pertinent statutes, contained in volume 3, Compiled Laws of Michigan, 1915, are as follows: 11561. Sec. 43. Estates, in respect to the number and connection of their owners, are divided into estates in severalty, in joint tenancy, and in common; the nature and properties of which, respectively, shall- continue to be such as are now established by law, except so far as the same may be modified by the provisions of this chapter. 11562. Sec. 44. All grants and devises of lands, made to two or more persons, except as provided in the following section, shall be construed to create estates in common, and not in joint tenancy, unless expressly declared to be in joint tenancy. 11563. Sec. 45. The preceding section shall not apply to mortgages, nor to devises or grants made in trust, or made to executors, or to husband and wife. An examination of the decisions of the Michigan courts leads to the conclusion that despite the language of section 43, above, the common law rule of estates by the entirety still continued to exist in that State. Fisher v. Provin, 25 Mich. 347; Insurance Co. v. Resh, 40 Mich. 241; Manwaring v. Powell, 40 Mich. 371; Vinton v. Beamer, 55 Mich. 559; 22 N. W. 40; Speier v. Opfer, 73 Mich. 35; *77240 N. W. 909; Appeal of Lewis, 85 Mich. 340; 48 N. W. 580; Hoyt v. Winstanley, 221 Mich. 515; 191 N. W. 213. Cf. Sophia Weil, Administratrix, 15 B. T. A. 965. For deeds to more than two grantees, see Fullagar v. Stockdale, 138 Mich. 363; 101 N. W. 576; Price v. Pestka, 66 N. Y. S. 297; Dennis v. Dennis (Ark.), 238 S. W. 15. Dowling v. Salliotte, 83 Mich. 131; 47 N. W. 225, is to the contrary but in Appeal of Lewis, supra, the court had this to say of it: With one exception, the decisions of this court are uniform that the statute (How. St. §5561) has retained such grants [estates by the entirety] to husband and wife as they exist at the common law. * * * Until the decision of Dowling v. Salliotte (Mich.), 47 N. W. Rep. 225 decided at the last October term of this court, no doubt could reasonably have been entertained as to the character of this estate under our prior decisions. * * * In Dowling v. Salliotte the result reached by the court was correct, and in accord with the decisions above cited. The wife survived the husband, and she was held to have taken by the right of survivorship. The deed did not recite that the two grantees named were husband and wife. The court held that this fact could be shown by parol evidence. It became unnecessary, in the determination of that case, to decide whether the estate conveyed was one of joint tenancy or entirety. The result would have been the same in either case. It must be freely admitted that the language of that decision, in so far as it defines the nature of this tenancy, is in direct conflict with other decisions above cited. After very careful examination of the whole subject, our conclusion is that the former decisions were correct, and that the case of Dowling v. Salliotte must, in so far as it is in conflict therewith, be overruled. * * * In Auditor General v. Fisher, 84 Mich. 128; 47 N. W. 574, the court held in part as follows: * * * It is claimed by the State that, inasmuch as the land contract did not show upon its face that Jessie was the wife of George W. Thayer, Jr., and that the fact that she was his wife must be shown outside of the deed and by evidence beyond it, their estate in the land was held as tenants in common. This is not the law. If the estate of both was created at the same time in one instrument, and they were at the time in fact husband and wife, their interest in the land was an entirety, and nothing that one could do would bind the other as to such interest. * * * The fact that they were husband and wife could be shown by oral testimony. Dowling v. Salliotte, ante, 225. Thus, in Michigan estates by the entirety persist and it is not necessary to the creation of such an estate that grantees be described in the conveyance as husband and wife. The same rules obtain in other jurisdictions despite legislation substantially the same as the Michigan statutes above quoted. The following is from Thornburg v. Wiggins (Ind.), 34 N. E. 999: * * * A conveyance which would make two persons joint tenants will make a husband' and wife tenants of the entirety. It is not even necessary that they be described as such, or their marital relation referred to. * * * See also Armondi v. Dunham, 220 N. Y. S. 487; Wilson v. Frost (Mo.), 85 S. W. 375. We therefore conclude that under the law of *773Michigan, as well as under the common law generally, the deed in question, standing alone, would have the effect of creating estates by the entirety. The next question for our determination pertains to the effect of the evidence introduced by the petitioners, which they claim shows that it was their intention to take as tenants in common. This evidence is far from clear and we are unable to determine from it just what the intention of the six persons was, nor are we able to determine that they shared any single intent. But in any event an intention not expressed in the deed can not change the character of the estate conveyed. It has been held that at common law a husband and wife could not take as tenants in common. Stuckey v. Keefe’s Executors, 26 Pa. State 397. Cf. Wilson v. Frost, supra; Thornburg v. Wiggins, supra; Marburg v. Cole, 49 Md. 402; and Fladung v. Rose, 58 Md. 13; but see Hunt v. Blackburn, 128 U. S. 464. However this may be, it is well settled that at common law or under statutes such as those of Michigan above quoted, if other than an estate by the entirety is to be created in a husband and wife by a particular deed, there must be an expression of such an intention in the conveyance itself. There was no such expression in the deed in question. In Hoyt v. Winstanley, supra, a Michigan case, the court states: In this state, where the common-law rule is unchanged by statute, a conveyance to husband and wife conveys an estate in entirety, but may create one in joint tenancy or in common, if explicitly so stated in the deed. * * * In Thornburg v. Wiggins, supra, the opinion, after quoting the Indiana statute involved, is as follows: * * * Under a statute of the state of Michigan, similar in all its essential qualities to our own, the court held that, “ where lands are conveyed in fee to husband and wife, they do not take as tenants in common,” (Fisher v. Provin, 25 Mich. 347;) they take by entireties. Whatever would defeat the title of one, would defeat the title of the other. Manwaring v. Powell, 40 Mich. 371. They hold neither as tenants in common nor as ordinary joint tenants. The survivor takes the whole. During the lives of both, neither has an absolute inheritable interest; neither can be said to own an undivided half. Insurance Co. v. Resh, 40 Mich. 241; Allen v. Allen, 47 Mich. 74, 10 N. W. Rep. 113. * * # * # * * The whole trend of authorities, however, is in the direction of preserving such tenancies [tenancies by the entirety], where the grantees sustain the relation of husband and wife, unless from the language employed in the deed it is manifest that a different purpose was intended. Where a contrary intention is clearly expressed in the deed, a different rule obtains. See also Buttlar v. Rosenblath, 42 N. J. Eq. 651; 9 Atl. 695; Fladung v. Rose, supra; Washburn on Keal Property, vol. 1, p. 44; vol. 2, par. 1737, of Thompson on Real Property. *774Counsel for the petitioner cites Murray v. Kator, 221 Mich. 101, as contrary to this doctrine. In that case property was conveyed to “ Catherine Smitherman and Margaret Smitherman, heirs jointly.” It was apparent that the word “ jointly ” was inserted after the paragraph had been written. The court held that the word “ jointly ” was sufficient to show that the intention of the parties was to create a joint tenancy. It is obvious at once that the facts here are vitally different. If we were concerned with an instrument which on its face was ambiguous or would admit of more than one construction, a different problem would be presented. Estates by the entirety were created and the income from such estates in Michigan is taxable to the husbands. In Way v. Root, 174 Mich. 418; 140 N. W. 577, the court held: The rights of husband and wife in such an estate are purely common-law rights, to be tested and interpreted by the rules of that law as they existed before the wife was emancipated as to her individual property interests. By the common law the husband controlled his wife’s estate, and had the usufruct, not only of real estate standing in both their names, but of that sole seized by his wife, whether in fee simple, fee tail, or for life. It remains the law that, while coverture continues, the husband has the control, use, rents, and profits of an estate by entirety. In this state, contrary to the general doctrine, as stated by some authorities (21 Oyc. 1201), it is held that growing crops on the land cannot be seized on execution by his personal creditors, but otherwise the general rule as to entireties remains as stated. Morrill v. Morrill, 138 Mich. 112, 101 N. W. 209, 110 Am. St. Rep. 306, 4 Ann. Cas. 1100. Under this law defendant had the possession, use, and control of the property. He was entitled to the income from it. While outside creditors might not reach it, he was empowered to take, deal with, and dispose of what it produced. He had a right to rent the property to others and collect the rent. * * * Cf. Pray v. Stebbins, 141 Mass. 219; 4 N. E. 824; and Bertles v. Nunan, 92 N. Y. 152; 44 Am. Rep. 361. The petitioners contend that they have waived their rights to one-half of the income and are thus relieved from tax on such portion. With this we can not agree. The evidence does not show they agreed to waive their rights. But if they did agree, the Supreme Court of Michigan has held that an agreement between a husband and wife to give the wife one-half the profits of such an estate is invalid. Morrill v. Morrill, 138 Mich. 112; 101 N. W. 209. There the wife claimed she had contributed the money for the purchase of the property under an oral agreement that she should have an equal share in the profits arising from the premises. The court held that neither by virtue of the estate nor under the invalid agreement did she have any such right. In this connection the court said: The common law certainly gave her no such right; for, according to its principles, the exclusive right to dispose of the crops and use the proceeds as he saw fit belonged to the husband. [Here cases are cited.] It follows, *775therefore, that if the wife has that right now she obtained it as the result of some statute of this state. The only statute which it can be claimed has any bearing on this subject is our married woman’s act. Section 8690, Comp. Laws 1897. I think it must be conceded that the decisions of this court have determined that this statute has no application to estates by entirety. * * * Even if these reasons were not available, we would still hold the income taxable to the husbands. We have heretofore held that a person’s tax liability can not be lessened by a transfer of income already earned, or expected to be earned. The very act of transfer is an exercise of enjoyment of the fruits of ownership of property, and measures the transferor’s ability to contribute to the cost of government. See Ella Daly King, Executrix, 10 B. T. A. 698, and cases there cited. Although the point is not raised by counsel for the petitioners, it is possible that some of the property conveyed by the deed of October 19, 1920, was personalty. Since, however, the petitioners failed to make any segregation of the value of such property from the value of the real estate conveyed and failed to make any segregation in the rent, it is not necessary to discuss whether a different rule might apply as to personalty. Reviewed by the Board. Judgment will he entered for the respondent.

2020-12-03 21:00:29.803108+00

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2020/D12-03/C:20-1687:J:PerCuriam:aut:T:npDp:N:2623031:S:0

NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed. R. App. P. 32.1 United States Court of Appeals For the Seventh Circuit Chicago, Illinois 60604 Argued November 17, 2020 Decided December 3, 2020 Before FRANK H. EASTERBROOK, Circuit Judge DAVID F. HAMILTON, Circuit Judge AMY J. ST. EVE, Circuit Judge No. 20-1687 KATHRYN JO HARRIS, Appeal from the United States District Plaintiff-Appellant, Court for the Southern District of Illinois. v. No. 19-cv-870-DGW ANDREW M. SAUL, Donald G. Wilkerson, Commissioner of Social Security, Magistrate Judge. Defendant-Appellee. ORDER Kathryn Harris, a 50-year-old woman suffering from mental illnesses and anxiety, challenges the denial of her application for disability insurance benefits. She argues that the administrative law judge failed to develop the record, misevaluated the medical opinions, and wrongly discounted her statements about the limiting effects of her symptoms. But because substantial evidence supports the ALJ’s conclusion, we affirm the judgment. No. 20-1687 Page 2 Background For more than a decade before applying for benefits, Harris worked off-and-on as a registered nurse at hospitals, nursing homes, and an in-home healthcare company. But beginning around 2013, Harris began to suffer from depression and anxiety. For three days that year, Harris was hospitalized for increasing depression. Dr. Elbert Lee, her psychiatrist, treated her, noting that while this was her first inpatient psychiatric hospitalization, Harris had a “history of mood disorder” that had been unresponsive to anti-depressive medications. This time, though, medications and therapy helped her symptoms, and she was discharged. (Hospital documents indicate that Harris planned to follow up with Dr. Lee, but the record lacks any treatment records until early 20151—an omission that, she believes, undercuts the ALJ’s decision.) Between early 2015 and mid-2016, Harris saw Dr. Lee monthly for treatment of her mental illnesses with various medications. Dr. Lee usually recorded that Harris was pleasant and cooperative with normal thought processes, judgment, and concentration. In mid-2015, though, Harris was arrested for domestic violence, an episode that Dr. Lee attributed “possibly” to her Adderall, so he discontinued the drug. Harris then reported problems concentrating, but a new medication helped. In late 2015, Dr. Lee wrote in his notes that her concentration and attention were impaired and that she was disabled. Around this time, Harris applied for disability insurance benefits, asserting that she had been unable to work since 2013 because of both back problems and mental conditions, including depression and anxiety. In May 2016, Dr. Jerry Boyd, a licensed clinical psychologist acting as an agency consultant, examined Harris and diagnosed mental illnesses, but Harris indicated that her medication helped “tremendously” with them. His exam showed that Harris had “no significant impairment” in attention and concentration, and while she was distractible with a “minimal tolerance for stress now” and reported an inability to work, she could follow complex instructions if they could be repeated. That same month another consulting psychologist, Dr. Joseph Mehr, reviewed Harris’s record and characterized her professed concentration and social interaction 1 Although the Administration requested Dr. Lee’s records since 2012, when Harris says her treatment with him began, a handwritten notation on the returned request form reads “Over 500 pages. Sent last 2 years. 2015–present.” No. 20-1687 Page 3 limitations as “beyond what would be expected” from the medical evidence. He relied on Dr. Boyd’s opinion as an examining source and concluded that Harris could sustain work involving simple tasks on a continued basis, particularly in settings of low social contact. Two months later, Dr. Ellen Rozenfeld, another consulting psychologist, reviewed Harris’s record and reached similar conclusions as Dr. Mehr. In early July 2016, Dr. Lee wrote a one-page, to “whomever it may concern” letter, reiterating that Harris was disabled and unable to work due to her mental illnesses and chronic pain. In his treatment notes from a visit the same day, Dr. Lee found Harris to have normal thought processes, judgment, and concentration. But later that month, Harris spent three days in the hospital after an acute onset of paranoid delusions, a condition Dr. Lee later confirmed to be caused by some of her medications (which he discontinued). At two follow-up appointments, he noted that her psychosis had “resolved” and she had normal thought processes and concentration. Harris continued to see Dr. Lee through early 2018, and at each appointment he noted that she was pleasant and cooperative with an “okay” mood and affect and normal concentration. In March 2018, Dr. Lee reported that Harris’s severe anxiety and depression would, since 2013, cause her to be absent four or more times from work per month and that her subjective complaints were credible. At a hearing before the ALJ, Harris, represented by counsel, testified about how her stress and anxiety limited her ability to work.2 She described how she could become anxious for no reason. The hearing, for example, put her in a “total panic attack” for the past few months because she had to leave her house that she left only rarely. But seeing a psychiatrist and taking her medication regularly helped, she said. The ALJ asked a vocational expert about available work for a person like Harris who was limited to light, rote work requiring “little independent judgment” in a “stable setting” with only limited interaction with others. That person, the VE testified, would be precluded from Harris’s prior work, but could work as a checker, mail sorter, or laundry folder—as long as she did not need any off-task break longer than 15 minutes beyond normal or more than two days’ absences per month. 2 At the outset, counsel stated that he had no objection to the exhibits in the record. And earlier, counsel had written to the ALJ that he had “filed or made the … Administration aware of all” the medical records he knew of. No. 20-1687 Page 4 Applying the standard five-step process, see 20 C.F.R. § 404.1520 , the ALJ concluded that Harris was not disabled. Her depression, personality disorder, anxiety with agoraphobia, and attention deficit hyperactivity disorder were severe impairments, but none, alone or in combination, were a presumptive disability. Harris, the ALJ determined, had the residual functional capacity to perform light, rote work requiring little independent judgment in a stable setting with only occasional interaction with coworkers and her supervisor. And with those limitations, the ALJ concluded, Harris could work in jobs available in the national economy. Concerning the severity of her symptoms, the ALJ concluded that Harris’s statements were “not entirely consistent” with the record. She testified that seeing a psychiatrist and medication helped her anxiety, for example. And although she said she took them as prescribed, at her 2013 hospitalization she had stopped taking the medication (she was “tired” of them), and her doctors were concerned about possible abuse of them after her later arrest. The ALJ also noted that symptoms causing that hospitalization improved with treatment and that her 2016 hospitalization was caused by her medication that since had been discontinued. As for opinion evidence, the ALJ gave “little weight” to Dr. Lee’s reports about Harris being disabled because he had otherwise “consistently found” Harris to be cooperative with normal mood, affect, and concentration. The ALJ gave “limited weight” to Dr. Boyd’s assessment because “[w]hile his clinical observations [we]re instructive, he did not provide objective mental limitations” to help him frame an RFC. And he gave “great weight” to the opinions of Drs. Mehr and Rozenfeld even though more (consistent) evidence was added to the record after their analysis. The Appeals Council denied review, and the district court upheld the ALJ’s decision. Analysis We review the district court’s decision de novo in determining whether the ALJ’s decision was based on substantial evidence. Stephens v. Berryhill, 888 F.3d 323 , 327 (7th Cir. 2018). Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Biestek v. Berryhill, 139 S. Ct. 1148 , 1154 (2019) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197 , 229 (1938)). On appeal, Harris argues that the ALJ failed to develop the record to include Dr. Lee’s pre-2015 treatment notes, which she says are important to show her history of No. 20-1687 Page 5 a mood disorder that was unresponsive to different medications. But it was reasonable for the ALJ to proceed on a record that Harris’s previous counsel was satisfied with. An ALJ has a duty to fully and fairly develop the record. See 20 C.F.R. § 416.912 (b); Thomas v. Colvin, 745 F.3d 802 , 807 (7th Cir. 2014). But a represented claimant, like Harris, “is presumed to have made h[er] best case before the ALJ.” Skinner v. Astrue, 478 F.3d 836 , 842 (7th Cir. 2007). Here, her counsel both wrote to the ALJ that the record was complete and stated that he had no objection to it at the hearing. And as Magistrate Judge Wilkerson explained, that record was adequate to permit an informed decision. Next, Harris challenges the ALJ’s evaluation of the opinion evidence, first arguing that he erred in rejecting Dr. Lee’s opinions that she had been disabled since 2013. But the ALJ reasonably discounted Dr. Lee’s opinions. The ALJ needed to consider the relevant regulatory factors, see 20 C.F.R. § 404.1527 (c), and then “minimally articulate” his reasons for affording the opinions less weight. Elder v. Astrue, 529 F.3d 408 , 415 (7th Cir. 2008) (quoting Berger v. Astrue, 516 F.3d 539 , 545 (7th Cir. 2008)). Here, the ALJ was aware that Dr. Lee was Harris’s treating psychiatrist who examined her almost monthly for at least three years, but he reasonably focused on how Dr. Lee’s conclusions were unsupported by, and inconsistent with, his notes in the record. See 20 C.F.R. § 404.1527 (c)(1)–(4). Other than in two visits in November and December 2015, Dr. Lee repeatedly documented that Harris’s concentration was “normal” or not grossly impaired and he described her as pleasant and cooperative with normal thought processes, insight, and judgment. Harris also argues that the ALJ erred in ascribing less weight to Dr. Boyd’s opinion while assigning “great weight” to the agency doctors’ opinions that relied on his exam. But the ALJ’s determination was reasonable because, unlike Dr. Boyd, the agency doctors translated their findings into specific RFC assessments. See Johansen v. Barnhart, 314 F.3d 283 , 289 (7th Cir. 2002) (no error for ALJ to rely on only medical expert who made RFC determination). On questions concerning Harris’s ability to sustain concentration and deal with normal pressures at work, for example, Dr. Boyd stated only generally that Harris “is notably distractible” and has a “minimal tolerance” for stress. The agency doctors, though, took Dr. Boyd’s observations a step further, finding that Harris could work on “simple routine tasks … particularly in settings of low social contact” and deal with changes in work setting “if introduced gradually.” Harris also contends that the ALJ impermissibly offered his own medical opinion when finding that the evidence post-dating the agency doctors’ opinions was consistent with the record. An ALJ may not “play[] doctor” and interpret “new and potentially No. 20-1687 Page 6 decisive medical evidence” without medical input. McHenry v. Berryhill, 911 F.3d 866 , 871 (7th Cir. 2018) (quoting Goins v. Colvin, 764 F.3d 677 , 680 (7th Cir. 2014)). But here, the ALJ reasonably reviewed the evidence to determine that, aside from her two hospitalizations, Harris did not experience symptoms supporting greater limits than what the agency doctors found. It showed that her medicine caused the symptoms leading to her 2016 hospitalization (which Dr. Lee discontinued), and that she acted pleasantly at her later exams, exhibiting normal concentration and thought processes. Finally, Harris contends that the ALJ wrongly minimized her statements concerning the effects of her symptoms. He used an incorrect standard, she argues, asking whether her statements were “entirely consistent” with the record instead of whether they “can reasonably be accepted” as consistent with it. But even though the “entirely consistent” language is boilerplate, the ALJ’s recitation of it is harmless because he described (and applied) the correct standard of whether Harris’s statements about her symptoms were substantiated by the objective medical evidence and other evidence in the record. See 20 C.F.R. § 404.1529 (c); see also Burmester v. Berryhill, 920 F.3d 507 , 510–11 (7th Cir. 2019). The ALJ highlighted relevant objective medical evidence, noting that aside from her two hospitalizations, Harris’s mental exams were generally normal. He considered her use of medication, reasoning that it appeared to be providing her relief. And although she testified that she took her medications as prescribed, her 2013 hospitalization (where she stated that she had quit taking them) and her arrest (where her doctors were concerned about possible abuse) suggested otherwise. The ALJ also addressed her daily activities, noting that although she testified that she “rarely” drove or left her home, she later stated that she regularly (3–4 times per week) drove to pick up her brother. This analysis was not “patently wrong.” Summers v. Berryhill, 864 F.3d 523 , 528 (7th Cir. 2017) (quoting Eichstadt v. Astrue, 534 F.3d 663 , 667–68 (7th Cir. 2008)). For these reasons, we AFFIRM the judgment.

2020-12-03 21:02:09.862327+00

http://www.courts.ca.gov/opinions/documents/A152421.PDF

Filed 12/3/20 CERTIFIED FOR PARTIAL PUBLICATION* IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION THREE THE PEOPLE, Plaintiff and Respondent, A152421 v. JOSEPH ANGEL ABBATE, (Contra Costa County Super. Ct. No. 51319516) Defendant and Appellant. A jury found defendant Joseph Angel Abbate guilty of second-degree murder (Pen. Code, § 1871), conspiracy to commit a felony by active street gang participants (§ 182.5), and being a felon in possession of a firearm (§ 29800, subd. (a)(1)). On appeal, defendant argues: (1) the trial court erred by admitting evidence of a prior murder under Evidence Code section 1101, subdivision (b); (2) section 182.5, which criminalizes participation in a criminal street gang conspiracy, is void for vagueness and violates the principle of personal guilt; (3) Senate Bill No. 620 requires a remand to allow the court to exercise its sentencing discretion; and (4) Senate Bill No. 1437 requires reversal of his murder conviction. * Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is certified for publication with the exception of parts A, C, and D of the Discussion. 1 All further statutory references are to the Penal Code unless otherwise specified. 1  In the published portion of this opinion, we reject defendant’s challenges to section 182.5. In the unpublished portion, we conclude defendant’s contentions regarding the prior murder evidence and Senate Bill No. 1437 are without merit but determine a remand is necessary in light of Senate Bill No. 620. FACTUAL AND PROCEDURAL BACKGROUND The People charged defendant, Steven Cruz, and Ricardo Ochoa with the murder of Eduardo Ochoa (§ 187, count 1).2 The People alleged firearm enhancements (§ 12022.53, subds. (b)–(e)(1)) as to each defendant, and also alleged they committed the murder for the benefit of, at the direction of, and in association with a criminal street gang, namely, “Da Bay’s Grimiest” also known as “DBG” (§ 186.22, subd. (b)(1)). The People additionally charged defendant and his co-defendants with conspiracy to commit a felony by active street gang participants (§ 182.5, count 2), and charged defendant alone with being a felon in possession of a firearm (§ 29800, subd. (a)(1), count 3). As to the firearm possession count, the People alleged defendant committed the crime for the benefit of, at the direction of, and in association with DBG (§ 186.22, subd. (b)(1)). Defendant’s first trial took place in 2014. Ultimately, the jury could not reach a verdict on the murder charge, resulting in a mistrial on that charge. Moreover, while the jury found defendant guilty of the remaining counts and found true the gang enhancement (§ 186.22, subd. (b)(1)) accompanying the firearm possession count, the court granted defendant’s motion for new trial as to the gang conspiracy count (§ 182.5). In sum, after 2 For the sake of brevity, parity, and clarity because of shared last names, we will generally refer to defendant, his co-defendants, and to the murder victim by their first names only. No disrespect is intended. 2 the first trial defendant stood convicted of the section 29800 count with the attendant gang enhancement. A second trial took place in 2016. The jury found defendant guilty of second-degree murder and found true the attendant gang enhancement (§ 186.22, subd. (b)(1)) and firearm enhancement (§ 12022.53, subds. (d), (e)(1)). The jury also found defendant guilty of the section 182.5 gang conspiracy count. The court sentenced defendant to a term of 15 years to life in prison for the murder count, plus a consecutive 25 years to life term for the attendant firearm enhancement. The court also sentenced defendant to a term of 15 years to life for the gang conspiracy count, but stayed its execution pursuant to section 654. Finally, the court sentenced defendant to a consecutive two-year term for the firearm possession count, plus three years for the attendant gang enhancement. The following summary of the evidence at the second trial is not comprehensive but provides the necessary background and context to the issues raised on appeal. In 2010, a child was shot through the front door of a house in Contra Costa County. That address belonged to defendant, and the minor victim (who survived) is related to both defendant and co-defendant Steven, who is defendant’s cousin. Defendant was at the house at the time of this shooting. On April 11, 2012, around 12:30 p.m., B.O. was at home in San Pablo with her son, Eduardo.3 Eduardo was affiliated with the “Norteno” street gang. B.O. heard a loud noise, like a “boom.” Looking out of a window, she saw a small white car, like a Honda or a Toyota, “full of kids” looking at her 3 Pursuant to the California Rules of Court, rule 8.90, governing “Privacy in Opinions,” we refer to certain witnesses by first name and last initial or by initials only. 3 house before driving away. She found Eduardo bleeding with a large wound in his chest, and he died in her arms. During their investigation, the police located one expended cartridge case near the sidewalk in front of the home and, during the autopsy, recovered a bullet from the victim’s chest. B.O. identified co-defendant Ricardo in a photo line-up as one of the people associated with the white car.4 Brian G. was the prosecution’s principal witness.5 Brian G., who was in his early twenties at the time of trial, testified he was a member of a gang called “Varrio Frontera Locos” or “VFL” in his early teens and a member of the DBG “tagging crew,” but by his mid-teens he was not in or associated with any gang. Brian G. had known defendant since middle school. The night before Eduardo’s murder, Brian G. went to a party at the home of defendant’s aunt in Richmond, where he hung out with defendant (also known as “Grams”), Ricardo (also known as “Rebz”), and Steven. Brian G., Ricardo, Steven, defendant, and some women ended up going to a hotel around the border of Richmond and El Cerrito in a white Toyota belonging to Brian G.’s then-girlfriend. They left the hotel the next day at around 10:00 a.m. Ricardo drove the men around in the white car, and they eventually went back to the home of defendant’s aunt. There the men left Brian G. alone in the living room for 10 to 15 minutes before they left again, 4 On the stand, B.O. also identified defendant as the driver of the white car. After she testified, the parties read a stipulation into the record that B.O. did not identify defendant as a person she saw on the day of the shooting when she testified at the first trial. Later testimony also showed B.O. did not identify defendant in photo lineups the police showed to her. 5 Brian G. was charged in connection with Eduardo’s murder, and he testified in exchange for a plea agreement which entailed a two-year prison sentence with the ability to earn half-time credits. After taking the plea, he was placed into a witness protection program. 4 purportedly to buy alcohol and get money at Ricardo’s sister’s house. Ricardo said he wanted to drive, and Steven “called shotgun.” Brian G. sat behind the driver and next to defendant. The men stopped at a liquor store, then drove by a house where defendant loudly said, “That’s him” and “ ‘That’s E.’ ” When defendant said this, the only person Brian G. could see was a male Hispanic who looked like he just stepped out of a house. After defendant said this, Ricardo—without prompting—stopped the car. Brian G. heard someone say, “ ‘He’s a Dub boy,’ ” then, within seconds, Steven exited the car, walked within four to five feet of the male, and started “banging on” him by aggressively asking him if he was a “Dub boy.” The male looked afraid and denied being a “Dub boy.” After about a minute, Steven pulled out a gun and pointed it at the male, then Ricardo said, “Shoot that [racial slur],” and Steven shot him once in the chest. At this point the male ran back into the house, and Steven got back into the car. Ricardo drove them in a loop through Concord, before returning to Richmond. Brian G. testified that defendant did not show any surprise or disapproval at what Ricardo said, nor surprise at Steven pulling a gun on the man, nor upset that Steven shot him. And during the drive afterward, defendant, Steven, and Ricardo appeared to be happy, listening to music and dancing like they “made a score.” Brian G. acknowledged that during an early videotaped police interview, he told the police that after the shooting the other man in the back seat—i.e., defendant—said something like, “What the F is going on.” When asked what he meant by this, and if this was an expression of surprise, Brian G. explained defendant was “like happy, shocked. You know, like he’s the one that pointed him out.” 5  Brian G. testified that during the drive he asked the others why the victim was killed. Defendant responded that the victim had sent someone to kill him but the person mistakenly shot his niece in the face “through the window or something.”6 Brian G. also testified that when Steven seemed bothered after the shooting, defendant told Steven not to worry, and the “first time” he would get paranoid, but it would be okay. Defendant then talked about his own “first time” killing someone. Defendant said he was on the streets looking for “suckas” (meaning rival gang members), found someone on Dunn Avenue in Richmond, jumped out and said “ ‘DBG,’ ” then started shooting and the victim who got shot started screaming “ ‘Darkie.’ ” Brian G. also testified that, during the drive, defendant took a phone call and told the person on the phone that Steven “ ‘got his feet wet.’ ” Phone records showed that about 20 minutes after the shooting, defendant’s phone sent someone a text message stating, “Watch out for them suckas. It’s hot.” According to the prosecution’s gang expert, this was an alert to other gang members that a violent act was committed and to be on alert for retaliation from rivals. The day after the shooting, Brian G.—who was still hanging out with defendant—drove under the influence of alcohol, got into a car accident, left the white car at the scene, and got a ride back to his then-girlfriend’s house. Brian G. testified this was the last time he had contact with defendant. Several weeks later, the police arrested Brian G. for drunk driving and for a hit-and-run and talked to him about the shooting. Brian G. told the police numerous untrue stories before telling them that he was present 6 Sergeant Daniel Wiegers of the San Pablo Police Department, who was a lead investigator in Eduardo’s murder case, testified that Brian G. told him that Steven, not defendant, had explained he shot the victim because the victim was responsible for shooting his niece. 6 during the shooting, that Steven was the shooter, and that Ricardo was the driver. Even after this, however, he remained too scared to identify defendant. The day after his arrest, Brian G. finally identified defendant as the fourth person involved in the shooting by writing defendant’s name on a piece of paper. The officer who took the identification testified that Brian G. was too scared to say defendant’s name out loud and continued to refuse to do so even after making the identification. The other evidence at trial included evidence that defendant, accompanied by Steven, sold a gun after Eduardo’s murder that was later recovered and determined to be the murder weapon. There was evidence that while dusting for fingerprints in the white car the men had ridden in, the police found the letters “DBG” written, as if with a finger, on the inside of the windshield on the passenger side of the car, and the inside of the rear right passenger side window. Records for a cell phone number associated with defendant and police officer witnesses generally corroborated Brian G.’s testimony about the men’s location around the time of the shooting. The prosecution’s gang expert provided details about DBG, including that it had a “serious” rivalry—meaning encounters would lead to assault or assault with a firearm on sight—with a subgroup of the Nortenos called the “Dub Boyz.” The expert testified, among other things, that defendant, Ricardo, and Steven were DBG members, and answered a hypothetical indicating defendant was a DBG leader. The expert opined that a subordinate who is “getting his feet wet” would not shoot someone in front of a gang leader without that leader’s approval. A former DBG member testified that defendant was a DBG leader, and that defendant represented he founded the gang with a cousin. 7  The defense presented various witnesses to challenge the strength of the prosecution’s case. In light of Brian G.’s testimony that he, defendant, Ricardo, and Steven drank alcohol and smoked marijuana the night before and the day of the shooting, and he was not completely sober throughout those days, the defense presented expert testimony on the impact of drugs and alcohol on human memory. During closing argument, defense counsel argued at length that Brian G. lied about defendant’s involvement in Eduardo’s shooting in order to get a plea deal. Defense counsel also tried to show weaknesses in the testimony of various prosecution witnesses. DISCUSSION A. Evidence Code Section 1101, Subdivision (b) Defendant first contends the trial court erred in admitting evidence of a prior uncharged murder under Evidence Code section 1101, subdivision (b) (“section 1101(b)”). We find no abuse of discretion. 1. Additional Facts Before the second trial, the prosecutor moved to introduce evidence that defendant committed a prior uncharged murder. (Evid. Code, § 1101(b).) The trial court granted the motion, finding it relevant to prove specific intent for the murder count, as well as the knowledge and specific intent for the section 182.5 count. As indicated above, Brian G. testified that when Steven seemed bothered about what he had done, defendant talked about his own “first time” killing someone, saying he was on the streets looking for rival gang members, found someone on Dunn Avenue in Richmond, jumped out and said “ ‘DBG,’ ” then started shooting and the victim he shot started screaming “ ‘Darkie.’ ” Additionally, the prosecution presented testimony from Wilfredo N. concerning the 2011 murder of Andrew Manriquez. 8  More specifically, Wilfredo N. testified that in April 2011, he was with Manriquez visiting a person known as “Darkie” at his home on “Dunn Street” in Richmond. It was almost 10:00 p.m. when Wilfredo N. was walking to his car and saw two people approach the house. Wilfredo N. saw one of them start shooting, but based on gun shot casings knew there was more than one shooter. He described them as Hispanic males in their early 20s. Manriquez was shot in the head and died. On the night of the shooting, Wilfredo N. told the police he could not identify anyone. About two weeks later, however, Wilfredo N. identified defendant in a photo-lineup as one of the men involved, but told the officer he was only 70 percent sure and did not want to send the wrong person to prison. Wilfredo N. testified more than 10 people told him someone named “Grams” may have been involved in the shooting. The trial court instructed the jury it could find defendant guilty of murder under the following four theories aside from direct perpetration: (1) defendant aided and abetted the perpetrator in the murder; (2) he aided and abetted the commission of an assault with a firearm, the natural and probable consequence of which was murder; (3) he conspired to murder; or (4) he conspired to commit an assault with a firearm, the natural and probable consequence of which was murder. The court also instructed that if the People proved by a preponderance of the evidence that defendant committed the uncharged Manriquez murder, the jury could, but was not required to, consider that in deciding: (1) whether defendant acted with intent to murder Eduardo as charged in count 1; (2) whether a criminal street gang called DBG existed before Eduardo’s killing as required for count 2; (3) whether murder and/or assault with a firearm were primary activities of DBG before Eduardo’s killing as required for count 2; and (4) whether DBG engaged in a pattern of criminal gang activity before Eduardo’s killing as 9 required for count 2. The jury was instructed it could not conclude from the evidence about the Manriquez murder that defendant has a bad character or is disposed to commit crime. 2. Analysis Evidence Code section 1101(b) permits the admission of evidence that a person committed an uncharged crime when relevant to prove some fact other than the defendant’s propensity to commit such an act, such as intent. “Evidence of intent is admissible to prove that, if the defendant committed the act alleged, he or she did so with the intent that comprises an element of the charged offense.” (People v. Ewoldt (1994) 7 Cal.4th 380 , 394, fn. 2 (Ewoldt).) “The least degree of similarity (between the uncharged act and the charged offense) is required in order to prove intent. [Citation.] ‘[T]he recurrence of a similar result . . . tends (increasingly with each instance) to negative accident or inadvertence or self-defense or good faith or other innocent mental state, and tends to establish (provisionally, at least, though not certainly) the presence of the normal, i.e., criminal, intent accompanying such an act . . . .’ [Citation.] In order to be admissible to prove intent, the uncharged misconduct must be sufficiently similar to support the inference that the defendant ‘ “probably harbor[ed] the same intent in each instance.” ’ ” (Id. at p. 402.) We review rulings on the admission of evidence under Evidence Code sections 1101(b) and 352 for abuse of discretion. (People v. Fuiava (2012) 53 Cal.4th 622 , 667–668.) Defendant first contends the evidence concerning the Manriquez murder (both Brian G.’s testimony and Wilfredo N.’s testimony) should have been excluded because that murder was insufficiently similar to the charged murder to be admissible under Evidence Code section 1101(b), as proof that 10 defendant intended to aid and abet, or intended to conspire to commit, the charged murder. We see no abuse of discretion. Here, the evidence reflects that both shootings involved targets selected because of their association with, or perceived association with, rival gangs. With regard to the Manriquez shooting, the evidence showed that defendant and a cohort perpetrated that shooting while on the streets looking for rival gang members, and that defendant shouted “DBG” before shooting. As for Eduardo’s shooting, the evidence showed that after defendant identified Eduardo, Steven started “banging on” Eduardo by aggressively asking him if he was a “Dub boy.” Additionally, both shootings were “walk-up” shootings in the Richmond/San Pablo area. As the prosecution’s gang expert explained, in the context of street gangs, “walk-up” shootings are considered more “difficult” and “prestigious” than “drive by” shootings. The evidence that defendant was previously involved in a walk-up shooting targeting a rival gang member logically tended to support the inference that when defendant sat in the white car with Brian G., Ricardo, and Steven and identified the victim on the street, he did so with intent to aid and abet the victim’s murder or an assault with a firearm, or he conspired to commit those crimes. The evidence was thus highly probative of intent and tended to negate an innocent mental state. (Ewoldt, supra, 7 Cal.4th at p. 402.) In reaching this conclusion, we note that “exact overlap” between the charged crime and uncharged prior act is not required. (People v. Merchant (2019) 40 Cal.App.5th 1179 , 1193, fn. 4; see, e.g., People v. Jones (2011) 51 Cal.4th 346 , 371 [evidence of a prior robbery that was not particularly similar to the charged home invasion properly admitted because the two crimes involved “one crucial point of similarity—the intent to steal from victims 11 whom defendant selected”]; People v. Sedillo (2015) 235 Cal.App.4th 1037 , 1043, 1058–1060 [evidence of defendant’s prior violent acts towards gang rivals at mall “relatively similar” to her acting as a getaway driver to assist in an indiscriminate shooting at a gang rival’s memorial wake].) Next, defendant argues the evidence of the uncharged murder should have been excluded as irrelevant to any disputed issue in the case. Relying on People v. Balcom (1994) 7 Cal.4th 414 (Balcom), defendant contends that, regardless of any similarity to a charged crime, uncharged acts may not be admitted to prove intent where—if the jury believes the prosecutor’s theory of events—it must necessarily believe that the defendant acted with the requisite intent. This argument lacks merit. Balcom was a rape case where the victim testified the defendant raped her at gunpoint, while defendant claimed they had consensual intercourse. (Balcom, supra, 7 Cal.4th at pp. 418–420.) The prosecution presented evidence that defendant raped another woman at gunpoint six weeks after the charged offense. (Id. at p. 421.) The Supreme Court concluded the trial court improperly admitted the evidence because its “limited probative value” to prove intent was outweighed by its “substantial prejudicial effect.” (Id. at p. 423.) There, the victim and the defendant had presented “wholly divergent accounts”; thus, if the jury believed the victim’s account that defendant forced her to have sex at gunpoint, then “[n]o reasonable juror . . . could have concluded that defendant . . . lacked the requisite intent to commit rape” and the evidence of the uncharged rape would have been “merely cumulative on this issue.” (Id. at pp. 422–423.) Unlike the situation in Balcom, defendant did not testify, and the jury was not faced with “wholly divergent accounts” of how Eduardo’s shooting occurred. As defendant observes, Brian G. testified that defendant was 12 happy about Steven shooting Eduardo, that defendant explained the shooting was to avenge his niece, and that defendant bragged about the Manriquez shooting. Although this evidence and other circumstances surrounding the Eduardo shooting tended to show intent, a reasonable jury could have believed that defendant lacked intent to kill. (Balcom, supra, 7 Cal.4th at p. 422.) Indeed, because defendant was not the actual shooter, and he and Steven share the same niece who was previously shot, a reasonable juror could have interpreted the evidence as showing merely that defendant identified Eduardo on the street with no concurrent criminal intent, and that defendant was simply happy when Steven took matters into his own hands. Thus, in contrast to the circumstances in Balcom, the evidence of the uncharged gang-related Manriquez shooting, including defendant’s bragging about it, provided compelling evidence of defendant’s intent under similar circumstances and would not have been “merely cumulative.” (Id. at p. 423.) Finally, defendant claims evidence of the uncharged murder should have been excluded under Evidence Code section 352 given its highly prejudicial nature. Again, we disagree. Evidence of uncharged offenses must have substantial probative value to be admissible, given the substantial prejudicial effect inherent in such evidence. (People v. Rogers (2013) 57 Cal.4th 296 , 331.) Here, defendant’s intent, an element of the charged murder, was at issue and contested. (People v. Daniels (1991) 52 Cal.3d 815 , 857–858.) The evidence of the Manriquez murder had substantial probative value with respect to establishing defendant’s intent to kill at the time of the shooting (Ewoldt, supra, 7 Cal.4th at p. 404), and it was no more inflammatory than the charged murder (People v. Lindberg (2008) 45 Cal.4th 1 , 25). Furthermore, the trial court gave a limiting instruction advising jurors they could not 13 conclude from the evidence that defendant has a bad character or is disposed to commit crime. This instruction, which we presume the jury followed, mitigated the possibility of prejudice. (Id. at pp. 25–26.) In sum, the evidence of the Manriquez murder was properly admitted. B. Challenges to Section 182.5 Section 182.5 provides: “any person who actively participates in any criminal street gang, as defined in subdivision (f) of Section 186.22, with knowledge that its members engage in or have engaged in a pattern of criminal gang activity, as defined in subdivision (e) of Section 186.22, and who willfully promotes, furthers, assists, or benefits from any felonious criminal conduct by members of that gang is guilty of conspiracy to commit that felony and may be punished as specified in subdivision (a) of Section 182.”7 This statute created a new form of conspiracy distinct from the traditional understanding of the crime and was intended to “ ‘expand[] the law on conspiracy to include gang-related activities.’ ” (People v. Johnson (2013) 57 Cal.4th 250 , 261, italics omitted.) Defendant challenges section 182 on constitutional grounds, arguing the statute is void for vagueness. He additionally argues the statute impermissibly punishes persons based on mere affiliation with an organization without the requisite “personal guilt” described in Scales v. 7 “Criminal street gang” is defined as “any ongoing organization, association, or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more of [various enumerated crimes], having a common name or common identifying sign or symbol, and whose members individually or collectively engage in, or have engaged in, a pattern of criminal gang activity.” (§ 186.22, subd. (f).) “Pattern of criminal gang activity” is defined, in part, as “the commission of, attempted commission of, conspiracy to commit, or solicitation of, sustained juvenile petition for, or conviction of two or more of [various enumerated] offenses.” (§ 186.22, subd. (e).) 14 United States (1961) 367 U.S. 203 (Scales). We address these claims in turn below. 1. Vagueness Defendant first contends the portion of the statute that punishes those who “willfully . . . benefit[] from any felonious criminal conduct by [gang] members” is void for vagueness on its face in violation of state and federal due process provisions. (§ 182.5.) More specifically, he claims the statute does not make clear “whether the defendant must have knowledge that the benefit he willingly and purposely received actually came from” felonious gang conduct. As an example, he asserts it is unclear if a defendant receiving stolen money from a gang member who robbed a bank could be liable “even if he had no knowledge of the bank robbery.” He also argues the statute does not make clear “whether the defendant needs to agree to or even know about the benefit he will receive before or during the commission of the underlying felony.” Defendant further contends the statute is void for vagueness as applied. Similar to his facial challenge, he claims ordinary persons of common intelligence cannot understand the meaning of the statutory phrase “ ‘who willfully . . . benefits.’ ” We reject these contentions. “The constitutional interest implicated in questions of statutory vagueness is that no person be deprived of ‘life, liberty, or property without due process of law,’ as assured by both the federal Constitution (U.S. Const., Amends. V, XIV) and the California Constitution (Cal. Const., art. I, § 7).” (Williams v. Garcetti (1993) 5 Cal.4th 561 , 567 (Williams).) To satisfy the dictates of due process, a criminal statute must satisfy two requirements. “First, the provision must be definite enough to provide a standard of conduct for those whose activities are proscribed. . . . [¶] Second, the statute must 15 provide definite guidelines for the police in order to prevent arbitrary and discriminatory enforcement.” (People v. Heitzman (1994) 9 Cal.4th 189 , 199– 200; Holder v. Humanitarian Law Project (2010) 561 U.S. 1 , 18 (Holder).) “The starting point of our analysis is ‘the strong presumption that legislative enactments “must be upheld unless their unconstitutionality clearly, positively, and unmistakably appears.” ’ ” (Williams, supra, 5 Cal.4th at p. 568.) Moreover, it is settled that one “who engages in some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of others. A court should therefore examine the complainant’s conduct before analyzing other hypothetical applications of the law.” (Village of Hoffman Est. v. Flipside, Hoffman Est. (1982) 455 U.S. 489 , 494–495 (Hoffman Estates); Tobe v. City of Santa Ana (1995) 9 Cal.4th 1069 , 1095.) We review the constitutionality of statutes de novo. (People v. Superior Court (J.C. Penney Corp., Inc.) (2019) 34 Cal.App.5th 376 , 387 (J.C. Penney Corp., Inc.).) Defendant acknowledges the rule that a defendant who engages in conduct clearly proscribed by a law cannot complain of the law’s vagueness as applied to the conduct of others. (Hoffman Estates, supra, 455 U.S. at p. 495.) He also does not question the attendant rule that courts should first conduct an as-applied inquiry before addressing a facial vagueness challenge. (Ibid.; see J.C. Penney Corp., Inc., supra, 34 Cal.App.5th at pp. 400, 403–404 [observing Johnson v. United States (2015) 576 U.S. 591 “did not put an end to the ‘as-applied inquiry first’ rule”], and cases cited therein; Kashem v. Barr (9th Cir. 2019) 941 F.3d 358 , 376–377.) We thus proceed by first examining whether section 182.5 clearly proscribes defendant’s conduct. We conclude it does. 16  The language of section 182.5 makes clear it punishes “an active gang participant with knowledge of other members’ pattern of criminal gang activity.” (People v. Johnson, supra, 57 Cal.4th at p. 262.) It “does not require any prior agreement among the conspirators to promote, further, or assist in the commission of a particular target crime.” (Ibid.) Moreover, it “brings within its ambit not only a gang member who promotes, furthers, or assists in the commission of a felony” but also “an active and knowing participant [in a criminal street gang] who merely benefits from the crime’s commission, even if he or she did not promote, further, or assist in the commission of that particular substantive offense.” (Ibid.) The statute requires that a defendant “willfully” promote, further, assist, or benefit from felonious gang conduct (§ 182.5), and case law has long recognized that “ ‘[t]o do a thing wilfully is to do it by design, with set purpose.’ [Citation.] To do a thing wilfully is to do it knowingly.” (People v. Calvert (1928) 93 Cal.App. 568 , 573; see People v. Atkins (2001) 25 Cal.4th 76 , 85.) Here, there was evidence that defendant was a DBG leader who actively participated in the gang, that he knew DBG members engaged in a pattern of criminal activity, and that he acted as an aider and abettor or a conspirator in the Eduardo murder or in an assault with a firearm for which murder was a natural and probable consequence. Indeed, the jury convicted defendant of murder and found true the allegation that defendant committed the murder for the benefit of, or at the direction of, or in association with DBG, with specific intent to promote, further, or assist in criminal gang conduct. Because defendant’s conduct fell squarely within the parameters of section 182.5, his vagueness challenge must fail. (Holder, supra, 561 U.S. at p. 21; Bowland v. Mun. Court for Santa Cruz County Judicial Dist. (1976) 18 Cal.3d 479 , 492.) 17  In arguing to the contrary, defendant barely addresses his own conduct or the evidence presented in his case. Instead, he points out that during the first jury trial, the trial court indicated its belief that section 182.5 did not apply to a person who did not know about the crime he or she derived a benefit from, and the prosecutor made arguments leading the jury to believe it could convict defendant of the section 182.5 count without finding he agreed to benefit from or knew about the murder prior to its commission. Defendant also complains the trial court failed to instruct the jury in the second trial that it was required to find defendant willfully agreed to benefit from the murder prior to its commission. These arguments are non-sequiturs. It is not apparent why statements by the trial court and prosecutor at the first trial and the claimed instructional omission in the second trial are relevant to the question of whether defendant’s conduct clearly falls within the ambit of section 182.5. That said, we note the prosecutor did not suggest at the second trial that defendant was guilty under section 182.5 as a passive recipient of benefit. Moreover, the court instructed the jury a conviction on the section 182.5 count required its finding that defendant “acted with the specific intent to promote, further, assist, or benefit from the Second Degree Murder charged in Count One.”8 Defendant asserts: “nothing in the jury’s verdict indicates that it found that [defendant] planned a murder. Although the jury convicted [defendant] of murder in count one, the instructions permitted a conviction if the jury found [defendant] merely aided and abetted, or conspired to, commit an assault with a firearm and murder was a natural and probable consequence 8 The issue of whether the trial court properly gave this specific intent instruction has not been briefed and that issue is not before us. 18 of that murder. [Citation.] Moreover, the evidence supported this theory.” This argument is difficult to understand and ultimately unpersuasive. Again, the issue at hand concerns the constitutionality of section 182.5, and the precise question is whether defendant’s conduct clearly fell within its bounds. As explained above, the answer to that question is a firm yes. Bearing in mind the strong presumption that a law must be upheld unless its unconstitutionality “clearly, positively, and unmistakably appears” (Williams, supra, 5 Cal.4th at p. 568), we reject defendant’s vagueness challenge to section 182.5. 2. Personal Guilt and the Scales Decision Citing Scales, supra, 367 U.S. 203 , defendant argues section 182.5 lacks its “element of personal guilt insofar as there is no requirement of a guilty knowledge and intent” and permits a conviction based on mere affiliation with an organization. We are not persuaded. Scales involved an alleged member of the Communist Party of the United States who was convicted under the “membership clause” of the Smith Act, a federal law that criminalized “the acquisition or holding of knowing membership in any organization which advocates the overthrow of the Government of the United States by force or violence.” (Scales, supra, 367 U.S. at p. 205.) Per the jury instructions, that crime required findings on two elements: “(1) the Communist Party advocated the violent overthrow of the Government, in the sense of present ‘advocacy of action’ to accomplish that end as soon as circumstances were propitious; and (2) [the defendant] was an ‘active’ member of the Party, and not merely ‘a nominal, passive, inactive or purely technical’ member, with knowledge of the Party’s illegal advocacy and a specific intent to bring about violent overthrow ‘as speedily as circumstances would permit.’ ” (Id. at p. 220.) 19  As relevant here, the petitioner in Scales challenged his conviction by arguing the law was unconstitutional on its face and as applied because it “impermissibly imputes guilt to an individual merely on the basis of his associations and sympathies, rather than because of some concrete personal involvement in criminal conduct” in violation of the Fifth Amendment. (Scales, supra, 367 U.S. at p. 220.) The United States Supreme Court rejected this contention and upheld the law. (Id. at pp. 224–228.) As the high court explained: “In our jurisprudence guilt is personal, and when the imposition of punishment on a status or on conduct can only be justified by reference to the relationship of that status or conduct to other concededly criminal activity (here advocacy of violent overthrow), that relationship must be sufficiently substantial to satisfy the concept of personal guilt in order to withstand attack under the Due Process Clause of the Fifth Amendment. Membership, without more, in an organization engaged in illegal advocacy . . . has not heretofore been recognized by this Court to be such a relationship.” (Id. at pp. 224–225, italics added.) The Supreme Court proceeded to analyze “the relationship between the fact of membership and the underlying substantive illegal conduct, in order to determine whether that relationship is indeed too tenuous to permit its use as the basis of criminal liability.” (Scales, supra, 367 U.S. at p. 227.) On the record before it, the high court observed the Communist Party was “an organization which engages in criminal activity,” and the court could “perceive no reason why one who actively and knowingly works in the ranks of that organization, intending to contribute to the success of those specifically illegal activities, should be any more immune from prosecution than he to whom the organization has assigned the task of carrying out the substantive criminal act.” (Id. at pp. 226–227, italics added.) In upholding the validity of 20 the statute, the court reasoned that it reached “only ‘active’ members having also a guilty knowledge and intent, . . . which therefore prevents a conviction on what otherwise might be regarded as merely an expression of sympathy with the alleged criminal enterprise, unaccompanied by any significant action in its support or any commitment to undertake such action.” (Id. at p. 228.) The California Supreme Court’s decision in People v. Castenada (2000) 23 Cal.4th 743 (Castenada) provides guidance in understanding Scales’s articulation of the requirement of personal guilt. Castenada addressed the applicability of Scales in the context of section 186.22, subdivision (a) (“186.22(a)”), another statute that criminalizes gang activity. (23 Cal.4th at p. 749.) Section 186.22(a) provides: “Any person who actively participates in any criminal street gang with knowledge that its members engage in, or have engaged in, a pattern of criminal gang activity, and who willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang, shall be punished by” imprisonment. Focusing on Scales’s holding that “the Smith Act satisfied the due process requirement of personal guilt by requiring proof of a defendant’s active membership in a subversive organization with knowledge of and an intent to further its goals,” the Castenada court indicated that Scales “allowed the criminal conviction of anyone holding active membership in a subversive organization, without requiring that the member aid and abet any particular criminal offense committed by other members.” (Castenada, supra, 23 Cal.4th at pp. 749–750.) Then, turning to the statutory elements of section 186.22(a)—i.e., active participation in a criminal street gang, “knowledge that its members engage in, or have engaged in, a pattern of criminal gang activity,” and willful promotion, furthering, or assisting felonious gang conduct—Castenada observed that such elements exceeded the 21 active membership test articulated in Scales because “a person who violates section 186.22(a) has also aided and abetted a separate felony offense committed by gang members.” (Castenada, at p. 749; see also People v. Carr (2010) 190 Cal.App.4th 475 , 488, fn. 13 (Carr) [construing section 186.22’s phrase “ ‘the defendant knew that members of a gang engaged in or have engaged in a pattern of criminal gang activity’ . . . to correlate to the active membership test described in Scales, that is, ‘ “guilty knowledge and intent’ of the organization’s criminal purposes’ ”].) Turning to the case at hand, we reject defendant’s argument that section 182.5 violates the due process principles in Scales. Section 182.5, like section 186.22(a), requires a defendant’s active participation in a criminal street gang, as well as “knowledge that its members engage in or have engaged in a pattern of criminal gang activity.” Per Castenada, and as stated in Carr, this appears sufficient to satisfy Scales’s “active membership test.” (Carr, supra, 190 Cal.App.4th at p. 488, fn. 13.) Notwithstanding the foregoing, defendant focuses on the “benefit” provision in section 182.5 and argues it violates Scales because it punishes a defendant for willingly benefiting “without knowledge that the benefit received came as a result of criminal gang conduct.” But, as previously mentioned, “ ‘[t]o do a thing wilfully is to do it knowingly.” (People v. Calvert, supra, 93 Cal.App.at p. 573; see People v. Atkins, supra, 25 Cal.4th at p. 85.) Defendant fails to explain how a person can “willfully . . . benefit[] from . . . felonious criminal conduct by members of [a] gang” without knowing the benefit he or she reaped came from felonious gang conduct. That is, if a jury finds that a defendant willfully benefited from felonious gang conduct, it stands to reason that the defendant impliedly knew that he or she reaped a benefit from that conduct. Thus, the premise of defendant’s argument fails. 22  Furthermore, while it is true the statute in Scales “prohibited membership in a group advocating the violent overthrow of the government,” i.e., it criminalized “mere membership” (Holder, supra, 561 U.S. at pp. 17– 18), Scales “construed the statute to require active membership and, as so construed, upheld it despite the absence of any element requiring a specific act of criminality.” (People v. Albillar (2010) 51 Cal.4th 47 , 57, italics added.) Here, section 182.5 is not a statute that criminalizes mere membership in a gang or, as Scales put it, punishes “merely an expression of sympathy with the alleged criminal enterprise, unaccompanied by any significant action.” (Scales, supra, 367 U.S. at p. 228.) Rather, section 182.5 makes a defendant culpable for conspiracy to commit a specific felony if, among other things, a defendant willfully benefits from felonious gang conduct. In other words, section 182.5 requires a significant action, not mere membership. (Cf. United States v. Cupa-Guillen (9th Cir. 1994) 34 F.3d 860 , 863 [“Where an offense is based on an underlying act which society has an interest in preventing, the offense is not a status crime.”].) We reject defendant’s claim that section 182.5 violates the concept of personal guilt articulated in Scales. C. Senate Bill No. 620 Defendant asks us to remand the case in light of Senate Bill No. 620 (SB 620), in order to permit the trial court to exercise its discretion whether to strike the firearm enhancement as to count 1 pursuant to amended section 12022.53, subdivision (h). The People concede that defendant is entitled to the requested remand. We agree that remand is appropriate because the record contains no clear indication of how the court might have acted had it been presented the opportunity to strike the firearm 23 enhancements imposed in this case. (People v. McDaniels (2018) 22 Cal.App.5th 420 , 425.) D. Senate Bill No. 1437 There was substantial evidence at trial that Steven, not defendant, shot Eduardo. As indicated, the trial court’s instructions permitted the jury to find defendant guilty of murder if he aided and abetted the commission of, or conspired to commit, murder or an assault with a firearm, the natural and probable consequence of which was murder. In September 2018, about a year after defendant was sentenced and while his appeal was pending, the Governor signed Senate Bill No. 1437 (SB 1437), which went into effect on January 1, 2019. (Stats. 2018, ch. 1015.) SB 1437 “amend[ed] the felony murder rule and the natural and probable consequences doctrine, as it relates to murder, to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life.” (Stats. 2018, ch. 1015, § 1, subd. (f).) SB 1437 accomplished this through amendments to sections 188 and 189. (People v. Martinez (2019) 31 Cal.App.5th 719 , 723.) Specifically, SB 1437 amended the definition of “malice” in section 188 to read: “Except as stated in subdivision (e) of Section 189, in order to be convicted of murder, a principal in a crime shall act with malice aforethought. Malice shall not be imputed to a person based solely on his or her participation in a crime.” (§ 188, subd. (a)(3); Stats. 2018, ch. 1015, § 2.) SB 1437 amended the statutory felony murder rule to provide that a participant in the perpetration or attempted perpetration of an enumerated felony resulting in death is liable for murder only if one of the following is proven: “(1) The person was the actual killer. [¶] (2) The person was not the 24 actual killer, but, with the intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer in the commission of murder in the first degree. [¶] (3) The person was a major participant in the underlying felony and acted with reckless indifference to human life, as described in subdivision (d) of Section 190.2.” (§ 189, subd. (e); Stats. 2018, ch. 1015, § 3.) SB 1437 also added section 1170.95, which allows defendants convicted of murder to seek retroactive relief if SB 1437’s changes in the law would affect their previously sustained convictions. As relevant here, section 1170.95 provides that “[a] person convicted of felony murder or murder under a natural and probable consequences theory may file a petition with the court that sentenced the petitioner to have the petitioner’s murder conviction vacated and to be resentenced on any remaining counts when all of the following conditions apply: [¶] (1) A complaint, information, or indictment was filed against the petitioner that allowed the prosecution to proceed under a theory of felony murder or murder under the natural and probable consequences doctrine. [¶] (2) The petitioner was convicted of first degree or second degree murder following a trial or accepted a plea offer in lieu of a trial at which the petitioner could be convicted for first degree or second degree murder. [¶] (3) The petitioner could not be convicted of first or second degree murder because of changes to Section 188 or 189 made effective January 1, 2019.” (§ 1170.95, subd. (a).) Defendant presently argues that SB 1437’s changes to sections 188 and 189 apply retroactively to his case, and that we should reverse his murder conviction because the jury could have convicted him on a theory of culpability—application of the natural and probable consequences doctrine— that no longer exists. Due to SB 1437, defendant claims the trial court 25 misinstructed the jury as to the elements of murder, and the jury did not make the factual findings necessary for a murder conviction. Numerous decisions have held that relief under SB 1437 must be obtained via the statutory petitioning procedure set out in section 1170.95. (People v. Bell (2020) 48 Cal.App.5th 1 , 10–11; People v. Cervantes (2020) 46 Cal.App.5th 213 , 220–221; People v. Garcia (2020) 46 Cal.App.5th 123 , 181– 182; People v. Anthony (2019) 32 Cal.App.5th 1102 , 1153–1158; People v. Martinez (2019) 31 Cal.App.5th 719 , 724–730.) These cases have considered and rejected the same arguments defendant presently raises about why his murder conviction should be reversed under SB 1437 via direct appeal. (Cervantes, supra, at pp. 222–225; Anthony, supra, at pp. 1153–1154, 1156– 1157; Martinez, supra, at pp. 725–728.) We agree with and adopt the reasoning in these opinions. Defendant has not persuaded us to reach a contrary conclusion. Defendant relies on People v. Ramos (2016) 244 Cal.App.4th 99 to argue his murder convictions should be reversed on direct appeal, but we find that case clearly distinguishable. As defendant himself acknowledges, “in contrast to [SB] 1437, the legislation construed by Ramos did not include a superior court petition procedure.” (Ramos, at pp. 102–103; see Stats. 2013, ch. 504, §§ 1–2 (AB 721).) In sum, we reject defendant’s request for relief under SB 1437 via direct appeal. Defendant can, if he chooses, pursue relief under SB 1437 through the petition procedure set out in section 1170.95. DISPOSITION The case is remanded to the trial court to consider whether to strike the firearm enhancement imposed under section 12022.53. The clerk of the superior court is ordered to forward a certified copy of any amended abstract 26 of judgment to the Department of Corrections and Rehabilitation. The judgment is otherwise affirmed. 27  _________________________ Fujisaki, J. WE CONCUR: _________________________ Siggins, P. J. _________________________ Jackson, J. A152421 28 People v. Joseph Angel Abbate (A152421) Trial Court: Contra Costa County Trial Judge: Hon. Charles B. Burch Attorneys: Catherine White, under appointment by the First District Court of Appeal for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Jeffrey M. Laurence, Senior Assistant Attorney General, Catherine A. Rivlin, Supervising Deputy Attorney General, Karen Z. Bovarnick, Deputy Attorney General for Plaintiff and Respondent. 29

2020-12-03 21:02:11.585828+00

http://www.courts.ca.gov/opinions/documents/B299132.PDF

Filed 12/3/20 CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION TWO JOHN E. HUMPHREVILLE, B299132 Plaintiff and Appellant, (Los Angeles County Super. Ct. No. BS174384) v. CITY OF LOS ANGELES et al., Defendants and Respondents. APPEAL from a judgment of the Superior Court of Los Angeles County, Mitchell L. Beckloff, Judge. Affirmed. Blood Hurst & O’Reardon, Timothy G. Blood, Leslie E. Hurst, Jennifer L. Macpherson; Consumer Watchdog, Jerry Flanagan, Pamela Pressley, Benjamin Powell; Ajalat, Polley, Ayoob & Matarese, Richard J. Ayoob and Gregory R. Broege for Plaintiff and Appellant. Jonathan M. Coupal, Timothy A. Bittle, and Laura E. Dougherty for Howard Jarvis Taxpayers Association as Amicus Curiae on behalf of Plaintiff and Appellant.  Michael N. Feuer, City Attorney, Kathleen A. Kenealy, Chief Assistant City Attorney, Scott Marcus, Chief, Civil Litigation Branch, Blithe S. Bock, Assistant City Attorney, Sara Ugaz, Deputy City Attorney, for Defendants and Respondents. ****** Under the California Constitution, a city may impose a “general tax” only if a majority of voters within its jurisdiction so approve. (Cal. Const., art. XIII C, §§ 1, subd. (a), 2, subd. (b).) For these purposes, a “tax” is defined as “any levy, charge, or exaction of any kind imposed” (id., § 1, subd. (e)), but excludes charges “imposed for a specific government service or product provided directly to the payor that is not provided to those not charged, and which does not exceed the reasonable costs to the local government of providing the service or product” (id., § 1, subd. (e)(2)). Here, a city-owned utility charges rates to its customers that do not “exceed the reasonable costs” of providing the utility service, but at the end of each fiscal year, the city routinely invokes its power under the city’s charter to, via multiple steps, transfer the “surplus” in the utility’s revenue fund—that is, the amount left over after paying all “outstanding demands and liabilities” which, if transferred, will not have a “material negative impact” on the utility’s “financial condition” (L.A. Charter, § 344(b))—to the city’s general fund. Does this routine practice by the city constitute a “tax” that requires voter approval? We conclude that it does not. Accordingly, we affirm the dismissal of a lawsuit challenging the practice as being an unlawful “tax.” 2  FACTS AND PROCEDURAL BACKGROUND I. Facts The City of Los Angeles (the City) owns and operates the Los Angeles Department of Water and Power (the DWP). Among other things, the DWP supplies electricity to approximately 1.4 million residential and business customers. The DWP is governed by the Los Angeles Board of Water and Power Commissioners (the Board). Pursuant to the City’s charter, the rates for the DWP’s electrical service are set by City ordinance. (L.A. Charter, § 676.) The two most recent ordinances governing the DWP’s electrical service rates took effect on September 19, 2008 and on April 15, 2016. Also pursuant to the City’s charter, the City has the power to “direct” that any “surplus” in the DWP’s revenue fund be “transferred” to the City’s Reserve Fund and then to its General Fund. (L.A. Charter, §§ 341, 344.) For these purposes, a “surplus” is defined as “the amount remaining” in the DWP’s revenue fund “less outstanding demands and liabilities payable out of the fund” “at the end of the [pertinent] fiscal year.” (Id., § 344(b).) Although such a transfer requires the “consent” of the Board (id., § 344), the Board “may withhold its consent” to such a transfer only “if, despite the existence of a surplus . . . , [the Board] finds that making the transfer would have a material negative impact on the [DWP’s] financial condition in the year in which the transfer is to be made” (id., § 344(b)(2)). Once in the City’s General Fund, the money may be used for a variety of “government expenditures and services provided to Los Angeles taxpayers generally, such as public works, health and sanitation, community development, and police and fire services.” 3  In every year since 1971, the City has invoked its power to transfer a surplus from the DWP’s revenue fund. At first, the City annually transferred a surplus that came to approximately five percent of the DWP’s “gross operating revenue”; since 2010, the City has transferred approximately eight percent. Because this money is by definition a surplus in the DWP’s revenue fund, the City does not provide the DWP or its ratepayers with “any specific benefit, services, products or privileges” in exchange for this annual transfer. When the surplus transferred annually in recent years is broken down, it comes to $5.22 per month per DWP customer. However, the DWP does not directly pass- through the cost of this transfer of surplus to its customers with a line-item “City Transfer” charge; instead, the revenue that the City transfers as a surplus is money that would otherwise be spent by the DWP on longer-term investment projects, such as “rebuild[ing]” its “aging electricity production and distribution infrastructure.” A majority of the voters in the City has never approved the above described practice. II. Procedural Background A. The pleadings John E. Humphreville (plaintiff) is a City resident and a DWP customer. On July 25, 2018, plaintiff sued the City, the DWP, and the Board (collectively, the City defendants). The operative pleading is now the second amended verified petition and complaint, which was filed on February 15, 2019.1 1 Plaintiff’s original petition and complaint was superseded by his filing of a first amended verified petition and complaint in 4  In that pleading, plaintiff alleges that the City, the DWP and the Board annually engage in “a series of preplanned interrelated steps”—namely, (1) the DWP and the City agree that the DWP will transfer to the City a specified percentage of the DWP’s gross operating revenue, (2) both the DWP and the City budget for this transfer, (3) the DWP collects revenue from its customers, and (4) the City then invokes its power to transfer a surplus in the agreed-upon percentage. When “properly viewed together” as “a single amalgamated transaction,” plaintiff goes on to allege, the transaction “constitut[es] a tax on LADWP ratepayers” that requires voter approval.2 Because the City has not obtained the necessary voter approval, the operative pleading seeks (1) a declaration against the City defendants that the annual transfer of surplus is unconstitutional, (2) an injunction against the City defendants prohibiting further transfers of surplus until a majority of voters has approved the tax, and (3) a writ of mandate against only the City to the same effect. Plaintiff also seeks attorney fees under Code of Civil Procedure section 1021.5. B. Demurrer The City defendants demurred on two grounds—namely, (1) plaintiff’s lawsuit is effectively an untimely challenge to the City’s 2008 and 2016 rate ordinances, and (2) the City’s practice October 2018. The trial court sustained a demurrer to the first amended verified petition with leave to amend. 2 Of course, the allegation that this transaction constitutes a “tax” is a legal conclusion that we can and do disregard. (Roy Allen Slurry Seal, Inc. v. American Asphalt South, Inc. (2017) 2 Cal.5th 505 , 512 (Roy Allen).) Indeed, the propriety of this legal conclusion is the very question presented in this appeal. 5 of transferring a surplus from the DWP is not a “tax” because, under Citizens for Fair REU Rates v. City of Redding (2018) 6 Cal.5th 1 (City of Redding), “a municipality can transfer money from its electric utility to its general fund so long as the electric rate charged by the utility does not exceed the reasonable costs of service.” After a full round of briefing and a hearing at which plaintiff clarified that he was “not alleging that the rate [charged by the DWP] exceeds the cost of providing electrical service,” the trial court issued a six-page order sustaining the demurrer without leave to amend. The court cited two reasons. First, the court found that plaintiff’s challenge to the City’s transfer of a significant surplus from the DWP revenue fund every year was, at bottom, an accusation that the DWP’s “electric rates exceed the reasonable costs of [providing the] service.” Because the “gravamen” of this claim called for a “‘review’” of the DWP’s rates for electrical service, it was subject to the 120-day statute of limitations set forth in Public Utilities Code section 10004.5. And because plaintiff’s July 2018 lawsuit was filed more than 120 days after the City’s latest 2016 rate ordinance, the lawsuit was untimely. Second, and alternatively, the court held that, “if”—as plaintiff insists—the DWP’s “charges do not exceed the reasonable cost of service,” then the City’s practice of transferring a surplus from the DWP’s revenue fund each year did not constitute a “tax” in light of the City of Redding’s holding that “budgetary transfer[s]” in such a context are “not a tax.” C. Appeal Following entry of judgment, plaintiff filed this timely appeal. 6  DISCUSSION Plaintiff argues that the trial court erred in sustaining the City defendants’ demurrer to his operative pleading. Were we to conclude, as have some courts, that plaintiff remains bound by the allegations he has included in his prior verified pleading (but has omitted from the operative pleading) that the DWP was inflating its rates by “embedd[ing]” the amount of the annual surplus transfer “in the amount [the DWP] charges its customers for electric service,” then plaintiff’s lawsuit would constitute a challenge to the City’s 2016 rate ordinance that is untimely under the 120-day statute of limitations set forth in Public Utilities Code section 10004.5. (Webb v. City of Riverside (2018) 23 Cal.App.5th 244 , 256 (Webb); Pub. Util. Code, § 10004.5.) But were we to look to the operative pleading alone and were we to accept plaintiff’s repeated assertions that “the rate” the DWP charges its customers “is perfectly fine” but leaves the DWP “under-fund[ed],” then this case squarely presents the following question: If the rate that a city-owned utility charges its customers does not exceed the reasonable costs of providing that service, does the city’s ongoing practice of transferring a portion of the utility’s surplus revenue to the city’s general fund constitute a “tax” requiring voter approval under the California Constitution?3 This is a question we independently review because it arises on appeal from a demurrer (Roy Allan, supra, 2 Cal.5th at 3 Because we focus on whether the City’s conduct—as alleged in the operative complaint—constitutes a “tax” rather than whether it is time barred, we have no occasion to consider the arguments offered by plaintiff and its amicus as to why the 120- day statute of limitations is inapplicable or unfair to apply in this case. 7 p. 512), because it entails interpretation of a voter-enacted constitutional provision (Professional Engineers in California Government v. Kempton (2007) 40 Cal.4th 1016 , 1032, 1036-1037 (Professional Engineers)), and because it requires us to determine “[w]hether a statute imposes a . . . tax” subject to voter approval (California Building Industry Assn. v. State Water Resources Control Bd. (2018) 4 Cal.5th 1032 , 1046 (California Building); City of Redding, supra, 6 Cal.5th at p. 12). In light of our independent review, we may affirm on any ground stated in the demurrer “whether or not the [trial] court acted on that ground.” (Carman v. Alvord (1982) 31 Cal.3d 318 , 324.) I. The Law Governing Voter Approval of Taxes Through a series of initiatives—Proposition 13 in 1978, Proposition 218 in 1996, and Proposition 26 in 2010—California voters have “limit[ed] the authority of state and local governments to impose taxes without voter approval.” (City of Redding, supra, 6 Cal.5th at p. 10; see also id. at pp. 10-12 [cataloging history of initiatives]; Jacks v. City of Santa Barbara (2017) 3 Cal.5th 248 , 258-261 (Jacks) [same]; Schmeer v. County of Los Angeles (2013) 213 Cal.App.4th 1310 , 1318-1326 [same].) Under the law as currently written, a “local government”—which includes a “city”—may adopt a “general tax” (that is, a “tax imposed for general governmental purposes”) only if the proposed tax is “submitted to the electorate and approved by a majority vote” (Cal. Const., art. XIII C, §§ 1, subd. (a) [defining “general tax”], 2, subd. (b) [setting vote requirement]), and may adopt a “special tax” (that is, a “tax imposed for specific purposes”) only if the proposed tax is “submitted to the electorate and approved by a two-thirds vote” (id., §§ 1, subd. (d) [defining “special tax”], 2, subd. (d) [setting vote requirement]). (See also id., § 1, subd. (b) 8 [defining “local government”].) If revenue from a tax is placed in a city’s general fund without being earmarked for specific uses, it is considered a “general tax.” (Webb, supra, 23 Cal.App.5th at p. 258; Gonzalez v. City of Norwalk (2017) 17 Cal.App.5th 1295 , 1306.) Of course, these provisions only apply if the local government is seeking to levy a “tax.” (City of Redding, supra, 6 Cal.5th at p. 12 [observing that this is the first, threshold question].) Since the enactment of Proposition 26 in 2010, “tax” has been broadly defined to encompass “any levy, charge, or exaction of any kind imposed by a local government.” (Cal. Const., art. XIII C, § 1, subd. (e); City of Redding, at p. 11 [noting breadth of this definition]; City of San Buenaventura v. United Water Conservation Dist. (2017) 3 Cal.5th 1191 , 1200 (City of San Buenaventura) [same].) However, this definition has seven exceptions. One of them is pertinent here: A “tax” does not include “[a] charge imposed for a specific government service or product provided directly to the payor that is not provided to those not charged, and which does not exceed the reasonable costs to the local government of providing the service or product.” (Cal. Const., art. XIII C, § 1, subd. (e)(2).) This exception reflects the practical reality that it is only when a charge for a specific service or product exceeds its cost that the charge “‘become[s] a vehicle for generating revenue’” and, hence, is a “tax.” (California Building, supra, 4 Cal.5th at p. 1046, quoting Jacks, supra, 3 Cal.5th at p. 261.) In assessing whether the charge for a specific service or product exceeds the costs of providing it, the costs allocated to each payor must also “bear a fair or reasonable relationship to the payor’s burdens on, or the benefits received from, the governmental activity.” (Cal. Const., art. XIII C, § 1, 9 subd. (e); City of San Buenaventura, at pp. 1213-1214.) The local government bears the burden of proving that its proposed tax fits within this exception. (Cal. Const., art. XIII C, § 1, subd. (e).) II. Analysis The City’s alleged, ongoing practice of transferring a “surplus” from the DWP’s revenue fund to the City’s General Fund where, as also alleged, the rates charged by the DWP to its customers nevertheless do not exceed the costs of providing electricity to them, does not constitute a “tax” for three reasons. First, the practice does not satisfy the definition of a “tax” under the plain language of the California Constitution. Although the monthly charge that the DWP—as an entity owned by the City—assesses its customers constitutes a “charge . . . imposed by a local government” and is therefore a “tax” (Cal. Const., art. XIII C, § 1, subd. (e)), that charge falls within the exception to the definition of “tax” set forth above (1) because the amount the DWP charges its customers for electric service is “for a specific government service . . . provided directly to the payor” (here, the DWP customer) “that is not provided to” non-DWP customers, (2) because that charge “does not exceed the reasonable costs to the local government of providing th[at] service,” and (3) because that charge “bear[s] a fair or reasonable relationship to the [customer’]s burdens on, or the benefits received from, the governmental activity” because the rate is tied to each customer’s monthly usage (id., § 1, subd. (e)(2)). We know this because it is the very premise of this iteration of plaintiff’s lawsuit: In order to avoid the statute of limitations attaching to any challenge that the City’s surplus transfer makes the DWP’s rates higher than its costs, plaintiff has pled that he is “not challeng[ing] the rate schedule from which electric bills are 10 calculated” (italics added), and has further elaborated that he is “not alleging that the rate [charged by the DWP] exceeds the cost of providing electrical service.” This may place plaintiff’s lawsuit outside the statute of limitations bar set by Public Utilities Code, section 10004.5, but it simultaneously puts the DWP’s monthly charge outside the definition of a “tax.” Plaintiff urges that we should construe voter initiatives liberally. This is true (DeVita v. County of Napa (1995) 9 Cal.4th 763 , 776), but it does not empower us to ignore the plain language of the Constitution (People v. Cruz (1974) 12 Cal.3d 562 , 566; Professional Engineers, supra, 40 Cal.4th at p. 1037). Under that plain language, the DWP’s monthly charge for electric service—even though a portion of that charge eventually ends up in the City’s General Fund—is not a “tax.” Second, this conclusion is the one that best accords with the purpose behind our Constitution’s restrictions on local taxation— namely, to stop “local governments” from “extract[ing] even more revenue from California taxpayers . . . .” (Voter Information Guide, Gen. Elec. (Nov. 2, 2010) text of Prop. 26, § 1, subd. (e), p. 114, italics added; see Historical Notes, 2B West’s Ann. Cal. Const., foll. art. XIII A, § 3, p. 297.) This purpose can be implicated where a city imposes a franchise fee on a private utility, which is then passed-through to each customer as a line- item on their monthly bills; in that situation, the city is using the utility as a proxy and the monthly fee is a “tax” unless the amount of that line-item fee is reasonably related to the benefit of the franchise. (Jacks, supra, 3 Cal.5th at pp. 254, 269; accord, Zolly v. City of Oakland (2020) 47 Cal.App.5th 73 , 88 [city’s imposition of a franchise fee on a third-party waste hauler that is passed onto taxpayers may be a “tax”].) This purpose can also be 11 implicated when a city transfers money from its city-owned utility to itself when those transfers require the utility to increase what it charges its customers and, in so doing, causes the utility’s rates to exceed the costs of actually providing the pertinent service because, in that situation, the interfund transfer is having a bottom-line effect on the taxpayer. (City of Redding, supra, 6 Cal.5th at p. 15 [so noting]; cf. Howard Jarvis Taxpayers Assn. v. City of Roseville (2002) 97 Cal.App.4th 637 , 638, 648 [city’s imposition of “in-lieu franchise fee” on its city- owned utility is a “tax” under article XIII D when it increases utility rates and fee does not correlate with costs]; Howard Jarvis Taxpayers Assn. v. City of Fresno (2005) 127 Cal.App.4th 914 , 918, 927-928 [same].) But is this purpose of protecting taxpayers from hidden taxes implicated where, as plaintiff concedes here, the interfund transfer does not affect the amount the utility charges and does not otherwise cause the utility’s rates to exceed its costs? We conclude the answer is “no” because, in this situation, the “California taxpayer” is entirely unaffected by the subsequent interfund transfer. Plaintiff urges that the DWP is getting the raw end of the deal in the subsequent interfund transfer because the DWP is getting “zero” in exchange for the “surplus” that the City removes from the DWP’s revenue account each year and the transfers effectively “under-fund[] the [DWP] to the benefit of the City.” What the City is doing may be unwise management of the municipal utility, but alleged mismanagement that does not affect the taxpayers does not constitute a “tax.”4 What is more, 4 Plaintiff colorfully likens the City to a “local strongman” whose annual transfer of surplus funds is akin to the coerced payment of “protection money” by a local “shopkeeper.” 12 plaintiff’s argument would convert the constitutional protection against local taxation without voter approval into a tool for examining whether each and every transfer of funds from a city- owned utility to its city had a corresponding benefit to the utility, on a line item-by-line item basis, even if those transfers had no effect on the utility customer/taxpayer. This goes beyond the purpose of those protections. Finally, our Supreme Court’s decision in City of Redding strongly suggests that the City’s yearly transfers of surplus funds do not constitute a “tax” when they do not cause the DWP’s rates to exceed its costs of providing electricity. In City of Redding, the city transferred money from its public utility to its general fund “to compensate” the city for “the costs of services that other city departments provide[d] to the utility.” (City of Redding, supra, 6 Cal.5th at p. 4.) However, the rate the utility charged its customers “did not exceed the reasonable costs of providing electric service.” (Id. at p. 5.) In this situation, City of Redding concluded that the “interfund transfer [was] not a tax.” (Id. at p. 14.) The court explained: “The question is not whether each cost in the [utility’s] budget is reasonable. Instead, the question is whether the charge imposed on ratepayers exceeds the reasonable costs of providing the relevant service.” (Id. at p. 17.) Because the “[t]otal rate revenue was less than the concededly reasonable costs of providing electric service,” City of Indulging this analogy confirms our point. If, as plaintiff alleges here, the shopkeeper does not increase its prices and effectively “eats” the cost of the protection itself, the shopkeeper’s customer is in no way being “taxed” by the thug’s racketeering. 13 Redding concluded that the interfund transfers from the city utility to the city were not “taxes” that required voter approval. (Id. at p. 18.) As plaintiff points out, City of Redding is not identical to this case. There, the interfund transfer was to compensate the city for services it was providing to the city-owned utility, and the city-owned utility was able to pay for the transfer out of money taken from sources other than revenue from ratepayers. (City of Redding, supra, 6 Cal.5th at pp. 5-6, 15.) But neither of these distinctions render City of Redding’s reasoning inapplicable here: At its core, City of Redding held the transfers of funds from a city-owned utility to a city’s general fund are not a “tax” when “the charge imposed on ratepayers” does not “exceed[] the reasonable costs of providing the relevant service.” (Id. at p. 17.) That holding applies with full force to this case. Plaintiff offers what boil down to three categories of further arguments against this conclusion. First, plaintiff urges that the City’s annual transfer of surplus funds from the DWP to itself constitutes a “tax” under the plain language of the Constitution. Specifically, plaintiff argues that the interfund transfer does not fall into the exception for “charge[s] imposed for a specific government service or product” because the City is not providing any “specific government service or product” to the DWP (or, for that matter, to the DWP’s customers like plaintiff). For support, plaintiff weaves in the more general proposition that this charge must be a “tax” because “taxes are imposed for revenue purposes, rather than in return for a specific benefit conferred . . . .” (Sinclair Paint Co. v. State Bd. of Equalization (1997) 15 Cal.4th 866 , 874, superseded in part by Proposition 218.) With this argument, 14 plaintiff would have us look to whether the public utility got something in exchange when the City transferred the surplus funds, regardless of whether the utility’s customer felt the effects of that subsequent transfer. This is precisely the argument rejected by City of Redding, supra, 6 Cal.5th 1 , when it held that what matters is “whether the charge imposed on ratepayers exceeds the reasonable costs,” and “not whether each cost in the [utility’s] budget is reasonable.” (Id. at p. 17.) City of Redding construes the constitutional text to focus on the financial relationship between the ratepayer and the city-owned utility, and not—as plaintiff urges—between the city-owned utility and those to whom the city-owned utility transfers its revenue. We must adhere to this construction. Second, plaintiff asserts that we must look to the “economic reality of the taxed transaction” (Microsoft Corp. v. Franchise Tax Bd. (2006) 39 Cal.4th 750 , 760; accord, Commissioner v. Court Holding Co. (1945) 324 U.S. 331 , 334 [“[t]he incidence of taxation depends upon the substance of a transaction”]), which in this case shows that the City, through the four-step process alleged in the operative complaint, is taking money paid by the DWP’s customers for electric service and using it for general city services. Plaintiff invokes the age-old maxim that courts look to the substance of a transaction and not its form (Civ. Code, § 3528 [“The law respects form less than substance”]; e.g., Epstein v. Hollywood Entertainment Dist. II Bus. Improvement Dist. (2001) 87 Cal.App.4th 862 , 872 [applying maxim]), as well as the corollary “step transaction doctrine” that looks to the overall effect of a taxpayer’s transaction to see whether it has effected a taxable transfer of ownership (e.g., Shuwa Investment Corp. v. County of Los Angeles (1991) 1 Cal.App.4th 1635 , 1648-1653). 15 Plaintiff is correct that the substance or “economic reality” is what matters in assessing whether a particular series of transactions imposes a “tax.” But the City’s multi-phase machinations in no way alter the economic reality that the DWP’s customers are getting a service commensurate with its cost regardless of any behind-the-scenes transfers of funds effected by the City. Because the effect on the ratepayer is what matters (City of Redding, supra, 6 Cal.5th at p. 17), there is no “tax.” Lastly, plaintiff contends that the City has deliberately engaged in Machiavellian-esque manipulations in order to “pad[] its general fund” without first obtaining voter approval. The nefariousness or deviousness of the City’s motives, however, cannot turn what is not a “tax” into a “tax.” (E.g., Rider v. County of San Diego (1991) 1 Cal.4th 1 , 10 [“the possible improper motivations of the Legislature . . . are immaterial to questions involving the validity of such legislation”]; County of L.A. v. Superior Court (1975) 13 Cal.3d 721 , 726 [same].) That is because “good or bad faith” of a public entity in adopting a law “does not affect the practical, substantive impact of [its] actions on the electorate.” (County of Kern v. T.C.E.F., Inc. (2016) 246 Cal.App.4th 301 , 323.) * * * Because plaintiff will be bound in any future amended complaints by the same verified allegations that doom his claims now (Webb, supra, 23 Cal.App.5th at p. 256), he cannot cure these defects by amendment and the trial court properly sustained the demurrer without leave to amend. (Accord, T.H. v. Novartis Pharmaceuticals Corp. (2017) 4 Cal.5th 145 , 162.) 16  DISPOSITION The judgment is affirmed. The City defendants are entitled to their costs, if any, on appeal. CERTIFIED FOR PUBLICATION. ______________________, J. HOFFSTADT We concur: _________________________, P. J. LUI _________________________, J. ASHMANN-GERST 17

2020-11-21 03:15:48.797199+00

MARY J. HIATT, PETITIONER, v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT. Hiatt v. Commissioner Docket No. 27081. United States Board of Tax Appeals 22 B.T.A. 1245; 1931 BTA LEXIS 1979; April 21, 1931, Promulgated *1979 Where a mother makes a valid transfer of leasehold interests in her land to her daughters and the daughters later sell such interests, the income resulting from such sales is not taxable to her. H. L. Washington, Esq., for the petitioner. W. Frank Gibbs, Esq., for the respondent. LANSDON *1245 The respondent has asserted a deficiency in income tax for the year 1922 in the amount of $15,124.12. The only issue is whether profits realized from the sale of certain oil and gas leases on land owned in fee by the petitioner should be included in her gross income for the taxable year. *1246 FINDINGS OF FACT. The petitioner is an individual residing at Winfield, Kans. On the death of her husband, Jesse W. Hiatt, prior to the taxable year, she became the sole owner as legatee under a will of certain lands in Cowley County, Kansas, known as the Hiatt Ranch. The petitioner executed a commercial oil and gas lease on October 15, 1922, to Lulu B. Hiatt, covering lot 13 in 7-31-5, Cowley County, Kansas, which was recorded in Book 24, page 370. This oil and gas lease was sold by Lulu B. Hiatt to the Selby Oil & Gas Company for $10,450 and*1980 Lulu B. Hiatt delivered title to the purchaser by executing an assignment of the oil and gas lease on November 7, 1922, which was recorded in Book 25, page 573. The entire proceeds from this sale were reported as income by Lulu B. Hiatt in her income tax return for the year 1922. The lease had no value on October 15, 1922. The petitioner executed a commercial oil and gas lease to Nora A. Hiatt, her daughter, on lots 10 and 23 in 18-31-8, Cowley County, Kansas, which was recorded by the register of deeds in Book 24, page 425. This lease was sold by Nora A. Hiatt to the Hull Company for $24,000. Nora A. Hiatt delivered title to the purchaser by an assignment dated the 27th day of November, 1922, which was recorded in Book 27, page 108. The entire proceeds from this sale were reported by Nora A. Hiatt in her income tax return for the year 1922. This lease had no value on November 1, 1922. The petitioner, on November 1, 1922, executed a commercial oil and gas lease to Nora A. Hiatt on the south half of the northwest quarter of 8-31-8, Cowley County, Kansas, which was recorded in Book 24, page 477. This lease was sold to the White Eagle Oil & Refining Company for $4,000 by*1981 Nora A. Hiatt. She delivered title of the purchase by an assignment dated the 5th day of December, 1922, and recorded by the register of deeds for Cowley County, Kansas, in Book 27, page 88. The entire proceeds from this sale were reported by Nora A. Hiatt in her income tax return for the year 1922. The petitioner, on the 1st day of November, 1922, executed a commercial oil and gas lease to Nora A. Hiatt covering the southwest quarter of the northeast quarter of 11-31-7, Cowley County, Kansas, which was recorded by the register of deeds in Book 24, page 369. This lease was sold to the White Eagle Oil & Refining Company for $5,000 by Nora A. Hiatt, who delivered title to the purchaser by assignment dated the 7th day of November, 1922, which was recorded by the register of deeds for Cowley County, Kansas, in book 25, *1247 page 599. The entire proceeds from this sale were reported by Nora A. Hiatt in her income-tax return for the year 1922. The petitioner, on October 25, 1922, executed a commercial oil and gas lease to Nora A. Hiatt, on lot 8 in 7-31-8, Cowley County, Kansas, which was recorded by the register of deeds in Book 24, page 328. This lease was sold to the*1982 National Refining Company for $5,000 by Nora A. Hiatt, who delivered title to the purchaser by an assignment dated the 13th day of November, 1922, and recorded by the register of deeds in Book 27, age 50. The entire proceeds from this sale were reported by Nora A. Hiatt in her income tax return for the year 1922. All of the leases executed as above set out and in evidence here as petitioner's exhibits were delivered to the lessees and by them duly recorded as provided by law. The respondent admits that at the time these leases were made all were of merely nominal value. Upon audit of petitioner's return for the taxable year, the respondent added to her income the amount of $48,850 representing the sales price of the several leases as set forth above and determined the deficiency here in controversy. OPINION. LANSDON: The respondent has determined the deficiency here involved on the theory that the leases in question were the property of this petitioner and that, therefore, any income resulting from the sales thereof is taxable to her. The petitioner contends that by the execution of certain instruments in the form of oil and gas leases to her daughters prior to the sale*1983 of such leases to operating companies her daughters Nora A. Hiatt and Lulu B. Hiatt became the absolute owners of such leases and, therefore, the recipients of any income resulting from the sales thereof. Lulu B. and Nora A. Hiatt are the daughters of the petitioner and each was more than 21 years of age at the dates material here. Under the laws of Kansas each was competent to enter into a binding contract with her mother. The leases in controversy are in the ordinary form of oil and gas leases used in Kansas and evidence the customary considerations as their basis. In the circumstances here the consideration recited in the instruments under the laws of Kansas is presumed to be adequate. Revised Statutes of Kansas, ch. 16, sec. 107; . The assignments conform to the trade custom of the oil business and the laws of Kansas. If the subject matter of the various transfers was an interest in real estate, all legal requirements *1248 have been satisfied. There is an evidentiary writing, reciting consideration, and each instrument has been recorded in the books of the county in which the property is located. The presumption*1984 of delivery raised by such registration is sufficient to establish the fact of transfer unless it is rebutted by proof. ; ; ; . If nothing more than personal property was involved, proffer, acceptance and delivery is amply evidenced by the instruments in question and the assignments thereof to operating companies by petitioner's daughters. In the light of evidence here it is hardly necessary to discuss the respondent's contention that there was no valid gift of the properties in question. There are many decided cases in the reports of the Kansas Supreme Court affirming the validity and the irrevocability of gifts made in similar circumstances. In the case of ; , the Court said: Where a father executes a deed for valuable lands to his daughter as a gift and delivers it unconditionally to his son for her, the acceptance of the deed will be presumed, and it will ordinarily take effect from the time of the delivery to the son. This rule is very generally applied*1985 in cases of voluntary gifts and advancements by parents to their children. * * * The same rule has been applied in this state to the case of delivery and acceptance of a chattel mortgage. Citing . In , the Board held that profit from the sale of a lease assigned by a husband to his wife resulted in no taxable income to the husband. That decision is controlling in the circumstances herein. Cf. ; and . The material evidence adduced at the hearing consists of copies of the five leases in question and the assignments thereof by lessees to the operating companies, all duly certified by the register of deeds of Cowley County, Kansas, as true copies of the instruments recorded in the books of that office. Counsel for respondent concedes that identification of such documents so certified is complete, but contends that they are not admissible, or, if admissible, are not competent to prove the transfers therein set forth. Unless impeached by adverse testimony, *1986 we think such evidence is competent and material for the purposes for which it was offered. Decision will be entered under Rule 50.

2021-03-19 05:08:54.116742+00

https://www.nebraska.gov/apps-courts-epub/public/viewOpinion?docId=N00007635PUB

Nebraska Supreme Court Online Library www.nebraska.gov/apps-courts-epub/ 03/19/2021 12:08 AM CDT - 499 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports STATE v. RUSSELL Cite as 308 Neb. 499 State of Nebraska, appellee, v. Stephen Russell, appellant. ___ N.W.2d ___ Filed February 26, 2021. No. S-20-283. 1. Effectiveness of Counsel: Appeal and Error. Appellate review of a claim of ineffective assistance of counsel is a mixed question of law and fact. 2. ____: ____. When reviewing a claim of ineffective assistance of coun- sel, an appellate court reviews the factual findings of the lower court for clear error. 3. ____: ____. With regard to the questions of counsel’s performance or prejudice to the defendant as part of the two-pronged test articulated in Strickland v. Washington, 466 U.S. 668 , 104 S. Ct. 2052 , 80 L. Ed. 2d 674 (1984), an appellate court reviews such legal determinations inde- pendently of the lower court’s decision. 4. Postconviction: Evidence. In an evidentiary hearing on a motion for postconviction relief, the trial judge, as the trier of fact, resolves con- flicts in the evidence and questions of fact. 5. Postconviction: Constitutional Law. Postconviction relief is a very narrow category of relief, available only to remedy prejudicial constitu- tional violations that render the judgment void or voidable. 6. Postconviction: Effectiveness of Counsel: Appeal and Error. To establish a right to postconviction relief based on a claim of ineffec- tive assistance of counsel, the defendant has the burden, in accordance with Strickland v. Washington, 466 U.S. 668 , 104 S. Ct. 2052 , 80 L. Ed. 2d 674 (1984), to show that counsel’s performance was deficient; that is, counsel’s performance did not equal that of a lawyer with ordi- nary training and skill in criminal law. Next, the defendant must show that counsel’s deficient performance prejudiced the defense in his or her case. 7. Effectiveness of Counsel: Presumptions. The two prongs of the test for ineffective assistance of counsel may be addressed in either order,  - 500 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports STATE v. RUSSELL Cite as 308 Neb. 499 and the entire ineffectiveness analysis should be viewed with a strong presumption that counsel’s actions were reasonable. 8. Effectiveness of Counsel: Proof. To show that counsel’s performance was deficient, a defendant must show that counsel’s performance did not equal that of a lawyer with ordinary training and skill in criminal law. 9. Effectiveness of Counsel: Proof: Words and Phrases. To show preju- dice, the defendant must demonstrate a reasonable probability that but for counsel’s deficient performance, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. 10. Postconviction: Effectiveness of Counsel: Proof: Appeal and Error. In order to obtain a new direct appeal as postconviction relief, the defend­ant must show, by a preponderance of the evidence, that the defendant was denied his or her right to appeal due to the negligence or incompetence of counsel, and through no fault of his or her own. 11. Effectiveness of Counsel: Appeal and Error. A lawyer who disregards specific instructions from the defendant to file a notice of appeal acts in a manner that is professionally unreasonable. 12. ____: ____. Counsel is not per se deficient by failing to automati- cally appeal. 13. ____: ____. For cases where the defendant neither instructs counsel to file an appeal nor asks that an appeal not be taken, the U.S. Supreme Court has adopted a reasonableness inquiry for the deficiency prong that considers whether counsel consulted with the defendant and, if not, whether that failure to consult was deficient performance. 14. Postconviction: Effectiveness of Counsel: Presumptions: Appeal and Error. After a trial, conviction, and sentencing, if counsel deficiently fails to file or perfect an appeal after being so directed by the criminal defendant, prejudice will be presumed and counsel will be deemed inef- fective, thus entitling the defendant to postconviction relief. 15. Effectiveness of Counsel: Appeal and Error. It is a critical require- ment that counsel’s deficient performance must actually cause the for- feiture of the defendant’s appeal. 16. ____: ____. It is fundamental to a claim of ineffective assistance of counsel based on failure to appeal that the defendant directed that such appeal be filed. 17. Evidence: Appeal and Error. Where competent evidence supports the district court’s findings, the appellate court will not substitute its factual findings for those of the district court. 18. Postconviction: Evidence: Witnesses. In an evidentiary hearing for postconviction relief, the postconviction trial judge, as the trier of fact, resolves conflicts in evidence and questions of fact, including witness credibility and the weight to be given a witness’ testimony.  - 501 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports STATE v. RUSSELL Cite as 308 Neb. 499 19. Testimony: Depositions. The weight to be accorded to testimony given by deposition, as compared to that given orally in court, must depend, not upon its form, but upon all the circumstances affecting its credibility. 20. Testimony: Evidence. While testimony is a kind of evidence, a defend­ ant who relies upon his or her testimony with little or no supporting documentary evidence does so at the risk of nonpersuasion. 21. Trial: Witnesses: Evidence. Triers of fact have the right to test the credibility of witnesses by their self-interest and to weigh it against the evidence, or the lack thereof. 22. Trial: Evidence. Evidence not directly contradicted is not necessarily binding on the triers of fact, and may be given no weight where it is inherently improbable, unreasonable, self-contradictory, or inconsistent with facts or circumstances in evidence. Appeal from the District Court for Douglas County: J Russell Derr, Judge. Affirmed. Sean M. Conway, of Dornan, Troia, Howard, Breitkreutz & Conway, P.C., L.L.O., for appellant. Douglas J. Peterson, Attorney General, and Matthew Lewis for appellee. Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ. Freudenberg, J. NATURE OF CASE In an appeal from a motion for postconviction relief, the defendant challenges the district court’s denial of his motion for postconviction relief after an evidentiary hearing. The defendant assigns that the district court erred in finding that trial counsel was not ineffective when trial counsel failed to file a direct appeal, allegedly at the direction of the defendant. We affirm. BACKGROUND Pursuant to a plea agreement, Stephen Russell pled no contest and was convicted of murder in the second degree,  - 502 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports STATE v. RUSSELL Cite as 308 Neb. 499 a Class IB felony. Russell was sentenced to 60 to 70 years’ imprisonment. No direct appeal was filed. Russell filed a motion for postconviction relief. In the operative amended motion, Russell sought a new direct appeal, alleging that Russell’s trial counsel had failed to file a direct appeal on Russell’s behalf, despite Russell’s requests to do so. The district court held an evidentiary hearing on the amended motion. Russell’s Deposition The only evidence presented by Russell at the evidentiary hearing was his deposition, which was entered and marked as an exhibit. The deposition was conducted with the intention that it be in lieu of live testimony at the evidentiary hearing. Russell testified in his deposition that it was his recollection that his trial counsel discussed only the likely sentence with him, but did not discuss his right to appeal. Russell testified that leading up to Russell’s plea, trial counsel told him that he would get no more than 70 years’ imprisonment as his maxi- mum sentence, but that trial counsel would try to get Russell a term of imprisonment of 20 to 40 years or 30 to 50 years. Russell testified that he told trial counsel he was not “‘trying to do 30 years in prison,” and that trial counsel told him, “‘Well, you’re not going to do 30 years. I promise you you’re not.’” Russell then decided to enter a plea. Russell testified that he quickly learned from other inmates of his right to a direct appeal within 30 days. Russell testified he immediately began attempts to contact trial counsel in order to ask him to file an appeal on Russell’s behalf. Russell testified that he called trial counsel the day after his sentencing, leaving an “urgent voicemail.” Russell testified that he also timely sent trial counsel a notarized letter asking trial counsel to file a direct appeal and to provide Russell with a copy of the discovery and his bill of exceptions. Russell did not separately introduce a copy of this letter at the evidentiary hearing, but a copy of the letter was attached as an exhibit to the deposition. That attachment did not include  - 503 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports STATE v. RUSSELL Cite as 308 Neb. 499 a photocopy of the envelope the letter was allegedly mailed in. Russell asserted in his deposition testimony that he had put the letter in the mailslot at his facility, but he did not spe- cifically testify that he had placed the letter in an envelope and properly addressed and stamped it. Russell presented no other documentary evidence or testimony that the letter was properly addressed, stamped, and mailed. And there was no evidence presented of official negligence relating to the prison mail system. Russell testified that he again attempted to call trial coun- sel after the letter was sent and that he was “pretty sure” he “left two voicemails,” but knew “for sure” he had left one. Although Russell indicated that inmate calls are documented, he did not present such records in relation to his alleged calls to trial counsel. Russell testified that he had no contact with trial counsel since his sentencing hearing on January 19, 2016. Trial Counsel’s Deposition The State submitted the deposition of trial counsel. The attorney for the State, inexplicably, was not present at trial counsel’s deposition, so Russell’s postconviction counsel did all of the questioning. Trial counsel confirmed Russell’s claim that he did not discuss the right to appeal with Russell before Russell entered his plea. Nor did he do so before Russell was sentenced. Trial counsel testified that it is not his practice to discuss the right to appeal prior to the entry of a plea or at the time of sentencing, unless a client specifically asks, and that he did not advise Russell of his right to appeal, because the only avenue available to Russell was an appeal for excessive sentence. Trial counsel testified that, typically, for clients convicted pursuant to a plea bargain agreement, only if the client sends a letter or calls him after sentencing to inquire about an appeal does he send a form letter explaining the 30-day timeframe to appeal and also explaining that excessive sentences are routinely denied by the Nebraska Court of Appeals.  - 504 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports STATE v. RUSSELL Cite as 308 Neb. 499 Trial counsel testified that he did not recall receiving any telephone calls or written correspondence from Russell within the 30-day window after his sentencing. At one point, Russell’s postconviction counsel asked, “Is it possible that . . . Russell had called and left a message to speak with you during the 30-day period between when his sentencing was and when it expired, or do you know [for] sure?” Trial counsel responded, “Sure, it’s possible.” Trial Record There was not a trial record prepared in this case. A praecipe for a bill of exceptions was filed in August 2016, but a bill of exceptions was not prepared or filed. The only bill of excep- tions requested and prepared in this case is the one this court presently has that covers the evidentiary hearing held by the district court on February 5, 2020. Order Denying Postconviction Relief The district court denied Russell’s motion for postconvic- tion relief. The court noted in its order that in the plea dia- logue between the court and Russell, the court had specifically advised Russell that he had the right to appeal the conviction, but the court did not advise Russell that the appeal must be filed within 30 days of sentencing. The district court found that Russell failed to establish a nonfrivolous issue to appeal, because the one potential issue to appeal would be that the sentence was excessive. The court noted that Russell was aware the court was not likely to impose a prison sentence of more than 70 years, that the sentence he received did not exceed that number, and that the sentence was well below the statutory maximum sentence of life imprisonment. The court additionally found that Russell failed to prove he informed trial counsel that he was interested in an appeal. The court observed there was no evidence, other than Russell’s deposition testimony, that a letter directing trial counsel to file an appeal was actually mailed. It also relied  - 505 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports STATE v. RUSSELL Cite as 308 Neb. 499 on trial counsel’s testimony that he never received any oral or written communication from Russell. ASSIGNMENT OF ERROR Russell assigns that the district court erred in denying Russell’s amended motion for postconviction relief, because counsel was ineffective by failing to file a direct appeal at Russell’s request within the 30-day timeframe of Russell’s sentencing. STANDARD OF REVIEW [1-3] Appellate review of a claim of ineffective assistance of counsel is a mixed question of law and fact. 1 When review- ing a claim of ineffective assistance of counsel, an appellate court reviews the factual findings of the lower court for clear error. 2 With regard to the questions of counsel’s performance or prejudice to the defendant as part of the two-pronged test articulated in Strickland v. Washington, 3 an appellate court reviews such legal determinations independently of the lower court’s decision. 4 [4] In an evidentiary hearing on a motion for postconviction relief, the trial judge, as the trier of fact, resolves conflicts in the evidence and questions of fact. 5 ANALYSIS [5,6] Russell seeks postconviction relief in the form of a new direct appeal, based on allegations of ineffective assist­ ance of trial counsel. Postconviction relief is a very nar- row category of relief, available only to remedy prejudicial 1 State v. Dalton, 307 Neb. 465 , 949 N.W.2d 752 (2020). 2 Id. 3 Strickland v. Washington, 466 U.S. 668 , 104 S. Ct. 2052 , 80 L. Ed. 2d 674 (1984). 4 State v. Dalton, supra note 1 . 5 Id.  - 506 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports STATE v. RUSSELL Cite as 308 Neb. 499 constitutional violations that render the judgment void or void- able. 6 To establish a right to postconviction relief based on a claim of ineffective assistance of counsel, the defendant has the burden, in accordance with Strickland, 7 to show that coun- sel’s performance was deficient; that is, counsel’s perform­ance did not equal that of a lawyer with ordinary training and skill in criminal law. 8 Next, the defendant must show that coun- sel’s deficient performance prejudiced the defense in his or her case. 9 [7-9] The two prongs of the test for ineffective assistance of counsel may be addressed in either order, and the entire inef- fectiveness analysis should be viewed with a strong presump- tion that counsel’s actions were reasonable. 10 To show that counsel’s performance was deficient, a defendant must show that counsel’s performance did not equal that of a lawyer with ordinary training and skill in criminal law. 11 To show preju- dice, the defendant must demonstrate a reasonable probability that but for counsel’s deficient performance, the result of the proceeding would have been different. 12 A reasonable prob- ability is a probability sufficient to undermine confidence in the outcome. 13 [10] In order to obtain a new direct appeal as postconviction relief, the defendant must show, by a preponderance of the evi- dence, that the defendant was denied his or her right to appeal due to the negligence or incompetence of counsel, and through no fault of his or her own. 14 6 Id. 7 Strickland v. Washington, supra note 3 . 8 State v. Dalton, supra note 1 . 9 Id. 10 State v. Weathers, 304 Neb. 402 , 935 N.W.2d 185 (2019). 11 State v. Assad, 304 Neb. 979 , 938 N.W.2d 297 (2020). 12 State v. Weathers, supra note 10 . 13 Id. 14 State v. Curtright, 262 Neb. 975 , 637 N.W.2d 599 (2002).  - 507 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports STATE v. RUSSELL Cite as 308 Neb. 499 [11-13] On the deficiency prong, the U.S. Supreme Court has said that a lawyer who disregards specific instructions from the defendant to file a notice of appeal acts in a manner that is professionally unreasonable. 15 But the U.S. Supreme Court has rejected a bright-line rule that counsel is per se deficient by failing to automatically file a notice of appeal unless the defendant specifically instructs counsel not to. 16 Instead, for cases where the defendant neither instructs counsel to file an appeal nor asks that an appeal not be taken, the Court adopted in Roe v. Flores-Ortega 17 a reasonableness inquiry for the defi- ciency prong that considers whether counsel consulted with the defendant and, if not, whether that failure to consult was deficient performance. [14] On the prejudice prong of the ineffective assistance analysis seeking a new direct appeal, the U.S. Supreme Court has said that when counsel’s constitutionally deficient perform­ ance deprives a defendant of an appeal that the defendant otherwise would have taken, such a denial of a critical stage of the judicial proceedings is one of the extreme failures of performance that demands a presumption of prejudice. 18 We have similarly articulated that after a trial, conviction, and sen- tencing, if counsel deficiently fails to file or perfect an appeal after being so directed by the criminal defendant, prejudice will be presumed and counsel will be deemed ineffective, thus entitling the defendant to postconviction relief. 19 [15] But the U.S. Supreme Court has explained, with regard to the prejudice prong in an ineffective assistance claim seek- ing a new direct appeal, that it is a “critical requirement that counsel’s deficient performance must actually cause the 15 See Roe v. Flores-Ortega, 528 U.S. 470 , 120 S. Ct. 1029 , 145 L. Ed. 2d 985 (2000). 16 See id. 17 Id. 18 See id. See, also, State v. Assad, supra note 11 . 19 State v. Trotter, 259 Neb. 212 , 609 N.W.2d 33 (2000).  - 508 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports STATE v. RUSSELL Cite as 308 Neb. 499 forfeiture of the defendant’s appeal.” 20 Thus, in Peguero v. United States, 21 the Court held that the defendant did not sustain his burden to demonstrate he was prejudiced by trial counsel’s deficient failure to inform him of his right to appeal, when the defendant had actual knowledge of the right to appeal and did not request that trial counsel file an appeal. Discussing Peguero in Flores-Ortega, the Court indicated that in such cir- cumstances, an inquiry into whether counsel was deficient for failing to consult with the defendant as to the right to appeal is unnecessary. 22 To the extent Russell’s motion attempted to allege that trial counsel’s performance was deficient by failing to advise him of the right to appeal, he was not prejudiced by this failure, because he admitted he had actual knowledge from other sources of the right to appeal within 30 days. Russell’s post- conviction claim correctly focused instead on trial counsel’s alleged failure to timely file an appeal despite Russell’s alleged request that trial counsel do so. [16,17] It is fundamental to a claim of ineffective assist­ ance of counsel based on failure to appeal that the defendant directed that such appeal be filed. 23 Here, the court found that Russell did not direct trial counsel to file a direct appeal. Regardless of the form of the evidence presented on that question of fact, 24 we review the district court’s findings for clear error. 25 Where competent evidence supports the district court’s findings, the appellate court will not substitute its factual findings for those of the district court. 26 The district 20 Roe v. Flores-Ortega, supra note 15 , 528 U.S. at 484 . 21 Peguero v. United States, 526 U.S. 23 , 119 S. Ct. 961 , 143 L. Ed. 2d 18 (1999). 22 Roe v. Flores-Ortega, supra note 15 . 23 See State v. Trotter, supra note 19 . 24 See Quarles v. Fuqua Industries, Inc., 504 F.2d 1358 (10th Cir. 1974). 25 State v. Dalton, supra note 1 . 26 Fitzke v. City of Hastings, 255 Neb. 46 , 582 N.W.2d 301 (1998).  - 509 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports STATE v. RUSSELL Cite as 308 Neb. 499 court’s finding that Russell did not direct trial counsel to file a direct appeal is supported by competent evidence and is not clearly wrong. [18,19] In an evidentiary hearing for postconviction relief, the postconviction trial judge, as the trier of fact, resolves conflicts in evidence and questions of fact, including witness credibility and the weight to be given a witness’ testimony. 27 The weight to be accorded to testimony given by deposi- tion, as compared to that given orally in court, must depend, not upon its form, but upon all the circumstances affecting its credibility. 28 [20-22] While testimony is a kind of evidence, a defendant who relies upon his or her testimony with little or no supporting documentary evidence does so at the risk of nonpersuasion. 29 Triers of fact have the right to test the credibility of witnesses by their self-interest and to weigh it against the evidence, or the lack thereof. 30 Evidence not directly contradicted is not necessarily binding on the triers of fact, and may be given no weight where it is inherently improbable, unreasonable, self-contradictory, or inconsistent with facts or circumstances in evidence. 31 The district court, in evaluating Russell’s deposition tes- timony in lieu of live testimony, found Russell not credible in his claims of having left voicemails and sending a let- ter to trial counsel requesting that trial counsel file a direct appeal. The court weighed Russell’s self-interest in mak- ing these assertions against the lack of evidence supporting them and the surrounding circumstances suggesting that no such communications were actually made. While trial counsel 27 State v. Dalton, supra note 1 . 28 Daniel A. Morris, Nebraska Trials § 21:21 (2020). 29 See Burgardt v. Burgardt, 304 Neb. 356 , 934 N.W.2d 488 (2019). See, also, State v. Dalton, supra note 1 . 30 Burgardt v. Burgardt, supra note 29 . 31 Id.  - 510 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports STATE v. RUSSELL Cite as 308 Neb. 499 acknowledged that it was “possible” Russell left a voicemail requesting he file an appeal, trial counsel generally did not recall such a request, via voicemail or letter, and trial counsel did not indicate a reason why he would have no memory of such a request had it in fact been made. At the same time, Russell failed to produce any record of the alleged telephone call, despite the availability of call logs. Russell also failed to produce testimony or documentation that the letter attached to his deposition had been properly addressed, stamped, and mailed, and he gave no explanation for this failure. Based on the record before us, we conclude that the district court did not clearly err in finding that Russell did not direct trial counsel to file a direct appeal. Because the court correctly found trial counsel was not asked to file an appeal, trial coun- sel was not deficient in allegedly not doing so. In view of this disposition, we need not consider prejudice. CONCLUSION For the foregoing reasons, we affirm the judgment of the district court. Affirmed.

2021-03-19 05:08:55.437257+00

https://www.nebraska.gov/apps-courts-epub/public/viewOpinion?docId=N00007634PUB

Nebraska Supreme Court Online Library www.nebraska.gov/apps-courts-epub/ 03/19/2021 12:08 AM CDT - 482 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports STATE v. LOWMAN Cite as 308 Neb. 482 State of Nebraska, appellee, v. Theardise K. Lowman, Jr., appellant. ___ N.W.2d ___ Filed February 26, 2021. No. S-20-240. 1. Constitutional Law: Search and Seizure: Motions to Suppress: Appeal and Error. In reviewing a trial court’s ruling on a motion to suppress based on a claimed violation of the Fourth Amendment, an appellate court applies a two-part standard of review. Regarding histori- cal facts, an appellate court reviews the trial court’s findings for clear error, but whether those facts trigger or violate Fourth Amendment protections is a question of law that an appellate court reviews indepen- dently of the trial court’s determination. 2. Convictions: Evidence: Appeal and Error. In reviewing a criminal conviction for a sufficiency of the evidence claim, whether the evidence is direct, circumstantial, or a combination thereof, the standard is the same: An appellate court does not resolve conflicts in the evidence, pass on the credibility of witnesses, or reweigh the evidence; such matters are for the finder of fact. The relevant question for an appellate court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential ele- ments of the crime beyond a reasonable doubt. 3. Effectiveness of Counsel: Constitutional Law: Statutes: Records: Appeal and Error. Whether a claim of ineffective assistance of trial counsel can be determined on direct appeal presents a question of law, which turns upon the sufficiency of the record to address the claim without an evidentiary hearing or whether the claim rests solely on the interpretation of a statute or constitutional requirement. 4. Effectiveness of Counsel: Appeal and Error. In reviewing claims of ineffective assistance of counsel on direct appeal, an appellate court decides only whether the undisputed facts contained within the record are sufficient to conclusively determine whether counsel did or did not provide effective assistance and whether the defendant was or was not prejudiced by counsel’s alleged deficient performance.  - 483 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports STATE v. LOWMAN Cite as 308 Neb. 482 5. Pretrial Procedure: Trial: Evidence: Appeal and Error. Where there has been a pretrial ruling regarding the admissibility of evidence, a party must make a timely and specific objection to the evidence when it is offered at trial in order to preserve any error for appellate review. 6. Trial: Evidence: Motions to Suppress: Waiver: Appeal and Error. The failure to object to evidence at trial, even though the evidence was the subject of a previous motion to suppress, waives the objection, and a party will not be heard to complain of the alleged error on appeal. 7. Appeal and Error. An objection, based on a specific ground and prop- erly overruled, does not preserve a question for appellate review on some other ground not specified at trial. 8. Constitutional Law: Police Officers and Sheriffs: Search and Seizure. The first tier of police-citizen encounters involves no restraint of the liberty of the citizen involved, but, rather, the voluntary coopera- tion of the citizen is elicited through noncoercive questioning. This type of contact does not rise to the level of a seizure and therefore is outside the realm of Fourth Amendment protection. 9. Constitutional Law: Criminal Law: Police Officers and Sheriffs: Investigative Stops: Search and Seizure: Appeal and Error. The sec- ond tier of police-citizen encounters, the investigatory stop, as defined by the U.S. Supreme Court in Terry v. Ohio, 392 U.S. 1 , 88 S. Ct. 1868 , 20 L. Ed. 2d 889 (1968), is limited to brief, nonintrusive detention dur- ing a frisk for weapons or preliminary questioning. This type of encoun- ter is considered a seizure sufficient to invoke Fourth Amendment safe- guards, but because of its less intrusive character requires only that the stopping officer have specific and articulable facts sufficient to give rise to reasonable suspicion that a person has committed or is committing a crime. 10. Constitutional Law: Criminal Law: Police Officers and Sheriffs: Arrests: Search and Seizure: Probable Cause. The third type of police-citizen encounters, arrests, is characterized by highly intrusive or lengthy search or detention. The Fourth Amendment requires that an arrest be justified by probable cause to believe that a person has com- mitted or is committing a crime. 11. Constitutional Law: Search and Seizure. A seizure in the Fourth Amendment context occurs only if, in view of all the circumstances sur- rounding the incident, a reasonable person would have believed that he or she was not free to leave. 12. Police Officers and Sheriffs: Search and Seizure. A seizure does not occur simply because a law enforcement officer approaches an indi- vidual and asks a few questions or requests permission to search an area, provided the officer does not indicate that compliance with his or her request is required.  - 484 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports STATE v. LOWMAN Cite as 308 Neb. 482 13. Police Officers and Sheriffs: Investigative Stops: Probable Cause. Whether a police officer has a reasonable suspicion based on sufficient articulable facts depends on the totality of the circumstances and must be determined on a case-by-case basis. 14. Police Officers and Sheriffs: Probable Cause. In determining whether a police officer acted reasonably, it is not the officer’s inchoate or unpar- ticularized suspicion or hunch that will be given due weight, but the specific reasonable inferences which the officer is entitled to draw from the facts in light of the officer’s experience. 15. Constitutional Law: Warrantless Searches: Search and Seizure. Warrantless searches and seizures are per se unreasonable under the Fourth Amendment, subject to a few established and well-delineated exceptions. 16. Warrantless Searches. The warrantless search exceptions Nebraska has recognized include: (1) searches undertaken with consent, (2) searches under exigent circumstances, (3) inventory searches, (4) searches of evidence in plain view, and (5) searches incident to a valid arrest. 17. Warrantless Searches: Motor Vehicles. Nebraska has recognized that among the established exceptions to the warrant requirement is the auto­ mobile exception. 18. Weapons: Motor Vehicles: Words and Phrases. A weapon is con- cealed on or about the person if it is concealed in such proximity to the driver of an automobile as to be convenient of access and within imme- diate physical reach. 19. Effectiveness of Counsel: Proof: Words and Phrases. Generally, to prevail on a claim of ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668 , 104 S. Ct. 2052 , 80 L. Ed. 2d 674 (1984), the defendant must show that his or her counsel’s performance was deficient and that this deficient performance actually prejudiced the defendant’s defense. 20. Effectiveness of Counsel: Postconviction: Records: Appeal and Error. When a defendant’s trial counsel is different from his or her counsel on direct appeal, the defendant must raise on direct appeal any issue of trial counsel’s ineffective performance which is known to the defendant or is apparent from the record. Otherwise, the issue will be procedurally barred in a subsequent postconviction proceeding. 21. Effectiveness of Counsel: Appeal and Error. The fact that an inef- fective assistance of counsel claim is raised on direct appeal does not necessarily mean that it can be resolved on direct appeal. 22. ____: ____. Assignments of error on direct appeal regarding inef- fective assistance of trial counsel must specifically allege deficient performance.  - 485 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports STATE v. LOWMAN Cite as 308 Neb. 482 23. Effectiveness of Counsel: Presumptions. The entire analysis of a claim of ineffective assistance of counsel should be viewed with a strong pre- sumption that counsel’s actions were reasonable. 24. Trial: Effectiveness of Counsel: Appeal and Error. Trial counsel is afforded due deference to formulate trial strategy and tactics, and an appellate court will not second-guess trial counsel’s reasonable strategic tactics when reviewing claims of ineffective assistance of counsel. Appeal from the District Court for Sarpy County: Stefanie A. Martinez, Judge. Affirmed. Gregory A. Pivovar for appellant. Douglas J. Peterson, Attorney General, and Jordan Osborne for appellee. Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ. Cassel, J. INTRODUCTION Theardise K. Lowman, Jr., appeals from convictions, pursu- ant to a jury verdict, for possession of a controlled substance and two counts of carrying a concealed weapon. He argues that the district court erred in overruling his motion to sup- press evidence, that the evidence regarding a machete in his vehicle was insufficient to convict him of carrying a concealed weapon, and that he received ineffective assistance of counsel. Finding no merit to any of his claims, we affirm the district court’s judgment. BACKGROUND Facts On April 8, 2019, at approximately 5:04 a.m., Officer James Murray was on duty and patrolling in the area of a carwash. The carwash was open at the time, but signs posted on the building prohibit loitering. Murray observed a vehicle backed into one of the wash bays. He believed a person was sitting in the driver’s seat, and he did not see anybody outside of the  - 486 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports STATE v. LOWMAN Cite as 308 Neb. 482 vehicle. Murray parked his cruiser and watched to see if the occupant would wash the vehicle or leave. After 5 minutes of not seeing or hearing activity, Murray approached the vehicle. He noticed that the vehicle and the concrete floor were dry. As Murray approached the passen- ger’s side of the vehicle, Lowman started to leave the vehicle. Murray asked if Lowman would move to the front of the vehicle and speak with Murray, and Lowman agreed to do so. Murray looked quickly inside the vehicle before speaking with Lowman. Murray observed a car stereo on the front passen- ger’s seat with numerous wires protruding from the back. He also observed what appeared to be a metal pipe—which could be used for smoking controlled substances—sticking between the center console and the driver’s seat. Murray noticed that Lowman was holding a torch-style lighter. Lowman told Murray that he had been visiting a friend in the area and chose the carwash to “do some thinking and sort through some things.” Lowman stated that he had been at the carwash for 1 to 2 hours. Murray noticed that Lowman was “fidgety with his hands,” moving around a bit on his feet, speaking with a rapid speech pattern, and speak- ing at great length when answering simple questions. Murray suspected that Lowman had engaged in drug use at the car- wash. Murray asked whether Lowman had any weapons, and Lowman answered that he did not have a weapon on his per- son but volunteered that he had a machete inside the vehicle, “tucked down by the center console.” Murray asked dispatch to send another officer. After backup arrived, Murray informed Lowman that he was being detained and that Lowman and his vehicle were going to be searched. Murray located a black zippered bag attached to Lowman’s waistband which contained a digital scale, a weight used for “zeroing out” the scale, unused jewelers’ bags that are commonly used for storing controlled substances, and two jewelers’ bags that contained an off-white crystalline substance which appeared to be methamphetamine. A search  - 487 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports STATE v. LOWMAN Cite as 308 Neb. 482 of Lowman’s vehicle uncovered a machete, a pair of brass knuckles in the center console, and a black eyeglass case that contained a broken glass methamphetamine pipe. An officer testified that he could see the machete’s handle “sticking out from in between the passenger’s seat.” The State charged Lowman with possession of methamphet- amine, carrying a concealed weapon (two counts), and posses- sion of drug paraphernalia. Motion to Suppress In September 2019, Lowman filed a motion to suppress all evidence obtained by the police as a result of the detention, arrest, questioning, and search of Lowman along with the search of his vehicle. Lowman alleged that there was no reason- able suspicion or probable cause to search him or his vehicle and that he was questioned in violation of his Miranda rights. The motion was set to be heard on September 27, but Lowman did not appear for the hearing. Lowman’s counsel withdrew the motion. In October, Lowman filed another motion to suppress, which contained the same allegations as the earlier motion. It was heard the day before trial was set to begin. The court overruled the motion to suppress. It found that Murray had reasonable suspicion to conduct the initial stop of Lowman. The court found that Lowman was not using the carwash for its intended purpose, that signs were posted pro- hibiting loitering, and that criminal activity had occurred there previously. It further found that Lowman voluntarily agreed to speak with Murray and that Lowman admitted to smok- ing marijuana in the past and to having a machete concealed in his vehicle. The court stated that Murray’s observation of the torch-style lighter and an object appearing to be some- thing in which suspects can hide controlled substances, along with Lowman’s behavior, nonsensical answers, and change in demeanor when asked if he had smoked methamphetamine, contributed to Murray’s determination of probable cause for arrest. Although Lowman was not advised of his Miranda  - 488 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports STATE v. LOWMAN Cite as 308 Neb. 482 rights, the court noted that no questioning occurred after arrest. The court agreed that Murray had probable cause to arrest Lowman; accordingly, it found no Fourth Amendment viola- tion when Murray searched Lowman pursuant to that arrest. Trial The court conducted a jury trial. Prior to the introduction of evidence, Lowman’s counsel stated, “I do want to renew my motion to suppress the detention, arrest, questioning, and search of my client as well as the search of my client’s vehicle . . . and essentially just renew the motion to suppress that I refiled with the Court that was just ruled on yesterday.” The court stated: “Okay, so that motion will be overruled, but I assume that you’re renewing your motion for purposes of appeal . . . should it get there. So, that issue will be preserved.” On many—but not all—occasions, Lowman objected based on the motion to suppress when the State offered exhibits into evidence. The jury returned a verdict of guilty as to possession of a controlled substance and as to both counts of carrying a concealed weapon, but not guilty as to the drug paraphernalia charge. The court subsequently placed Lowman on probation for 2 years. Lowman promptly appealed, and we moved this case to our docket. 1 ASSIGNMENTS OF ERROR Lowman assigns two errors related to the evidence. He alleges that the court erred in overruling his motion to sup- press evidence and that the evidence was insufficient to support the verdict. Lowman also assigns that his trial counsel provided inef- fective assistance. One assignment alleges, “The defendant received ineffective assistance of counsel when defendant’s counsel filed a last minute motion to suppress and was 1 See Neb. Rev. Stat. § 24-1106 (3) (Cum. Supp. 2020).  - 489 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports STATE v. LOWMAN Cite as 308 Neb. 482 ill-prepared and was unable to brief the issues for the court.” The other alleges, “The defendant received ineffective assist­ ance of counsel when despite the urgings of the defendant[,] counsel would not call witnesses who would have provided corroboration that the defendant was in the area of the car wash for some time and had a lawful purpose for being there.” STANDARD OF REVIEW [1] In reviewing a trial court’s ruling on a motion to sup- press based on a claimed violation of the Fourth Amendment, an appellate court applies a two-part standard of review. Regarding historical facts, an appellate court reviews the trial court’s findings for clear error, but whether those facts trig- ger or violate Fourth Amendment protections is a question of law that an appellate court reviews independently of the trial court’s determination. 2 [2] In reviewing a criminal conviction for a sufficiency of the evidence claim, whether the evidence is direct, circum- stantial, or a combination thereof, the standard is the same: An appellate court does not resolve conflicts in the evidence, pass on the credibility of witnesses, or reweigh the evidence; such matters are for the finder of fact. The relevant question for an appellate court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. 3 [3,4] Whether a claim of ineffective assistance of trial coun- sel can be determined on direct appeal presents a question of law, which turns upon the sufficiency of the record to address the claim without an evidentiary hearing or whether the claim rests solely on the interpretation of a statute or constitutional requirement. 4 In reviewing claims of ineffective assistance 2 State v. Briggs, ante p. 84, 953 N.W.2d 41 (2021). 3 State v. Stack, 307 Neb. 773 , 950 N.W.2d 611 (2020). 4 State v. Theisen, 306 Neb. 591 , 946 N.W.2d 677 (2020).  - 490 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports STATE v. LOWMAN Cite as 308 Neb. 482 of counsel on direct appeal, an appellate court decides only whether the undisputed facts contained within the record are sufficient to conclusively determine whether counsel did or did not provide effective assistance and whether the defend­ ant was or was not prejudiced by counsel’s alleged defi- cient performance. 5 ANALYSIS Motion to Suppress We start by addressing the State’s waiver argument. The State contends that Lowman waived his suppression claim to some of the evidence—specifically, those items found as a result of the search of his person—when he failed to renew an objection to that evidence based on his motion to suppress. We agree. [5-7] Where there has been a pretrial ruling regarding the admissibility of evidence, a party must make a timely and specific objection to the evidence when it is offered at trial in order to preserve any error for appellate review. 6 The failure to object to evidence at trial, even though the evidence was the subject of a previous motion to suppress, waives the objection, and a party will not be heard to complain of the alleged error on appeal. 7 Furthermore, an objection, based on a specific ground and properly overruled, does not preserve a ques- tion for appellate review on some other ground not specified at trial. 8 At numerous times during the trial, Lowman’s coun- sel objected and renewed the motion to suppress when the State offered exhibits into evidence. However, counsel did not impose an objection to specifically renew the motion to 5 State v. Lang, 305 Neb. 726 , 942 N.W.2d 388 (2020), cert. denied ___ U.S. ___, 141 S. Ct. 415 , 208 L. Ed. 2d 119 . 6 State v. Oldson, 293 Neb. 718 , 884 N.W.2d 10 (2016). 7 Id. 8 Id.  - 491 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports STATE v. LOWMAN Cite as 308 Neb. 482 suppress when the State offered into evidence the digital scale, the torch-style lighter, bags containing the white crystalline substance, and the weight contained in the black bag found on Lowman. Instead, Lowman’s counsel imposed objections based on such matters as foundation, authentication, and chain of custody. Nor did counsel renew an objection based on the motion to suppress when a forensic chemist testified that the bags contained methamphetamine. The objection and renewal of the motion to suppress at the beginning of trial did not pre- serve the issue for review when no objection was made during trial to the receipt of items of evidence found during a search. Accordingly, we conclude Lowman failed to preserve the sup- pression issue with regard to the evidence found during the search of his person. Before analyzing Lowman’s interactions with law enforce- ment, we recount the three tiers of police-citizen encounters under Nebraska law and the law regarding seizures in the con- text of the Fourth Amendment. [8] The first tier of police-citizen encounters involves no restraint of the liberty of the citizen involved, but, rather, the voluntary cooperation of the citizen is elicited through noncoer­cive questioning. 9 This type of contact does not rise to the level of a seizure and therefore is outside the realm of Fourth Amendment protection. 10 [9] The second tier, the investigatory stop, as defined by the U.S. Supreme Court in Terry v. Ohio, 11 is limited to brief, nonintrusive detention during a frisk for weapons or preliminary questioning. 12 This type of encounter is consid- ered a seizure sufficient to invoke Fourth Amendment safe- guards, but because of its less intrusive character requires only that the stopping officer have specific and articulable facts 9 State v. Saitta, 306 Neb. 499 , 945 N.W.2d 888 (2020). 10 Id. 11 Terry v. Ohio, 392 U.S. 1 , 88 S. Ct. 1868 , 20 L. Ed. 2d 889 (1968). 12 See State v. Saitta, supra note 9 .  - 492 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports STATE v. LOWMAN Cite as 308 Neb. 482 sufficient to give rise to reasonable suspicion that a person has committed or is committing a crime. 13 [10] The third type of police-citizen encounters, arrests, is characterized by highly intrusive or lengthy search or deten- tion. 14 The Fourth Amendment requires that an arrest be justi- fied by probable cause to believe that a person has committed or is committing a crime. 15 [11,12] Plainly, not every police-citizen encounter rises to the level of a seizure. A seizure in the Fourth Amendment con- text occurs only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he or she was not free to leave. 16 In addition to situations where an officer directly tells a suspect that he or she is not free to go, circumstances indicative of a seizure may include the threaten- ing presence of several officers, the display of a weapon by an officer, some physical touching of the citizen’s person, or the use of language or tone of voice indicating the compliance with the officer’s request might be compelled. 17 A seizure does not occur simply because a law enforcement officer approaches an individual and asks a few questions or requests permission to search an area, provided the officer does not indicate that com- pliance with his or her request is required. 18 We first address Lowman’s initial encounter with Murray. Lowman claims the initial approach was unjustified and unnecessary because he was in a place open to the public and Murray saw no illegal activity. The State responds that no level of suspicion was needed, because the initial contact was a consensual encounter rather than a Terry stop. We agree with the State. 13 Id. 14 Id. 15 Id. 16 Id. 17 Id. 18 State v. Hartzell, 304 Neb. 82 , 933 N.W.2d 441 (2019).  - 493 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports STATE v. LOWMAN Cite as 308 Neb. 482 The interaction started with noncoercive questioning. Murray did not activate his cruiser’s overhead lights or sirens prior to approaching Lowman’s vehicle on foot. As Murray approached, Lowman began to exit his vehicle. Murray did not direct Lowman to do so. Murray did not display a weapon or show coercive authority. His communication with Lowman was casual, rather than authoritative. We conclude that this interaction amounted to a first-tier police-citizen encoun- ter, and thus, it was outside the protections of the Fourth Amendment. [13,14] The encounter developed into a tier-two investiga- tory stop when Murray advised Lowman that he was being detained. An investigatory stop of a person requires that the stopping officer have specific and articulable facts sufficient to give rise to reasonable suspicion that a person has com- mitted or is committing a crime. 19 Whether a police officer has a reasonable suspicion based on sufficient articulable facts depends on the totality of the circumstances and must be determined on a case-by-case basis. 20 In determining whether a police officer acted reasonably, it is not the officer’s incho- ate or unparticularized suspicion or hunch that will be given due weight, but the specific reasonable inferences which the officer is entitled to draw from the facts in light of the offi- cer’s experience. 21 Murray had reasonable suspicion to believe a crime had occurred based on the totality of the circumstances. In addi- tion to observing Lowman’s loitering, Murray observed in Lowman’s vehicle a car stereo with wires extending out on the passenger seat and a metal pipe protruding from the space between the driver’s seat and the center console. Based on Murray’s training and experience, he believed the pipe, along with the torch-style lighter held by Lowman, could be used 19 State v. Saitta, supra note 9 . 20 Id. 21 Id.  - 494 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports STATE v. LOWMAN Cite as 308 Neb. 482 for smoking controlled substances. Further, Lowman admit- ted to being a marijuana user, was fidgety, spoke rapidly, and provided some answers that did not make sense. He also admit- ted to having a machete “tucked down” in his vehicle, which Murray believed to constitute a concealed weapon. Murray had a reasonable suspicion based on specific and articulable facts that Lowman had committed a crime. We next turn to the warrantless search of Lowman’s vehicle. First, we recall the governing law. Then, we apply it to the facts presented here. [15-17] Warrantless searches and seizures are per se unrea- sonable under the Fourth Amendment, subject to a few estab- lished and well-delineated exceptions. 22 The warrantless search exceptions Nebraska has recognized include: (1) searches undertaken with consent, (2) searches under exigent circum- stances, (3) inventory searches, (4) searches of evidence in plain view, and (5) searches incident to a valid arrest. 23 This court has recognized that among the established exceptions to the warrant requirement is the automobile exception. 24 The automobile exception applies when a vehicle is readily mobile and there is probable cause to believe that contraband or evi- dence of a crime will be found in the vehicle. 25 The automobile exception applies here. Lowman’s vehicle was capable of being driven, and Murray observed what he believed to be a pipe for ingesting narcotics. His belief, though later shown to be incorrect, was bolstered by Lowman’s admission to being a marijuana user and possession of a torch-style lighter commonly used for smoking controlled substances. Further, Lowman informed Murray that he had a machete in the vehicle, but Murray did not readily see the machete. Viewed objectively, these facts supplied probable 22 Id. 23 Id. 24 Id. 25 State v. Lang, supra note 5 .  - 495 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports STATE v. LOWMAN Cite as 308 Neb. 482 cause to believe contraband or evidence of a crime would be found inside the vehicle. Because the district court’s findings of historical fact were not clearly erroneous and we find no Fourth Amendment vio- lation, we conclude the court properly overruled Lowman’s motion to suppress. Sufficiency of Evidence Lowman next contends that there was insufficient evidence to support the verdict. The argument in his brief mentions only the conviction concerning the machete’s being a concealed weapon. Because an alleged error must be specifically argued in order to be considered, 26 we limit our analysis accordingly. In connection with Lowman’s argument, he advocates for application of the “accused’s rule” when reviewing circum- stantial evidence. Recently, in State v. Stack, 27 we rejected an invitation to return to the accused’s rule. At oral argument, Lowman’s counsel forthrightly conceded that Stack—released after counsel filed Lowman’s appellate brief—controlled. For the same reasons explained in Stack, we yet again decline to apply the accused’s rule. [18] The sufficiency analysis is driven by the elements of the offense and our standard of review. The offense of carry- ing a concealed weapon is committed when a person “carries a weapon or weapons concealed on or about his or her person, such as a handgun, a knife, brass or iron knuckles, or any other deadly weapon.” 28 Under our standard of review, we consider whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found that the machete was “concealed on or about [Lowman’s] person,” as provided in § 28-1202. 29 A weapon is concealed on or about the person if it is concealed in such proximity to 26 See State v. Ferrin, 305 Neb. 762 , 942 N.W.2d 404 (2020). 27 See State v. Stack, supra note 3 . 28 Neb. Rev. Stat. § 28-1202 (1)(a) (Reissue 2016). 29 See State v. Senn, 295 Neb. 315 , 888 N.W.2d 716 (2016).  - 496 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports STATE v. LOWMAN Cite as 308 Neb. 482 the driver of an automobile as to be convenient of access and within immediate physical reach. 30 Here, the State adduced sufficient evidence regarding the machete to support the concealed weapon conviction. The machete, located in the vehicle’s center console area, was eas- ily accessible and within Lowman’s immediate physical reach. In urging that the machete was not concealed, Lowman relies heavily on an officer’s testimony that the machete’s handle was visible from outside the passenger-side door. But Murray did not see the machete when he looked in the vehicle. Viewing the evidence in the light most favorable to the State, we con- clude the evidence supported the conviction for carrying a concealed weapon. Ineffective Assistance of Counsel [19] Finally, Lowman assigns that trial counsel, who was different from appellate counsel, provided ineffective assist­ ance. Generally, to prevail on a claim of ineffective assistance of counsel under Strickland v. Washington, 31 the defendant must show that his or her counsel’s performance was deficient and that this deficient performance actually prejudiced the defendant’s defense. 32 [20,21] When a defendant’s trial counsel is different from his or her counsel on direct appeal, the defendant must raise on direct appeal any issue of trial counsel’s ineffective perform­ ance which is known to the defendant or is apparent from the record. Otherwise, the issue will be procedurally barred. 33 But the fact that an ineffective assistance of counsel claim is raised on direct appeal does not necessarily mean that it can be resolved on direct appeal. 34 The determining factor is 30 Id. 31 Strickland v. Washington, 466 U.S. 668 , 104 S. Ct. 2052 , 80 L. Ed. 2d 674 (1984). 32 State v. Lang, supra note 5 . 33 Id. 34 Id.  - 497 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports STATE v. LOWMAN Cite as 308 Neb. 482 whether the record is sufficient to adequately review the ques- tion. 35 The record is sufficient if it establishes either that trial counsel’s performance was not deficient, that the appellant will not be able to establish prejudice, or that trial counsel’s actions could not be justified as a part of any plausible trial strategy. 36 We turn to Lowman’s two specific allegations of deficient performance. [22] First, Lowman claims counsel provided ineffective assistance in several respects related to the motion to suppress. According to Lowman’s assignment, counsel was ill prepared and failed to brief the issues. But this allegation is broad and conclusory. Assignments of error on direct appeal regarding ineffective assistance of trial counsel must specifically allege deficient performance. 37 Lowman failed to allege what case law should have been provided or how it would have per- suaded the court to grant the motion to suppress. We conclude these allegations of ineffective assistance of counsel were not made with sufficient particularity. Lowman’s claim that counsel filed the motion to suppress at the last minute is refuted by the record. A motion containing identical allegations was filed nearly 4 weeks earlier, but coun- sel was unable to pursue it due to Lowman’s failure to appear at the hearing. Lowman additionally claims that the late filing deprived him of the ability to assemble evidence and testimony to refute the statements of the officers at trial. But he had the opportunity to attack the credibility of the officers during the jury trial, and he does not inform us of what evidence he would have offered. This aspect of his claim lacks the specificity required to allege deficient conduct. Lowman’s second claim asserts that counsel should have called as witnesses two individuals. One was a friend whom Lowman had dropped off in the area at around 3 a.m. The 35 Id. 36 Id. 37 State v. Mrza, 302 Neb. 931 , 926 N.W.2d 79 (2019).  - 498 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports STATE v. LOWMAN Cite as 308 Neb. 482 other was a clerk at a convenience store with whom Lowman spoke after dropping off his friend. Lowman wished to have these individuals testify that he was not in the area for an unlawful purpose. [23,24] We are mindful that the entire analysis of a claim of ineffective assistance of counsel should be viewed with a strong presumption that counsel’s actions were reasonable. 38 Further, trial counsel is afforded due deference to formu- late trial strategy and tactics, and an appellate court will not second-guess trial counsel’s reasonable strategic tactics when reviewing claims of ineffective assistance of counsel. 39 Here, whatever knowledge these individuals had about what Lowman was doing 2 hours prior to the encounter with law enforcement is of little relevance, particularly when considering that he was found to be in possession of methamphetamine and concealed weapons and charged accordingly. We conclude that counsel did not perform deficiently in declining to call these individ­ uals as witnesses. CONCLUSION We conclude that the court properly overruled Lowman’s motion to suppress and that evidence concerning the machete supported the conviction for carrying a concealed weapon. With regard to Lowman’s assignments of ineffective coun- sel that were alleged with sufficient particularity, the record either refuted the allegations or showed that trial coun- sel’s performance was not deficient. We affirm the district court’s judgment. Affirmed. 38 State v. Oliveira-Coutinho, 304 Neb. 147 , 933 N.W.2d 825 (2019). 39 State v. Lang, supra note 5 .

2021-03-19 05:08:56.817028+00

https://www.nebraska.gov/apps-courts-epub/public/viewOpinion?docId=N00007636PUB

Nebraska Supreme Court Online Library www.nebraska.gov/apps-courts-epub/ 03/19/2021 12:08 AM CDT - 511 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports STATE v. HILL Cite as 308 Neb. 511 State of Nebraska, appellee, v. Teon D. Hill, appellant. ___ N.W.2d ___ Filed February 26, 2021. No. S-20-429. 1. Criminal Law: Motions for New Trial: Evidence: Appeal and Error. A de novo standard of review applies when an appellate court is review- ing a trial court’s dismissal of a motion for a new trial under Neb. Rev. Stat. § 29-2102 (2) (Reissue 2016) without conducting an eviden- tiary hearing. 2. Criminal Law: Motions for New Trial: Evidence. Neb. Rev. Stat. § 29-2102 (Reissue 2016) sets out what evidence must accompany a motion for new trial. Appeal from the District Court for Douglas County: Kimberly Miller Pankonin, Judge. Affirmed. Gregory A. Pivovar for appellant. Douglas J. Peterson, Attorney General, and Kimberly A. Klein for appellee. Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, and Papik, JJ. Miller-Lerman, J. NATURE OF CASE Teon D. Hill appeals the order of the district court for Douglas County which dismissed his motion for new trial based on newly discovered evidence. We affirm.  - 512 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports STATE v. HILL Cite as 308 Neb. 511 STATEMENT OF FACTS Following a jury trial in 2016, Hill was convicted of first degree murder and two counts of possession of a deadly weapon by a prohibited person. The district court sentenced Hill to imprisonment for life for the murder conviction and to 15 to 20 years’ imprisonment for each of the weapon convictions. The court ordered the sentences for the weapon convictions to be served concurrently with one another and consecutively to the sentence for the murder conviction. We affirmed Hill’s convic- tions and sentences in a decision filed January 19, 2018. State v. Hill, 298 Neb. 675 , 905 N.W.2d 668 (2018). On January 16, 2019, Hill filed a pro se motion that he titled “Motion for New Trial.” In the motion, Hill stated that he was moving for a new trial based on “errors in the proceedings.” He referred to the new trial statutes, Neb. Rev. Stat. §§ 29-2101 through 29-2103 (Reissue 2016), and stated that the statutes allow a defendant to bring a motion for new trial based upon newly discovered evidence within 5 years of the date of the verdict. Section 29-2101 provides that a defendant may move for a new trial on certain specified grounds, including “(5) newly discovered evidence material for the defendant which he or she could not with reasonable diligence have discovered and produced at the trial.” Section 29-2103(3) provides that for most of the grounds listed in § 29-2101, the motion must be filed within 10 days after the verdict, but § 29-2103(4) pro- vides that a motion for new trial based on § 29-2101(5) “shall be filed within a reasonable time after the discovery of the new evidence” and generally “cannot be filed more than five years after the date of the verdict.” The motion filed by Hill was 58 pages long, with 60 pages of attachments. The motion contained a narrative consisting of over 100 paragraphs of allegations. The first several paragraphs contained general allegations of various “irregularities” in the proceedings, as well as “ineffective assistance of counsel” and “prosecutorial misconduct” that, Hill contended, entitled him to a new trial. He also claimed that “the verdict cannot  - 513 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports STATE v. HILL Cite as 308 Neb. 511 be sustained by sufficient evidence and is contrary to the law.” Hill alleged that “the material for his defense is newly discovered evidence that could not have been discovered, with reasonable diligence, prior to the time of his trial.” He further alleged that “all facts in this motion was [sic] only discovered once he was able to examine the documents which was [sic] received on March 10th 2018 long after his trial.” The remain- ing paragraphs included numerous allegations, some of which he grouped in categories, including “due process rights were violated,” “irregularities and misconduct before, during and after the proceedings,” and “[a]ctual innocent [sic] claim[s].” None of the attachments were “in the form of affidavits, depo- sitions, or oral testimony,” in violation of § 29-2102(1). On February 18, 2019, the district court entered an order in which it directed the State to file a response to Hill’s motion for new trial within 90 days. Hill objected to the order and ­contended that the new trial statutes do not allow for a response by the State before the court has decided whether the motion warrants a hearing and that instead, the statutes provide that the motion is to be served on the prosecuting attorney only after the court has determined that a hearing on the motion should be granted. The court overruled Hill’s objection and reasoned that the new trial statutes did not prohibit the court from seek- ing a response from the State before it ruled on whether Hill’s motion set forth sufficient facts to warrant a hearing. The court stated that its order was not made pursuant to procedure out- lined in the statutes, but instead pursuant to its “inherent power to request legal argument from a party on a pending motion before it.” On May 21, 2019, the State filed a response in which it argued that Hill’s motion failed to set forth sufficient facts and should therefore be dismissed without a hearing pursu- ant to § 29-2102(2). The State contended that Hill’s motion could “be viewed as a complaint as to how his trial was handled” and noted that “the vast majority of paragraphs in the motion start out with the phrase ‘there was irregularities and  - 514 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports STATE v. HILL Cite as 308 Neb. 511 misconduct in the proceedings.’” The State further contended that there was not “any newly discovered evidence mentioned in the motion,” and it argued that to the extent Hill referred to any sort of evidence, such evidence (1) would be inadmissible at trial based on hearsay or relevance, (2) could have been discovered at the time of trial, and (3) did not materially affect substantial rights of Hill because it would not have changed the result of the case. The State further contended that to the extent Hill set forth a claim of actual innocence, such a claim must be asserted in a postconviction motion rather than in a motion for new trial. About 1 year later, on May 14, 2020, the court entered an order in which it dismissed Hill’s motion for new trial. The court stated that Hill sought a new trial based on newly dis- covered evidence pursuant to § 29-2101(5) and that he also appeared to seek relief pursuant to a claim of actual inno- cence. The court’s order replicated the argument in the State’s response with minor revisions. Hill appeals the district court’s order which dismissed his motion. Hill, who appeared pro se in the district court, is rep- resented by counsel on appeal. ASSIGNMENTS OF ERROR Hill claims, restated and renumbered, that the district court erred when it (1) failed to treat his motion as a postconvic- tion motion and to consider his claims, including those of actual innocence, as postconviction claims; (2) ordered the State to respond to his motion and 1 year later used the State’s response, with minimal modifications, as its order overruling his motion; and (3) dismissed his motion for new trial based on newly discovered evidence without an evidentiary hearing. STANDARD OF REVIEW [1] A de novo standard of review applies when an appel- late court is reviewing a trial court’s dismissal of a motion for a new trial under § 29-2102(2) without conducting an  - 515 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports STATE v. HILL Cite as 308 Neb. 511 evidentiary hearing. See State v. Cross, 297 Neb. 154 , 900 N.W.2d 1 (2017). ANALYSIS In his brief on appeal, Hill asserts that several allegations in his motion set forth proper claims for new trial based on newly discovered evidence and that the district court erred when it dismissed his motion without an evidentiary hearing. However, Hill appears to concede that most of the numerous allegations set forth in his motion were more appropriate for a motion for postconviction relief. He therefore contends that the district court should have treated his motion as a motion for postconviction relief and considered whether his motion set forth postconviction claims that warranted an eviden- tiary hearing. Hill further contends that, to the extent the motion was properly treated as a motion for new trial based on newly discovered evidence pursuant to § 29-2101(5), the district court erred when it ordered the State to respond to his motion before the court had determined whether an evidentiary hearing was warranted. In this regard, Hill argues that the order was improper because it was not authorized by the new trial stat- utes. He also contends that the court “abrogat[ed]” its decision­ making authority to the State because it used most of the language from the State’s response to draft its order dismissing his motion. As discussed below, we resolve Hill’s claims of error as follows: First, we determine that rather than treating Hill’s motion as a postconviction motion, the district court did not err when it treated his motion consistent with the man- ner by which Hill had denominated the pleading, that is as a motion for new trial based on newly discovered evidence. We next determine, based on our de novo review, that because Hill failed to provide the supporting documents required by § 29-2102(1), the court properly dismissed the motion pur- suant to § 29-2102(2). Finally, because our de novo review  - 516 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports STATE v. HILL Cite as 308 Neb. 511 indicates that the district court did not err when it dismissed Hill’s motion, we need not address the contentions Hill makes regarding the process used by the district court except to com- ment on the lengthy amount of time the court had the motion under submission. District Court Did Not Err When It Treated Hill’s Motion as Motion for New Trial Rather Than Motion for Postconviction Relief. Hill claims that the district court erred when it failed to treat his pleading as a motion for postconviction relief and failed to review his allegations, including those of actual innocence, as postconviction claims. He argues that the court should have looked to the substance of his allegations rather than the form of the motion. We conclude that the district court did not err when it treated his motion consistent with the manner by which Hill denominated the pleading, that is as a motion for new trial based on newly discovered evidence. Hill asserts in his brief that the motion he filed is “basically a motion for Post-conviction relief with a few issues of Motion for a New Trial, newly discovered evidence thrown in and a healthy dose of issues that lean toward [his] actual innocence.” Brief for appellant at 32. With regard to his allegations of actual innocence, Hill argues that because his motion “is more or less in the form of ” a postconviction motion, his “claims of actual innocence are more or less brought in a postconviction action.” Id. at 38-39. The motion filed by Hill was titled “Motion for New Trial” and referenced the new trial statutes, including § 29-2101(5) regarding motions for trial based on newly discovered evi- dence and § 29-2103(4), which provides the time for filing a motion for new trial based on newly discovered evidence. The motion did not include citation to the postconviction statutes, Neb. Rev. Stat. § 29-3001 et seq. (Reissue 2016), and it did not include an express assertion that Hill was seeking relief under such statutes or that he had filed his motion within the time allowed for filing a motion for postconviction relief.  - 517 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports STATE v. HILL Cite as 308 Neb. 511 Despite the fact that Hill explicitly characterized his motion as a motion for new trial, he argues on appeal that the district court should have ignored his characterization, reviewed the motion for its substance, and treated the motion as a motion for postconviction relief. Hill relies on State v. Bellamy, 264 Neb. 784 , 652 N.W.2d 86 (2002), to argue that a “post judg- ment motion must be reviewed based on the relief sought and not based on its title.” Brief for appellant at 31. We reject Hill’s argument. In State v. Bellamy, supra, we considered a jurisdictional question regarding whether the 30-day period to file a notice of appeal was terminated by a motion that the appellant titled “Motion for Reconsideration.” See Neb. Rev. Stat. § 25-1912 (Cum. Supp. 2020). Under the relevant statutes, the running of the time for filing a notice of appeal may be terminated by the filing of certain motions, including, inter alia, a motion to alter or amend a judgment under Neb. Rev. Stat. § 25-1329 (Reissue 2016). The question in State v. Bellamy, supra, therefore was whether the motion titled “Motion for Reconsideration” should be treated as a motion to alter or amend a judgment for pur- poses of determining the time for filing a notice of appeal. We reasoned that “[a] determination as to whether a motion, however titled, should be deemed a motion to alter or amend a judgment depends upon the contents of the motion, not its title,” and we held that “in order to qualify for treatment as a motion to alter or amend a judgment, a motion must be filed no later than 10 days after the entry of judgment, as required under § 25-1329, and must seek substantive alteration of the judgment.” State v. Bellamy, 264 Neb. at 789 , 652 N.W.2d at 90 . The holding in State v. Bellamy, supra, should be read as specifically related to determining whether a motion may be considered a motion to alter or amend a judgment for purposes of determining the time to file a notice of appeal. It should not be read as a general requirement that a court must review every filing to address whether the party filed the correct type  - 518 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports STATE v. HILL Cite as 308 Neb. 511 of motion or whether the party should have filed a different motion to achieve the result the party seeks. Hill simply reads State v. Bellamy, supra, too broadly. We further note that in this case, it was not merely the title which indicated that Hill’s filing should be reviewed as a motion for new trial. The motion contained various references to the new trial statutes and various allegations which indicated that Hill was seeking a new trial based on newly discovered evidence pursuant to § 29-2101(5). Therefore, the substance of the motion supported the title “Motion for New Trial” and specified the relevant statutory authority for such a motion. Although the motion also included allegations that might have been better suited to a motion for postconviction relief, the district court was not obligated to read such allegations to con- tradict Hill’s characterization of the type of motion he wished to file or the authority for the relief he sought. Although we conclude that the district court properly treated Hill’s motion as a motion for new trial rather than as a motion for postconviction relief, we note the following: First, a motion for postconviction relief is required to be verified, see § 29-3001(1), and Hill’s motion is not verified and there- fore would properly have been dismissed for that reason. Second, to the extent Hill contends that his motion contains both claims appropriate for a motion for new trial and claims appropriate for a motion for postconviction relief, we note that § 29-3003 provides that the postconviction remedy “is not intended to be concurrent with any other remedy exist- ing in the courts of this state” and that “[a]ny proceeding filed under the provisions of sections 29-3001 to 29-3004 which states facts which if true would constitute grounds for relief under another remedy shall be dismissed without prejudice.” See, also, State v. Harris, 292 Neb. 186 , 191, 871 N.W.2d 762 , 766 (2015) (“postconviction remedy is clearly a cumulative remedy that may not be pursued concurrently with any other remedy existing under state law, including the remedies sought in a motion for new trial”). Thus, Hill’s  - 519 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports STATE v. HILL Cite as 308 Neb. 511 postconviction claims, if any, were not subject to consideration in this action. We conclude that the district court did not err when it treated Hill’s motion as a motion for new trial based on newly discov- ered evidence rather than treating it as a motion for postconvic- tion relief. We reject this assignment of error, and we turn to Hill’s assignments of error regarding the district court’s dispo- sition of the motion for new trial. Hill Failed to Include Required Supporting Documents With Motion for New Trial and Therefore Dismissal of Motion Without Evidentiary Hearing Was Warranted. Hill claims that the district court erred when it dismissed his motion for new trial without an evidentiary hearing and, further, that the court made procedural errors in the manner by which it reached this conclusion. Hill specifically asserts that the court erred when it ordered the State to respond to his motion and later when it used the State’s response as the basis for its order dismissing the motion. On appeal from an order dismissing a motion for new trial without an evidentiary hear- ing pursuant to § 29-2102(2), we apply a de novo standard of review to such dismissal. See State v. Cross, 297 Neb. 154 , 900 N.W.2d 1 (2017). If our de novo review indicates that the motion was properly dismissed, an error in the procedure by which the district court reached its decision will not have prejudiced Hill and would not require reversal of the dis- missal. Therefore, we conduct our de novo review of the dis- missal before addressing Hill’s claims related to the procedure employed by the district court. As we discussed above, Hill appears to concede that most of the allegations in his motion are more appropriately addressed in a motion for postconviction relief than in a motion for new trial based on newly discovered evidence. However, Hill asserts on appeal that several allegations in his motion set forth grounds for new trial based on newly discovered evidence and urges us to consider them on that basis.  - 520 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports STATE v. HILL Cite as 308 Neb. 511 [2] Section 29-2101 provides several grounds for a new trial, and specifically, subsection (5) provides that a new trial may be granted based on “newly discovered evidence material for the defendant which he or she could not with reasonable diligence have discovered and produced at the trial.” Procedural require- ments for motions for new trial authorized by § 29-2101 are set forth in §§ 29-2102 and 29-2103. Section 29-2103(2) provides that a “motion for a new trial shall state the grounds under section 29-2101 which are the basis for the motion and shall be supported by evidence as provided in section 29-2102.” Section 29-2102(1) in turn provides in part that the “ground set forth in subdivision (5) of section 29-2101 shall be supported by evidence of the truth of the ground in the form of affidavits, depositions, or oral testimony.” Reading these statutes together, we have stated that § 29-2102 “sets out what evidence must accompany a motion for new trial.” State v. Cross, 297 Neb. at 158 , 900 N.W.2d at 4. Section 29-2102(2) sets forth the circumstances under which a court must grant a hearing on a motion for new trial, but it also provides that “[i]f the motion for new trial and supporting documents fail to set forth sufficient facts, the court may, on its own motion, dismiss the motion without a hearing.” (Emphasis supplied.) With regard to a motion for new trial pursuant to § 29-2101(5), the motion and supporting documents must set forth sufficient facts to establish that there is “newly discov- ered evidence material for the defendant which he or she could not with reasonable diligence have discovered and produced at the trial.” Therefore, in this case, dismissal without an evidentiary hearing would be appropriate if Hill’s motion and support- ing documents did not set forth sufficient facts to establish that there was newly discovered evidence, that such evidence was material to Hill’s defense, and that Hill could not with reasonable diligence have discovered and produced the evi- dence at his trial. Reviewing the allegations in Hill’s motion de novo, in particular the allegations that Hill argues on  - 521 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports STATE v. HILL Cite as 308 Neb. 511 appeal would support a new trial, we determine that Hill did not file a motion and supporting documents that set forth suf- ficient facts. We have reviewed Hill’s allegations and determine that each of Hill’s claims of grounds for new trial set forth in the motion fails in at least one of these respects—that is, to the extent Hill alleged sufficient facts to show that the claim involved newly discovered evidence, he did not adequately allege facts suf- ficient to show that such evidence was material to his defense or to show that he could not with reasonable diligence have discovered and produced the evidence at his trial. However, our de novo review indicates a more basic reason that dismissal without an evidentiary hearing was appropri- ate in this case. As noted above, supporting documents of the sort set forth in § 29-2102 must accompany a motion for new trial. See State v. Cross, 297 Neb. 154 , 900 N.W.2d 1 (2017). Hill filed a 58-page motion with 60 pages of attachments. The attachments included, inter alia, letters from counsel and police reports. The attachments to the motion did not include “evidence of the truth of the ground in the form of affidavits, depositions, or oral testimony” as required by § 29-2102(1) to support a motion for new trial based on § 29-2101(5). The requirement for evidence of the truth of the asserted grounds is not trivial; it is designed, inter alia, to demonstrate the strength of the claim, which in turn determines entitlement to a hearing. Thus, regardless of whether the allegations in the motion itself set forth a narrative to establish grounds for a new trial based on newly discovered evidence, it is clear that upon filing, Hill failed to accompany the motion with the type of evidence required by § 29-2102(1) to support the motion. On this basis alone, dismissal of Hill’s motion without an evidentiary hear- ing was appropriate. We conclude that dismissal of Hill’s motion for new trial based on newly discovered evidence was appropriate under § 29-2102(2), because he failed to include required support- ing documents in the form of affidavits, depositions, or oral  - 522 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports STATE v. HILL Cite as 308 Neb. 511 testimony setting forth facts to establish the grounds alleged in his motion. We therefore reject Hill’s claim that the district court erred when it dismissed his motion without an eviden- tiary hearing. Because De Novo Review Indicates That Motion Was Properly Dismissed, Any Error in the Procedure by Which District Court Decided to Dismiss Motion Did Not Prejudice Hill. Because we conclude, based on our de novo review of the motion for new trial, that dismissal of Hill’s motion without an evidentiary hearing was proper without regard to the district court’s process, any error in the procedure by which the dis- trict court reached its decision to dismiss the motion did not prejudice Hill. We therefore need not decide Hill’s claims that the district court erred when it ordered the State to respond or when it based its order of dismissal on the language of the State’s response. We do, however, take this opportunity to comment concerning aspects of the district court’s disposition of Hill’s motion. Hill claims that the district court erred when it ordered the State to respond to his motion before the court had determined whether a hearing was required or whether the motion should be dismissed without an evidentiary hearing. Hill asserts that the statutes require notice to and involvement of the State only after the court has determined that an evidentiary hear- ing is required. The district court overruled Hill’s objection to soliciting the State’s views, reasoning that the statutes did not prohibit it from requesting a response and that it was doing so based on its inherent power. As an additional basis for objecting to the process, Hill maintains that the district court “abrogat[ed]” its decisionmak- ing authority to the State. In this regard, he observes that the court’s order dismissing his motion almost entirely repeated the State’s response. He asserts that the court made no find- ings of fact and that it merely “changed three words” from the State’s response, changed the heading, and added a final  - 523 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports STATE v. HILL Cite as 308 Neb. 511 paragraph for what he asserts was a total of “18 words added or changed.” Brief for appellant at 25, 26. Hill correctly notes that the court’s order made only minimal changes to the State’s response and that the court “took a little over a year” to rule on the motion. Id. at 25. In its brief on appeal, the State concedes that “[t]here can be no dispute that the district court’s order is cribbed almost directly from the [S]tate’s response,” brief for appellee at 7, but the State asserts that there is no author- ity to the effect that a court must make findings of fact or conclusions of law with respect to a motion for new trial and that, in any event, the court’s decision to dismiss the motion was correct. Given our disposition of the motion, we need not resolve the process-related claims of the parties, although we note in pass- ing that it is not inappropriate for a court to track the language of a party’s submission. We further choose to comment on Hill’s argument to the extent that he complains it took the court over 1 year to rule on the motion with an order that basically repeated the State’s response, and we take this opportunity to emphasize that this court has adopted case progression standards to govern the timely disposition of cases in the district and county courts. We note in particular Neb. Ct. R. § 6-101 (rev. 2013), which sets time standards for disposition of certain categories of pro- ceedings. Of relevance to this case, § 6-101 provides that for “Post Judgment Motions—Modification & Post Convictions,” 50 percent of such motions should be disposed in 180 days and 95 percent should be disposed in 1 year. In the present case, Hill filed his motion on January 16, 2019; the court ordered the State on February 18 to respond; and the State filed its response on May 21. Nearly 11⁄2 years after Hill filed his motion and almost 1 year after the State filed its response, the court dismissed Hill’s motion on May 14, 2020, without an evidentiary hearing in an order which almost word for word tracked the response which the court had available to it for 1 year.  - 524 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports STATE v. HILL Cite as 308 Neb. 511 Hill’s pro se motion was admittedly lengthy and contained numerous attachments. However, from our de novo review, it was readily apparent that, whatever the merit of the narrative in the allegations in the motion, Hill had not accompanied the motion with the supporting evidence required by § 29-2102(2). We think that the relatively straightforward path for disposi- tion of this motion indicates that, under our case progression standards, this motion should have been among the 50 percent of motions disposed in 180 days rather than the 5 percent dis- posed in over 1 year. CONCLUSION We conclude that the district court did not err when it con- sidered Hill’s motion as a motion for new trial rather than considering it as a motion for postconviction relief. In our de novo review, we conclude that Hill’s motion was properly dis- missed pursuant to § 29-2102(2). We therefore affirm the dis- trict court’s order which dismissed Hill’s motion for new trial without an evidentiary hearing. Affirmed. Freudenberg, J., not participating. Stacy, J., concurring. I agree with the majority’s holding, but write separately to comment on the procedure followed by the district court. In my opinion, it is neither uncommon nor improper for a district court, as part of its preliminary review of a motion for new trial under § 29-2102, to ask the State to file a written response before deciding whether to grant or deny an evidentiary hear- ing on the motion. According to Hill, this procedure amounts to reversible error because it is not expressly authorized in the statutes govern- ing motions for new trial. The majority declines to reach the procedural issue, reasoning that Hill’s motion was properly dismissed without a hearing, regardless of the procedure fol- lowed. But since the procedural issue is squarely before us, I  - 525 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports STATE v. HILL Cite as 308 Neb. 511 see no reason to leave judges and litigants wondering whether, in a later case, we might find it to be an abuse of discretion. Our cases have long recognized that a district court, as part of its preliminary review of a postconviction motion, has discretion to adopt reasonable procedures to assist the court in determining whether an evidentiary hearing is required. 1 Historically, courts have employed a variety of different pro- cedures, and so long as the procedure was not contrary to the postconviction statutory scheme, we have not found it to be an abuse of discretion. 2 And we have specifically held that it is not an abuse of discretion to direct the State to file a written response before deciding whether to grant or deny an eviden- tiary hearing on the motion. 3 Similar to the postconviction statutes, the statutes govern- ing motions for new trial require the trial court to conduct a preliminary review of the motion and determine whether to grant a hearing on the motion or dismiss it without a hear- ing. 4 In my opinion, we should acknowledge, as we have in the postconviction context, that trial courts have discretion to adopt reasonable procedures, not inconsistent with the statu- tory scheme, to assist in determining whether the motion for new trial and supporting documents “set forth facts which, 1 See, e.g., State v. Torres, 300 Neb. 694 , 915 N.W.2d 596 (2018); State v. Glover, 276 Neb. 622 , 756 N.W.2d 157 (2008); State v. McLeod, 274 Neb. 566 , 741 N.W.2d 664 (2007); State v. Dean, 264 Neb. 42 , 645 N.W.2d 528 (2002); State v. Flye, 201 Neb. 115 , 266 N.W.2d 237 (1978). 2 See, e.g., McLeod, supra note 1 (holding court did not abuse discretion in directing State to file written response to postconviction motion before ruling on whether to grant evidentiary hearing); Dean, supra note 1 (holding court did not abuse discretion in holding hearing to receive existing record and consider State’s motion to dismiss before ruling on whether to grant evidentiary hearing). Compare Glover, supra note 1 (finding abuse of discretion when court received and considered new evidence before ruling on whether to grant evidentiary hearing). 3 See, McLeod, supra note 1 ; Flye, supra note 1 . 4 See Neb. Rev. Stat. § 29-2102 (2) (Reissue 2016).  - 526 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports STATE v. HILL Cite as 308 Neb. 511 if true, would materially affect the substantial rights of the defendant” 5 and entitle the movant to a hearing. Here, a few weeks after Hill filed his 118-page pro se motion, the district court entered an order directing the State to file a written response to the motion within 90 days. The order explained that a decision on whether to grant a hear- ing on Hill’s motion, and whether to appoint counsel for Hill, would be deferred pending the State’s response. This proce- dure is not expressly outlined in the new trial statutes, but it is not contrary to the statutory scheme and assists the court in conducting the required preliminary review. I see no abuse of discretion in the procedure followed by the district court in this case. Nor do I see error in how the court prepared its order of dismissal. Hill complains that the court’s order was only four pages long and generally tracked with the State’s written response, which summarized Hill’s claims rather than address- ing each of the more than 100 paragraphs in his motion for new trial. But neither the length of a court’s order nor the original- ity of its language is a reliable measure of the quality of judi- cial decisionmaking. The majority correctly observes that it is not inappropriate for a court, when preparing an order, to track the language of a party’s submission. But the majority repeats Hill’s complaint in this regard often enough that readers might suspect there is something to it. There is not. Judges need not reinvent the legal wheel when issuing a decision, and it is neither remarkable nor improper for a court to issue an order that repeats a party’s correct analysis of the law or recitation of the facts. I firmly reject Hill’s contention that the language of the order issued in this case casts doubt on the court’s impartiality or suggests the judge did not conduct an independent and thorough review of Hill’s lengthy motion and supporting documents before issuing its decision. 5 Id.

2021-03-19 05:08:57.963635+00

https://www.nebraska.gov/apps-courts-epub/public/viewOpinion?docId=N00007624PUB

Nebraska Supreme Court Online Library www.nebraska.gov/apps-courts-epub/ 03/19/2021 12:08 AM CDT - 468 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports STATE v. WINES Cite as 308 Neb. 468 State of Nebraska, appellee, v. Kevin M. Wines, appellant. ___ N.W.2d ___ Filed February 19, 2021. No. S-20-445. 1. Sentences: Appeal and Error. Whether a defendant is entitled to credit for time served and in what amount are questions of law, subject to appellate review independent of the lower court. 2. Statutes: Appeal and Error. Statutory interpretation presents a ques- tion of law, which an appellate court reviews independently of the lower court. 3. Statutes: Intent. When interpreting a statute, the starting point and focus of the inquiry is the meaning of the statutory language, understood in context. 4. Statutes: Appeal and Error. Statutory language is to be given its plain and ordinary meaning, and an appellate court will not resort to inter- pretation to ascertain the meaning of statutory words which are plain, direct, and unambiguous. 5. Statutes. It is not within the province of courts to read meaning into a statute that is not there or to read anything direct and plain out of a statute. 6. ____. A court must attempt to give effect to all parts of a statute, and if it can be avoided, no word, clause, or sentence will be rejected as super- fluous or meaningless. 7. ____. Statutes relating to the same subject matter will be construed so as to maintain a sensible and consistent scheme, giving effect to every provision. Appeal from the District Court for Madison County: Mark A. Johnson, Judge. Affirmed. Jack W. Lafleur, of Moyer, Moyer & Lafleur, for appellant.  - 469 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports STATE v. WINES Cite as 308 Neb. 468 Douglas J. Peterson, Attorney General, and Kimberly A. Klein for appellee. Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ. Papik, J. Kevin M. Wines appeals his sentences, arguing that the dis- trict court erred in its award of credit for time served. We find no error on the part of the district court and thus affirm. BACKGROUND 2016 Case. This appeal involves several criminal proceedings against Wines. In the first such proceeding, commenced in 2016 (the 2016 case), Wines entered pleas of guilty to one count of delivery of a controlled substance and one count of attempted delivery of a controlled substance. Following his convictions, Wines was sentenced to a term of probation and ordered to serve 90 days in jail. In July 2018, while still serving his term of probation, a search of Wines’ residence revealed evidence of drug activity. Wines was there- after arrested and charged with multiple offenses. After the arrest, the State filed an information to revoke Wines’ probation in the 2016 case. In February 2019, the district court accepted Wines’ admission that he violated his probation, revoked his probation, and sentenced Wines on his original convictions. The district court sentenced Wines to 4 to 8 years’ imprisonment for delivery of a controlled sub- stance and 1 to 2 years’ imprisonment for attempted delivery of a controlled substance. Wines was awarded 30 days’ credit for time served. The sentences were ordered to be served consecutively. 2018 Case. As mentioned above, in addition to seeking to revoke Wines’ probation in the 2016 case, the State also filed another criminal case against Wines in 2018 (the 2018 case). In the  - 470 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports STATE v. WINES Cite as 308 Neb. 468 2018 case, Wines entered a plea of no contest to each of the fol- lowing charges: attempted possession of marijuana with intent to distribute, attempted tampering with evidence, attempted possession of tramadol, possession of ecstasy, and child abuse or neglect. In February 2019, the district court accepted Wines’ no con- test pleas and sentenced him to 2 to 3 years’ imprisonment for attempted possession of marijuana with intent to distribute, 6 months’ imprisonment for attempted tampering with evidence, 6 months’ imprisonment for attempted possession of tramadol, 1 to 2 years’ imprisonment for possession of ecstasy, and 1 year’s imprisonment for child abuse or neglect. Each of the sentences were ordered to be served consecutively to the other sentences imposed in the 2018 case, but concurrently with Wines’ sentences in the 2016 case. Wines was awarded 14 days’ credit for time served. Wines timely appealed his sentences in both the 2016 case and the 2018 case. Court of Appeals. Wines’ initial appeal was decided by the Nebraska Court of Appeals. The Court of Appeals found plain error in both of the sentences in the 2016 case and two of the sentences in the 2018 case. It otherwise affirmed. In the appeal of the 2016 case, the Court of Appeals found, among other things, that the district court should have imposed determinate sentences for both of Wines’ convictions. The Court of Appeals vacated the sentences imposed in the 2016 case and remanded the cause with instructions to sentence Wines to determinate sentences. In the appeal of the 2018 case, the Court of Appeals also found that the district court should have imposed determinate sentences for Wines’ convictions for attempted possession of marijuana with intent to distribute and possession of ecstasy. It vacated those sentences and remanded the cause to the district court with instructions to impose determinate sentences for  - 471 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports STATE v. WINES Cite as 308 Neb. 468 those offenses. The Court of Appeals found no error in Wines’ other sentences in the 2018 case. Sentencing Proceedings on Remand. In May 2020, the district court held a hearing at which it resentenced Wines in both the 2016 case and the 2018 case. After the district court stated that it would address the 2016 case first, Wines’ counsel raised the issue of credit for time served. Counsel for Wines and counsel for the State agreed that Wines had served 451 days between the 2019 sentencing proceeding in both cases and the 2020 resentencing proceed- ing. In addition, Wines’ counsel explained that he received an additional 30 days’ credit for time served prior to the 2019 sen- tencing proceeding in the 2016 case. The district court went on to sentence Wines in the 2016 case. Wines was sentenced to 4 years’ imprisonment with credit for 481 days served and a term of postrelease supervision for delivery of a controlled sub- stance and to 2 years’ imprisonment and a term of postrelease supervision for attempted delivery of a controlled substance. The sentences were ordered to be served consecutively. The district court then considered the 2018 case. Again, Wines’ counsel raised the issue of credit for time served, noting that Wines was given 14 days’ credit for time served in the 2018 case in the initial sentences. The district court then imposed sentences in the 2018 case. For the conviction of attempted possession of marijuana with intent to distrib- ute, the district court sentenced Wines to 24 months’ impris- onment, with credit for 14 days previously served, and a period of postrelease supervision. For the conviction of pos- session of ecstasy, the district court sentenced Wines to 12 months’ imprisonment and a period of postrelease supervision. It ordered the two new sentences in the 2018 case to be served concurrently with one another. It also ordered the sentences in the 2018 case to be served concurrently with the sentences in the 2016 case. The district court’s sentencing order stated  - 472 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports STATE v. WINES Cite as 308 Neb. 468 that the other sentences in the 2018 case “shall remain as sen- tenced previously.” Wines filed a timely notice of appeal in the 2018 case. ASSIGNMENT OF ERROR Wines assigns that the district court erred in its award of credit for time served in the 2018 case. STANDARD OF REVIEW [1] Whether a defendant is entitled to credit for time served and in what amount are questions of law, subject to appellate review independent of the lower court. State v. Phillips, 302 Neb. 686 , 924 N.W.2d 699 (2019). [2] Statutory interpretation presents a question of law, which an appellate court reviews independently of the lower court. Id. ANALYSIS Wines argues that the district court failed to award him all of the credit for time served to which he was entitled for his sentences in the 2018 case. The district court awarded Wines 14 days’ credit for time served on his sentence for attempted possession of marijuana with intent to distribute. Wines claims it should also have awarded him an additional 451 days’ credit for the time Wines was in custody between his initial sentenc- ing in February 2019 and his resentencing in May 2020. Wines acknowledges that the district court applied credit for time served for the time Wines was in custody between his 2019 sentencing proceeding and his 2020 resentencing proceeding to his 4-year sentence for delivery of a controlled substance in the 2016 case. The issue in this case is thus whether Wines was entitled to have credit for time spent in custody between his 2019 sentencing proceeding and his 2020 resentencing pro- ceeding applied to two different sentences which were ordered to be served concurrently to one another. Wines and the State agree that any entitlement to credit for time served in this case is controlled by Neb. Rev. Stat.  - 473 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports STATE v. WINES Cite as 308 Neb. 468 § 83-1,106 (Reissue 2014). As the entirety of § 83-1,106 is rel- evant to the parties’ arguments, we reprint it in full here: (1) Credit against the maximum term and any mini- mum term shall be given to an offender for time spent in custody as a result of the criminal charge for which a prison sentence is imposed or as a result of the conduct on which such a charge is based. This shall specifically include, but shall not be limited to, time spent in custody prior to trial, during trial, pending sentence, pending the resolution of an appeal, and prior to delivery of the offender to the custody of the Department of Correctional Services, the county board of corrections, or, in counties which do not have a county board of corrections, the county sheriff. (2) Credit against the maximum term and any mini- mum term shall be given to an offender for time spent in custody under a prior sentence if he or she is later reprosecuted and resentenced for the same offense or for another offense based on the same conduct. In the case of such a reprosecution, this shall include credit in accord­ ance with subsection (1) of this section for time spent in custody as a result of both the original charge and any subsequent charge for the same offense or for another offense based on the same conduct. (3) If an offender is serving consecutive or concurrent sentences, or both, and if one of the sentences is set aside as the result of a direct or collateral proceeding, credit against the maximum term and any minimum term of the remaining sentences shall be given for all time served since the commission of the offenses on which the sen- tences set aside were based. (4) If the offender is arrested on one charge and pros- ecuted on another charge growing out of conduct which occurred prior to his or her arrest, credit against the maximum term and any minimum term of any sentence resulting from such prosecution shall be given for all time  - 474 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports STATE v. WINES Cite as 308 Neb. 468 spent in custody under the former charge which has not been credited against another sentence. (5) Credit for time served shall only be given in accord­ ance with the procedure specified in this subsection: (a) Credit to an offender who is eligible therefor under subsections (1), (2), and (4) of this section shall be set forth as a part of the sentence; or (b) Credit to an offender who is eligible therefor under subsection (3) of this section shall only be given by the court in which such sentence was set aside by entering such credit in the final order setting aside such sentence. [3-7] In considering the parties’ arguments concerning § 83-1,106, we apply our familiar principles of statutory inter- pretation, which we briefly review here. When interpreting a statute, the starting point and focus of the inquiry is the meaning of the statutory language, understood in context. In re Guardianship of Eliza W., 304 Neb. 995 , 938 N.W.2d 307 (2020). Our analysis begins with the text, because statutory language is to be given its plain and ordinary meaning, and an appellate court will not resort to interpretation to ascertain the meaning of statutory words which are plain, direct, and unam- biguous. See id. Neither is it within the province of courts to read meaning into a statute that is not there or to read anything direct and plain out of a statute. Parks v. Hy-Vee, 307 Neb. 927 , 951 N.W.2d 504 (2020). A court must attempt to give effect to all parts of a statute, and if it can be avoided, no word, clause, or sentence will be rejected as superfluous or meaningless. Ash Grove Cement Co. v. Nebraska Dept. of Rev., 306 Neb. 947 , 947 N.W.2d 731 (2020). Statutes relating to the same subject matter will be construed so as to maintain a sensible and con- sistent scheme, giving effect to every provision. Id. In support of his argument that the district court erred by not applying credit for time spent in custody between his initial sentencing and his resentencing to multiple sentences, Wines relies on several subsections of § 83-1,106, the first being § 83-1,106(1). This is not the first time, however,  - 475 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports STATE v. WINES Cite as 308 Neb. 468 that we have been presented with an argument that under § 83-1,106(1), a defendant should have credit for time spent in custody applied to multiple concurrent sentences. In State v. Banes, 268 Neb. 805 , 688 N.W.2d 594 (2004), we held that the Court of Appeals erred when it found that a defendant was entitled to have credit for the same time period in custody applied to two different concurrent sentences. The defendant in Banes had been arrested on one charge, released on bond for that charge, and then arrested on an unrelated charge after which the district court allowed a refund of the bond money posted in the first case. At issue was how credit for time served should be applied for the period of time after the second arrest and refund of the bond money during which the defendant was in custody as a result of two unrelated charges. Considering both subsections (1) and (4) of § 83-1,106, we held that credit for time served should be applied to only one sentence. As we explained, “when concurrent sentences are imposed, the credit is applied once, and the credit applied once, in effect, is applied against each concurrent sentence.” Banes, 268 Neb. at 812 , 688 N.W.2d at 599. See, also, State v. Sanchez, 2 Neb. App. 1008 , 520 N.W.2d 33 (1994). Wines acknowledges that we held in Banes that the defend­ ant should have credit applied to only one of his concurrent sentences, but argues that this case is distinguishable. The distinction on which he relies is that Banes involved credit for time the defendant was in custody before any sentence was pronounced, while this case involves credit for time the defendant was in custody in between an initial sentencing and a resentencing. Wines has identified a difference between the two cases, but we are not convinced that the language of § 83-1,106(1) requires that credit should be applied to mul- tiple sentences under these circumstances. Instead, we observe that § 83-1,106(1) provides that it applies to time spent in custody both “pending sentence” and “pending the resolution of an appeal.” During the period of time at issue here, Wines was initially in custody pending the resolution of an appeal in  - 476 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports STATE v. WINES Cite as 308 Neb. 468 both the 2016 case and the 2018 case and then, after the Court of Appeals vacated his sentences and remanded the causes for resentencing, he was in custody pending sentence in both cases. We see nothing in the language of § 83-1,106(1) indicat- ing that credit for time served should be applied to only one concurrent sentence while a defendant is in custody pending sentence under circumstances like those in Banes but should be applied to multiple concurrent sentences when the defendant is in custody pending the resolution of an appeal and then pend- ing sentence, as here. Wines also suggested at oral argument that § 83-1,106(2) supports his argument that credit for the time period at issue should have been applied to sentences in both the 2016 case and the 2018 case. Again, we must disagree. Section 83-1,106(2) provides that credit for time served should be applied in a scenario in which the defendant is given a sentence and then later “reprosecuted and resentenced for the same offense or for another offense based on the same conduct.” That language has no application here. Wines was resentenced but never “repros­ ecuted” for the same offense or for another offense based on the same conduct. Finally, Wines argues that under § 83-1,106(3), the district court should have applied credit for time served—for the period between his initial sentencing and his resentencing—to his sen- tences in the 2018 case for attempted tampering with evidence, attempted possession of tramadol, and child abuse or neglect. These are the three sentences in the 2018 case that were affirmed by the Court of Appeals in Wines’ first appeal. Wines argues that such credit should be applied to those sentences because, in the parlance of § 83-1,106(3), other ­sentences were “set aside” and those sentences were “remaining.” We find it unnecessary to determine whether the circum- stances at issue here fall within the language of § 83-1,106(3). We reach this conclusion because § 83-1,106(5) provides that credit for time served can only be given in accordance with its procedures and further provides that any credit awarded  - 477 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports STATE v. WINES Cite as 308 Neb. 468 under § 83-1,106(3) “shall only be given by the court in which such sentence was set aside by entering such credit in the final order setting aside such sentence.” § 83-1,106(5)(b). Thus, even assuming that § 83-1,106(3) applied when the Court of Appeals vacated some of Wines’ sentences and not others, under § 83-1,106(5)(b), any resulting credit for time served under § 83-1,106(3) could only have been awarded by the Court of Appeals. As the district court lacked power to award any credit for time served under § 83-1,106(3), we find it did not err by not doing so. The district court awarded Wines 451 days of credit for time served for the time he was in custody between his 2019 sentencing proceeding and his 2020 resentencing proceeding. It applied that credit to his 4-year sentence for delivery of a con- trolled substance in the 2016 case. Having considered Wines’ arguments, we are not persuaded that the district court erred by not also applying credit for the same time period to his sen- tences in the 2018 case. CONCLUSION Finding no error in the district court’s sentences, we affirm. Affirmed.

2021-03-19 05:08:59.29098+00

https://www.nebraska.gov/apps-courts-epub/public/viewOpinion?docId=N00007622PUB

Nebraska Supreme Court Online Library www.nebraska.gov/apps-courts-epub/ 03/19/2021 12:08 AM CDT - 443 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports STATE v. MADREN Cite as 308 Neb. 443 State of Nebraska, appellee, v. James M. Madren, appellant. ___ N.W.2d ___ Filed February 19, 2021. No. S-19-240. 1. Motions for Mistrial: Appeal and Error. Decisions regarding motions for mistrial are directed to the discretion of the trial court and will be upheld in the absence of an abuse of discretion. 2. Judgments: Words and Phrases. An abuse of discretion occurs when a trial court’s decision is based upon reasons that are untenable or unrea- sonable or if its action is clearly against justice or conscience, reason, and evidence. 3. Criminal Law: Motions for New Trial: Evidence: Appeal and Error. A de novo standard of review applies when an appellate court is review- ing a trial court’s dismissal of a motion for a new trial under Neb. Rev. Stat. § 29-2102 (2) (Reissue 2016) without conducting an evidentiary hearing. But a trial court’s denial of a motion for new trial after an evi- dentiary hearing is reviewed for an abuse of discretion. 4. Constitutional Law: Speedy Trial: Juries. The U.S. Constitution and the Nebraska Constitution both guarantee a speedy public trial by an impartial jury. 5. Constitutional Law: Trial: Juries. The presence of an alternate juror during the jury’s deliberations violates a defendant’s federal and state constitutional rights to a fair and impartial trial. 6. Juries: Verdicts. The presence of strangers during jury deliberations destroys the sanctity of the jury because the verdict of a jury should represent the concurring judgment, reason, and intelligence of the entire jury based upon the evidence and free from outside influence from any source whatever. 7. Juries. Once a case has been submitted to the jury, an alternate juror is a stranger to the proceedings regardless of whether the alternate juror was discharged.  - 444 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports STATE v. MADREN Cite as 308 Neb. 443 8. Juries: Presumptions: Appeal and Error. The irregularity of the pres- ence of an alternate juror in deliberations of the 12 regular jurors cre- ates a rebuttable presumption of prejudice subject to a harmless error analysis. 9. Constitutional Law: Trial: Juries: Presumptions: Appeal and Error. The presence of an alternate juror in jury deliberations is a constitu- tional violation of the right to a fair and impartial trial that merely cre- ates a rebuttable presumption of prejudice for purposes of a harmless error analysis. 10. Motions for Mistrial: New Trial: Proof. After an error has been prop- erly preserved by a motion for a mistrial, in order for a new trial to be granted, it must be shown that a substantial right of the defendant was adversely affected and that the defendant was prejudiced thereby. 11. Criminal Law: Trial: Juries: Verdicts: Appeal and Error. In a jury trial of a criminal case, harmless error exists when there is some incor- rect conduct by the trial court which, on review of the entire record, did not materially influence the jury in reaching a verdict adverse to a substantial right of the defendant. Petition for further review from the Court of Appeals, Moore, Arterburn, and Welch, Judges, on appeal thereto from the District Court for Douglas County, James T. Gleason, Judge. Judgment of Court of Appeals reversed and remanded with directions. Peder Bartling, of Bartling Law Offices, P.C., L.L.O., for appellant. Douglas J. Peterson, Attorney General, and Siobhan E. Duffy for appellee. Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ. Freudenberg, J. NATURE OF CASE In a petition for further review from a direct appeal of a first degree sexual assault conviction, the defendant challenges the Nebraska Court of Appeals’ affirmance of the district  - 445 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports STATE v. MADREN Cite as 308 Neb. 443 court’s denials of his motions for mistrial and new trial after the district court mistakenly failed to dismiss an alternate juror who remained with the jury during the first hour of delib- erations. The defendant asserts the district court erred when it refused to inquire of the alternate before dismissing her, to hold an evidentiary hearing to question each of the jurors, or even to allow an affidavit of the alternate to be obtained, any of which could have been used to determine the extent of communications or other influence by the alternate during the jury’s deliberations. The court instead instructed the jury to begin deliberations “from scratch,” specifically telling them that it did not want to know the extent it “communicated back and forth” with the alternate. Then, after the verdict, the court generally requested that the jury “please let me know” whether any juror “consider[ed] any of the conversations or participa- tion” of the alternate juror in reaching a verdict and, when no juror responded, was satisfied that the court’s actions were suf- ficient to rectify any presumption of prejudice that arose when the court mistakenly permitted the alternate to intrude upon the sanctity of the jury deliberations without any safeguards limit- ing the alternate’s participation. BACKGROUND Following a jury trial, James M. Madren was convicted of first degree sexual assault, in violation of Neb. Rev. Stat. § 28-319 (1)(c) (Reissue 2016), a Class II felony. Madren was sentenced to 30 to 38 years’ imprisonment. Madren appealed the conviction to the Court of Appeals, assigning, among other things, that the district court erred in overruling Madren’s motions for mistrial and new trial after an alternate juror was not discharged for the first hour of jury deliberations. The Court of Appeals affirmed. We granted further review on the question of whether the Court of Appeals erred by affirming the district court’s denials of Madren’s motions for mistrial and new trial.  - 446 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports STATE v. MADREN Cite as 308 Neb. 443 The basis for the motions was the fact that, at trial, after the parties rested and an hour after the case was submitted to the jury, the district court became aware of the fact that it had mistakenly failed to discharge the alternate juror. The district court called back counsel for both sides, notified them of the court’s mistake, and proposed to “call the jury back in, remove the alternate[,] and send the jury back for deliberations.” The district court gave each counsel the opportunity to respond to its proposal. Madren indicated his intent to move for a mistrial. Madren asked the court to inquire of the alternate juror the extent, if any, the alternate had participated in deliberations. Further, Madren requested that the court admonish the remaining 12 jurors that any opinions expressed by the alternate were not to be considered in deliberations. The court indicated it intended to admonish the jury to start its deliberations “anew from spot zero,” but refused to make any inquiries of the alternate. The court then recalled the jury, notified the jury of the error, and identified and dismissed the alternate juror. At that time, the court asked the jury to again “refer to the instructions . . . regarding your duties as jurors.” It also specifically told the jury, “I don’t want to inquire to what extent you communi- cated back and forth.” Rather, the court instructed the jury to start “again from scratch as if your deliberations start now and without the alternate present.” The court asked the jury if the instruction made sense to them, all jurors responded affirm­ atively, and the jury was then dismissed to begin delibera- tions anew. When the jury retired back to the jury room, Madren moved for a mistrial. Madren argued that without knowing the extent that the alternate participated in persuading the jurors to change their minds, it could not be determined that the potential persuasion by the alternate could be undone when the jury was instructed to start deliberations over. The court immedi- ately overruled Madren’s motion for mistrial, reasoning that it  - 447 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports STATE v. MADREN Cite as 308 Neb. 443 was satisfied that the cautionary instruction to have the jurors commence their deliberations anew was sufficient. After the jury returned its verdict, the jury was polled at defense counsel’s request and each juror was asked whether the guilty verdict was his or her final verdict. Each juror answered, “Yes.” No further questioning of any individual juror took place. The district court generally requested that the jury “please let me know” whether any of its members, in reaching the verdict, “consider[ed] any of the conversations or participation” of the alternate juror while she was with them in the jury room. There was no audible response, and the judge rendered judgment on the verdict. After the verdict was entered, Madren moved for a new trial, alleging in the written motion, among other things, that the alternate juror’s participating in deliberations for over an hour could not be cured by any instruction, prejudiced Madren, and prevented him from having a fair trial. The order scheduling a hearing on the motion for new trial was not included in the transcript. The bill of exceptions of the hearing, however, indi- cates that the court was not allowing evidence at the hearing, but only arguments. At the hearing on the motion for a new trial, Madren requested that the court keep the motion under advisement until sentencing in order to give defense counsel time to at least secure an affidavit from the alternate juror as to her participa- tion in deliberations, if the court were inclined to allow any evidence, in the form of an affidavit or direct testimony, regard- ing what the alternate actually did. Madren explained that if the affidavit indicated the alternate juror substantially participated, it “would support our argument that there was prejudice to [Madren] by having that alternate in the jury room.” The court overruled Madren’s motion for a new trial without giving Madren an opportunity to secure the alternate juror’s affidavit or for either party to present any evidence. The court concluded that “all the matters regarding the alternate were  - 448 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports STATE v. MADREN Cite as 308 Neb. 443 resolved in the jury’s verdict after [its] admonition by the Court,” the jury was polled after returning its verdict, and even if there was such an error, it would be harmless. The Court of Appeals affirmed. Madren petitioned for ­further review limited to the Court of Appeals’ affirmance of the dis- trict court’s decision to overrule Madren’s motion for mistrial and motion for new trial regarding the alternate juror’s partici- pating in deliberations. We granted further review. ASSIGNMENTS OF ERROR In Madren’s petition for further review, he assigns that the Court of Appeals erred by misconstruing Nebraska law in affirming the district court’s decision to overrule Madren’s motions for mistrial and new trial after the district court allowed a nonjuror, the alternate juror, to participate in the deliberation process that rendered a guilty verdict against Madren. STANDARD OF REVIEW [1,2] Decisions regarding motions for mistrial are directed to the discretion of the trial court and will be upheld in the absence of an abuse of discretion. 1 An abuse of discretion occurs when a trial court’s decision is based upon reasons that are untenable or unreasonable or if its action is clearly against justice or conscience, reason, and evidence. 2 [3] We determine a de novo standard of review applies when an appellate court is reviewing a trial court’s dismissal of a motion for a new trial under Neb. Rev. Stat. § 29-2102 (2) (Reissue 2016) without conducting an evidentiary hearing. But a trial court’s denial of a motion for new trial after an eviden- tiary hearing is reviewed for an abuse of discretion. 3 1 State v. Briggs, 303 Neb. 352 , 929 N.W.2d 65 (2019). 2 State v. Senteney, 307 Neb. 702 , 950 N.W.2d 585 (2020). 3 State v. Cross, 297 Neb. 154 , 900 N.W.2d 1 (2017).  - 449 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports STATE v. MADREN Cite as 308 Neb. 443 ANALYSIS [4,5] The U.S. Constitution and the Nebraska Constitution both guarantee a speedy public trial by an impartial jury. 4 We have held that the presence of an alternate juror during the jury’s deliberations violates a defendant’s federal and state constitutional rights to a fair and impartial trial. 5 [6,7] The presence of strangers during jury deliberations destroys the sanctity of the jury because the verdict of a jury should represent the concurring judgment, reason, and intelli- gence of the entire jury based upon the evidence and free from outside influence from any source whatever. 6 We have held that once a case has been submitted to the jury, an alternate juror is a stranger to the proceedings regardless of whether the alter- nate juror was discharged. 7 An alternate, we have explained, is not part of the deliberating body and should not be permitted with the group, where an alternate may have an influence on the jury’s determination. 8 Neb. Rev. Stat. § 29-2022 (Reissue 2016) states that once a case has been submitted, the jury shall have no communication with nonjurors, in order to ensure that an accused receives the right of an impartial jury and to shield the jury from improper conduct by jurors during the course of their deliberations. 9 And, at the time of Madren’s trial, Neb. Rev. Stat. § 29-2004 (Reissue 2016) required the court to discharge alternate jurors “upon the final submission of the cause to the jury.” 10 Madren correctly points out that several jurisdictions hold that the presence of an alternate in the jury room during 4 U.S. Const. amend. VI; Neb. Const. art. I, § 11. 5 State v. Menuey, 239 Neb. 513 , 476 N.W.2d 846 (1991). 6 See, id.; Bramlett v. State, 129 Neb. 180 , 261 N.W. 166 (1935). 7 See Menuey, supra note 5. 8 See id. 9 See State v. Barranco, 278 Neb. 165 , 769 N.W.2d 343 (2009). 10 See Menuey, supra note 5.  - 450 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports STATE v. MADREN Cite as 308 Neb. 443 deliberations constitutes reversible error per se. These jurisdic- tions reason that it is impossible to make an adequate inquiry that would disprove prejudice from such a constitutional vio- lation. 11 It could not be known whether or to what extent that participation affected the other jurors or the ultimate verdict because any inquiry into the mental process of jurors is imper- missible. 12 Furthermore, these jurisdictions reason that a factual inquiry into the extent of an alternate’s participation and influ- ence upon the jury is itself an intrusion into the proceedings and privacy of the jury. 13 The 10th Circuit Court of Appeals in United States v. Beasley 14 reasoned that any inquiry of the jury under a prejudice standard “is itself a dangerous intrusion into the proceedings of the jury” and that the purpose sought to be achieved at a prejudice hearing “is not of sufficient importance to warrant such an inquiry in comparison to the possible harm or appearance of interference.” At least one jurisdiction has modified this per se approach by making a distinction between instances where the alter- nate juror was present while the jury actually deliberated and instances where the alternate was present only during “limited organizational activity,” such as electing a foreperson. 15 If the alternate is present after deliberations begin, the error is fun- damental and prejudicial per se, and a new trial is ­­necessary. 16 11 See, Stokes v. State, 379 Md. 618 , 843 A.2d 64 (2004) (citing United States v. Beasley, 464 F.2d 468 (10th Cir. 1972)); Com. v. Smith, 403 Mass. 489 , 531 N.E.2d 556 (1988); State v. Bindyke, 288 N.C. 608 , 220 S.E.2d 521 (1975); Brigman v. State, 350 P.2d 321 (Okla. Crim. App. 1960); Commonwealth v. Krick, 164 Pa. Super. 516 , 67 A.2d 746 (1949). 12 See, Smith, supra note 11 ; Bindyke, supra note 11 (citing Beasley, supra note 11 ; State v. Cuzick, 85 Wash. 2d 146 , 530 P.2d 288 (1975); and Krick, supra note 11 ). 13 See id. 14 Beasley, supra note 11 , 464 F.2d at 470 . 15 Bouey v. State, 762 So. 2d 537 , 540 (Fla. App. 2000). 16 See id.  - 451 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports STATE v. MADREN Cite as 308 Neb. 443 But if the alternate is only present during organizational activi- ties and the case is not discussed, a harmless error analysis is appropriate. 17 This jurisdiction has emphasized that it is critical that the trial court conduct an inquiry and make factual determinations on the record in order to determine how long the alternate was with the other jurors and what was discussed while the alternate was present. 18 [8] Both our court and the U.S. Supreme Court have repeat- edly recognized that most constitutional errors can be harm- less. 19 Thus, under most circumstances, we have rejected a per se rule for irregularities or misconduct involving the sanctity of the jury. 20 We have specifically held that the irregularity of the presence of an alternate juror in deliberations of the 12 regular jurors creates a rebuttable presumption of prejudice subject to a harmless error analysis. 21 In State v. Menuey, 22 we explained that the presence of an alternate juror in the jury room, while a fundamental consti- tutional violation, is nevertheless distinct from the presence of a court or law enforcement officer for a significant period of time during deliberations—which we held in Gandy v. State 23 and Cooney v. State 24 is prejudice per se regardless 17 See id. 18 See id. 19 See, State v. Abram, 284 Neb. 55 , 815 N.W.2d 897 (2012); Menuey, supra note 5 (citing Simants v. State, 202 Neb. 828 , 277 N.W.2d 217 (1979)). 20 See, State v. Anderson, 252 Neb. 675 , 564 N.W.2d 581 (1997); State v. LeBron, 217 Neb. 452 , 349 N.W.2d 918 (1984); Simants, supra note 19 ; State v. Robinson, 198 Neb. 785 , 255 N.W.2d 835 (1977); Cooney v. State, 61 Neb. 342 , 85 N.W. 281 (1901); Gandy v. State, 24 Neb. 716 , 40 N.W. 302 (1888). See, also, State v. Owen, 1 Neb. App. 1060 , 510 N.W.2d 503 (1993). 21 Menuey, supra note 5. 22 Id. 23 Gandy, supra note 20. 24 Cooney, supra note 20.  - 452 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports STATE v. MADREN Cite as 308 Neb. 443 of whether the officer participated or advised the jury in any manner. 25 A court officer might be expected to monitor the jury’s discussions and a law enforcement officer could be expected to inhibit criticism of the State’s case, thereby increas- ing the inhibitory effect of their presence. 26 We ultimately held in Menuey that the evidence presented at the evidentiary hearing, at which the alternate and the jurors testified, rebutted the presumption of prejudice. The alternate and the jurors had been called by the trial court to testify, and it was undisputed that no deliberations took place during the alternate’s presence, which was for only approximately 10 minutes while the jury chose a foreman. The jurors and the alternate testified that the alternate did not participate in the choosing of the foreman; nor did the alternate discuss the case with the jurors when the bailiff had allowed the alter- nate to join them for lunch. Finally, the jurors testified their decisions were not in any way influenced by the alternate’s presence. 27 [9] We decline Madren’s invitation to overrule Menuey and adopt a per se standard for prejudice when an alternate is mis- takenly allowed in juror deliberations. We reaffirm that under the statutory scheme for alternates controlling at the time of Madren’s trial, the presence of an alternate juror in jury delib- erations is a constitutional violation of the right to a fair and impartial trial that merely creates a rebuttable presumption of prejudice for purposes of a harmless error analysis. This approach, adopting a rebuttable presumption of prej­ udice in a harmless error analysis for the unauthorized pres- ence of an alternate juror in jury deliberations, has been 25 See, Simants, supra note 19 ; Cooney, supra note 20. 26 Menuey, supra note 5. But see Simants, supra note 19 . 27 Menuey, supra note 5.  - 453 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports STATE v. MADREN Cite as 308 Neb. 443 adopted by a substantial number of other jurisdictions. 28 We disagree with the reasoning of the “prejudice per se” juris- dictions that an evidentiary hearing to determine prejudice is fruitless because of restrictions on examinations of jurors’ mental states. As we noted in Menuey, Neb. Rev. Stat. § 27-606 (2) (Reissue 2016) describes the confines of permissible inquiry into jurors’ minds and allows a juror to testify on the question whether extraneous prejudicial information was improperly brought to the jury’s attention or whether any outside influence was improperly brought to bear upon any juror. 29 Section 27-606(2) states in full: Upon an inquiry into the validity of a verdict or indict- ment, a juror may not testify as to any matter or state- ment occurring during the course of the jury’s delibera- tions or to the effect of anything upon his or any other juror’s mind or emotions as influencing him to assent to or dissent from the verdict or indictment or concerning his mental processes in connection therewith, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury’s attention or whether any outside influence was improperly brought to bear upon any juror. Nor may his affidavit or evidence of any statement by him indicating an effect of this kind be received for these purposes. (Emphasis supplied.) We explained in Menuey that the jurors’ and the alternate’s testimony as to both the objective extent 28 See, Stokes, supra note 11 (citing United States v. Watson, 669 F.2d 1374 (11th Cir. 1982)); State v. Crandall, 452 N.W.2d 708 (Minn. App. 1990); People v. Boulies, 690 P.2d 1253 (Colo. 1984); State v. Scrivner, 676 S.W.2d 12 (Mo. App. 1984); State v. Coulter, 98 N.M. 768 , 652 P.2d 1219 (N.M. App. 1982); Yancey v. State, 640 P.2d 970 (Okla. Crim. App. 1982); Cuzick, supra note 12 ; Johnson v. State, 235 Ga. 486 , 220 S.E.2d 448 (1975). 29 See Menuey, supra note 5.  - 454 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports STATE v. MADREN Cite as 308 Neb. 443 of the alternate’s participation in deliberations and the jurors’ subjective determination that they were not influenced by the alternate’s presence was thus properly received. 30 The alter- nate’s participation during jury deliberations, as a stranger to the proceedings, is extraneous information and outside influ- ence. While the court may still be prohibited from inquiring of the jurors as to what they said to the alternate, the court is not prohibited from questioning individual jurors and the alternate as to how, if at all, the alternate communicated to the jury. 31 The court is also permitted to inquire as to individual jurors whether the alternate’s outside influence was brought to bear upon them. 32 We observe that since Madren’s trial, amendments made by 2020 Neb. Laws, L.B. 881, effective November 14, 2020, now allow courts to retain alternate jurors after the jury retires to deliberate, with added safeguards intended to protect the sanc- tity of juror deliberations. 33 Under § 29-2004 as amended, if a court decides to retain alternate jurors, the court “shall ensure that a retained alternate does not discuss the case with anyone until that alternate replaces a juror or is discharged.” 34 It does not elaborate on how that must be done and does not indicate that the retained alternate should be present in juror delibera- tions. Also, if the alternate replaces a juror after deliberations have started, “the court shall instruct the jury to begin its delib- erations anew.” 35 This case presents the unique situation where the district court, through its own error, allowed the alternate, without any 30 Id. 31 See, Zeeb v. Delicious Foods, 231 Neb. 358 , 436 N.W.2d 190 (1989); Owen, supra note 20 . 32 § 27-606; Menuey, supra note 5. See, also, LeBron, supra note 20; Robinson, supra note 20 . 33 § 29-2004 (Cum. Supp. 2020). 34 Id. 35 Id.  - 455 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports STATE v. MADREN Cite as 308 Neb. 443 safeguards, to remain in the jury room for approximately an hour after the case was submitted to the jury. Yet, the district court denied both the motion for a mistrial and the motion for a new trial without conducting an evidentiary hearing or even questioning any individual juror to determine the extent of the alternate’s participation in deliberations. And no informa- tion was permitted to be obtained from the alternate before the court dismissed her or when Madren sought to obtain an affidavit from her prior to the court’s deciding the motion for new trial. When the grounds for a motion for a mistrial involve the sanctity of jury deliberations, the defendant has generally been given an opportunity to have the jurors both ques- tioned and polled, and whether the defendant was prejudiced depends in part on what the jurors say on interrogation. 36 Even more to the point, § 29-2102(2) dictates with respect to a motion for new trial that the court “shall” hold an evidentiary hearing and make findings of fact and law “[i]f the motion for new trial and supporting documents set forth facts which, if true, would materially affect the substantial rights of the defendant . . . .” As a general rule, the use of the word “shall” is considered to indicate a mandatory directive, inconsistent with the idea of discretion. 37 In State v. Cross, 38 we held that we apply a de novo standard of review to a trial court’s dismissal of a motion for a new trial under § 29-2102(2), without first conducting an evidentiary hearing. [10] After an error has been properly preserved by a motion for a mistrial, in order for a new trial to be granted, it must be shown that a substantial right of the defendant was 36 See State v. Myers, 258 Neb. 272 , 603 N.W.2d 390 (1999). See, also, LeBron, supra note 20; Robinson, supra note 20 ; Owen, supra note 20 . 37 Flores v. Flores-Guerrero, 290 Neb. 248 , 859 N.W.2d 578 (2015). 38 Cross, supra note 3 .  - 456 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports STATE v. MADREN Cite as 308 Neb. 443 adversely affected and that the defendant was prejudiced ­thereby. 39 Pursuant to Neb. Rev. Stat. § 29-2101 (Reissue 2016), a new trial after a verdict of conviction may be granted on the application of the defendant on specified grounds “affecting materially his or her substantial rights,” including, as set forth in subsection (1), “[i]rregularity in the proceedings of the court . . . or in any order of the court or abuse of discre- tion by which the defendant was prevented from having a fair trial.” When the motion for a new trial is on grounds set forth in § 29-2101(2), (3), and (6), then § 29-2102 requires that they be supported by affidavits showing the truth of such grounds. But § 29-2102 does not require that the movant support with affidavits a motion for a new trial made on the grounds set forth under § 29-2101(1). Moreover, it was undisputed that the court mistakenly allowed the alternate to be present during an hour of jury deliberations without any instruction or other safe- guards limiting her participation. In our de novo review, we hold that the court had a manda- tory duty under § 29-2102 to conduct an evidentiary hearing. Madren’s motion for new trial set forth facts which, if true, would materially affect his substantial rights. The constitu- tional right to trial by a fair and impartial jury that is affected by a stranger’s presence in the jury room is a substantial right. 40 As discussed, there is a rebuttable presumption of prej- udice when an alternate, who should have been discharged, is mistakenly allowed with the jury during deliberations. 41 Both Madren and the State were entitled to a hearing on the motion for new trial in order to determine the extent and nature of any communications by the alternate regarding the case and whether the alternate’s presence or communications materially influenced the jury, thus giving the State an opportunity to 39 State v. Hudson, 268 Neb. 151 , 680 N.W.2d 603 (2004). 40 See Menuey, supra note 5. 41 See, id.; Simants, supra note 19 .  - 457 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports STATE v. MADREN Cite as 308 Neb. 443 rebut the presumption of prejudice that arose by virtue of the alternate’s unauthorized presence. The district court’s general request to the jury, that any of its members should “please let me know” if, in reaching the verdict, they “consider[ed] any of the conversations or partici- pation” of the alternate juror while she was with them in the jury room, was not an adequate replacement for individual- ized questioning of whether the jurors were influenced. And, under these facts, the court’s instruction to begin deliberations “from scratch” did not nullify its mandatory duty to conduct an evidentiary hearing for purposes of determining if the pre- sumption of prejudice had been rebutted. Such an instruction is not a panacea for every violation of the sanctity of juror deliberations. The requirement in the 2020 amendment to § 29-2004 to instruct the jury to begin its deliberations anew if the alternate replaces a juror after deliberations have started does not sug- gest that the Legislature believes such an instruction could cure improper influence by alternates who are mistakenly left in deliberations with no instruction as to how to conduct themselves and where the extent of communications by the alternates are unknown. It is instead a measure that assumes there has been no improper influence and merely fully includes the alternate in the deliberations after the alternate has replaced a juror. This is not to say that an instruction to begin deliberations anew after the sanctity of jury deliberations has been violated is irrelevant, but the effectiveness of such an instruction in erasing all prejudice from the presumed unauthorized influence of the jurors necessarily depends on the extent of the influence. And because the court refused to conduct an evidentiary hear- ing, it is precisely this that we do not know. Without information as to whether and to what extent the alternate communicated with the jury during deliberations, we cannot determine the merits of whether the court erred in denying the motion for a new trial. But we can determine that  - 458 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports STATE v. MADREN Cite as 308 Neb. 443 the court erred in doing so without first conducting an eviden- tiary hearing. The facts of this case are similar to those presented in State v. Owen, 42 wherein the district court had refused to conduct an evidentiary hearing upon the defendant’s motion for new trial and the Court of Appeals remanded the matter for an evidentiary hearing on the motion. The defendant in Owen had presented affidavits suggesting that the court had informally expounded upon its instruction on the term “reasonable doubt,” when it entered the jury room before evening recess to admonish the jurors concerning their separation, and, further, that jurors had brought dictionary definitions of the term “reasonable doubt” into their deliberations. The Court of Appeals explained that while the alleged violations were not prejudicial per se, due to the lack of an evidentiary hearing, there was insufficient infor- mation to determine whether there was a reasonable possibility that extraneous information or the irregularities of the court’s communications affected the verdict. Thus, the Court of Appeals in Owen held that the district court judge had abused his discretion in failing to recuse himself and allow an evidentiary hearing, which deprived the defendant of her substantial right to determine whether she had been prejudiced by either the alleged further instruction on the burden of proof by the judge or the juror’s production of extra- neous dictionary information. Without expressing any opinion as to whether the alleged misconduct in connection with the jury deliberations occurred or whether it was prejudicial if it occurred, the Court of Appeals vacated the order denying the motion for a new trial and remanded the matter back to the trial court with directions that a judge other than the trial judge rule on the motion for new trial after conducting an eviden- tiary hearing. [11] We likewise find it necessary that the district court’s order denying Madren’s motion for a new trial should be 42 Owen, supra note 20 .  - 459 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports STATE v. MADREN Cite as 308 Neb. 443 reversed and that the matter should be remanded for an evi- dentiary hearing to determine whether Madren was prejudiced by the violation of his right to a fair and impartial jury stem- ming from the alternate’s unauthorized presence with the jury during deliberations. In a jury trial of a criminal case, harmless error exists when there is some incorrect conduct by the trial court which, on review of the entire record, did not materially influence the jury in reaching a verdict adverse to a substan- tial right of the defendant. 43 However, we cannot enter into a harmless error analysis without knowing the extent of the alternate’s participation in the jury deliberations. The Court of Appeals erred in affirming the district court’s denials of Madren’s motions for mistrial and new trial, because the district court erred in failing to hold an evidentiary hearing regarding the alternate juror’s participation in deliberations. We reverse the decision of the Court of Appeals and remand the matter to the Court of Appeals with directions to remand the matter to the district court to conduct the mandated evidentiary hearing as required by § 29-2102(2). Upon remand, nothing in this opinion should be construed to circumscribe the authority of the trial court to establish procedures to protect the integrity of the proceedings. CONCLUSION For the foregoing reasons, we reverse the judgment of the Court of Appeals and remand the matter with directions. Reversed and remanded with directions. 43 State v. Bjorklund, 258 Neb. 432 , 604 N.W.2d 169 (2000), abrogated on other grounds, State v. Mata, 275 Neb. 1 , 745 N.W.2d 229 (2008).

2020-12-03 20:08:49.010352+00

http://www.courts.state.ny.us/reporter/3dseries/2020/2020_07276.htm

Hernandez v Five J's Automotive Ltd. (2020 NY Slip Op 07276) Hernandez v Five J's Automotive Ltd. 2020 NY Slip Op 07276 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. 20595/19 Appeal No. 12558 Case No. 2019-5317 [*1]Sandra Hernandez, Plaintiff-Appellant, v Five J's Automotive Ltd. et al., Defendants-Respondents. Cellino & Barnes, P.C., New York (Jordan S. Finkelstein of counsel), for appellant. Gannon, Rosenfarb & Drossman, New York (Lisa L. Gokhulsingh of counsel), for respondents. Order, Supreme Court, Bronx County (John R. Higgitt, J.), entered June 7, 2019, which, to the extent appealed from as limited by the briefs, denied plaintiff's motion for partial summary judgment as to liability, unanimously reversed, on the law, without costs, and the motion granted. Plaintiff submitted an affidavit in which she stated that she was sitting in the driver's seat of her car while it was legally parked when a "black jeep that was being towed rolled off the tow truck and on top of the rear of [her] vehicle." Defendants did not attempt to offer any nonnegligent explanation as to how the accident occurred in opposition to plaintiff's motion, and thus, they failed to raise an issue of fact. We have considered the parties' remaining arguments and find them unavailing.THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. ENTERED: December 3, 2020

2020-01-17 22:02:13.176405+00

Saiith

*881OPINION. Saiith: Two errors are alleged in the petition filed in this proceeding— (1) that the Commissioner has disallowed the deduction of $33,897.07 of the $42,780.64 claimed as a deduction for executor’s commissions, and (2) that he has disallowed the deduction of $408,275.25 representing the value of a bequest of the income of the estate payable to three charitable institutions. In the estate-tax return the petitioner claimed the deduction of $42,780.64 for executor’s commissions. The respondent has allowed the deduction of only $8,883.57 which he represents was the amount actually paid for executor’s commissions up to May 9, 1927, the date of the mailing of the deficiency notice. lie claims that the amount of $42,780.64 claimed by the petitioner is the amount of executor’s commissions which would have been payable had the whole estate *882been reduced to cash and distributed in a period ordinarily required to administer an estate. He submits, however, that under the provisions of the will the executor is constituted a trustee in respect of the residual estate and that the expenses connected with the administration of the residual estate are in reality expenses incurred in the management of a trust estate of which the executor is acting as trustee. It is the contention of the petitioner, on the other hand, that the amount claimed in the return is not in excess of a reasonable amount; that it is equal to 5 per cent of the value of the corpus of the estate; that that is the ordinary commission of 2% per cent on all sums of money received and 2y2 per cent on all sums of money paid out, which commissions are authorized by the statutes of Georgia; that this amount takes no account of the income of the estate; that executors are entitled to at least 2y2 per cent on income paid out, except that paid to themselves; that the ordinary may allow 3 per cent on the value of the property for delivering it over in kind and that the executor is also entitled to extraordinary compensation in certain instances to be fixed by the ordinary. The evidence shows that the executor had received commissions to June 18, 1929 (including $2,000 for extraordinary compensation connected with certain litigation with reference to the will), of $16,396.41; that in addition he had paid the following amounts which have not been allowed as deductions by the respondent: Court costs- $154. 89 Attorneys’ fees- 4, 200. 00 Surety-bond premium_ 700. 00 Total- 5, 054. 89 that he has also paid additional premiums on his surety bond not included in the proceeding; and that an additional amount of $1,500 to $2,000 will probably be paid as attorneys’ fees. Petitioner also submits that if the income of the estate is $32,000 a year for 30 years, the aggregate gross income over that period will be $960,000; that 5 per cent of that amount is $38,000; and that “ if this income were added to the value of the estate and 5% upon this aggregate amount were taken, the commissions would amount to Eighty-nine Thousand ($89,000) Dollars.” The applicable provision of the taxing statute is section 303(a) (1) of the Eevenue Act of 1924, which permits an estate to deduct from gross income: Such amounts for funeral expenses, administration expenses, claims against the estate, unpaid mortgages upon, or any indebtedness in respect to, property (except, in the case of a resident decedent, where such property is not situated in the United States), to the extent that such claims, mortgages, or indebtedness were incurred or contracted bona ñde and for a fair consideration in *883money or money’s worth, losses incurred during the settlement of the estate arising from fires, storms, shipwreck, or other casualty, or from theft, when such losses are not compensated for by insurance or otherwise, and such amounts reasonably required and actually expended for the support during the settlement of the estate of those dependent upon the decedent, as are allowed by the laws of the jurisdiction, whether within or without the United States, under which the estate is being administered, but not including any income taxes upon income received after the death of the decedent, or any estate, succession, legacy, or inheritance taxes. The Commissioner’s Regulations 68, relating to estate tax under the Revenue Act of 1924, recognizes that an executor may also act as a trustee and provides that expenses incurred by an executor as trustee in the administration of the estate may not be deducted from the gross estate. Article 32, Regulations 68, is as follows: Administration expenses. — The amounts deductible from the gross estate as “ administration expenses ” are such expenses as are actually and necessarily incurred in the administration of the estate; that is, in the collection of assets, payment of debts, and distribution among the persons entitled. The expenses contemplated in the law are such only as attend the settlement of an estate by the legal representative preliminary to the transfer of the property to individual beneficiaries or to a trustee, whether such trustee is the executor or some other person. Expenditures not essential to the proper settlem.ent of the estate, but incurred for the individual benefit of the heirs, legatees, or devises, may not be taken as deductions. Administration expenses include (1) executor’s commissions; (2) attorney’s fees; (3) miscellaneous expenses. Each of these classes is considered separately in Articles 33 to 35, inclusive. Article 33, Regulations 68, relating to executor’s commissions, further provides that: Executor’s commissions. — The executor or administrator, in filing the return, may deduct his commissions in such an amount as has actually been paid or which at that time it is reasonably expected will be paid, but no deduction may be taken if no commissions are to be collected. Where the amount of the commissions has not been fixed by decree, of the proper court, the deduction will be allowed on the final audit of the return provided: (1*) That the Commissioner is reasonably satisfied that the commissions claimed will be paid; (2) that the amount entered as a deduction is within the amount allowable by the laws of the jurisdiction wherein the estate is being administered; and (3) that it is in accordance with the usually accepted practice in said jurisdiction in estates of similar size and character. Where the commissions claimed have not been awarded by the proper court the Commissioner on final audit may disallow the deduction in part or in whole, as the circumstances in his judgment justify, subject to such future adjustment as the facts may later require. If the deduction is allowed in advance of payment and payment is thereafter waived, it shall be the duty of the executor to notify the Commissioner and pay the tax resulting therefrom, together with interest. Executors should note that the commissions received as compensation for their services constitute taxable income and that the amounts received or receivable by them as such compensation are cross-referenced for income-tax purposes. A bequest or devise to the executor in lieu of commissions is not deductible. Where, however, the decedent fixed by his will the compensation payable to the *884executor for services to be rendered in the administration of the estate, deduction may be taken to the extent that the amount so fixed does not exceed the compensation allowable by the local law or practice. Amounts paid as trustees’ commissions do not constitute expenses of administration and are not deductible, whether received by the executor acting in the capacity of a trustee or by a separate trustee as such. It will be noted that the statute allows the deduction from the gross estate of “ such amount for funeral expenses, administration expenses * * * as are allowed by the laws of the jurisdiction, * * * under which the estate is being administered * * We have held that proper administration expenses actually paid or incurred, such as executors’ commissions and attorneys’ fees, are allowable deductions, even though they have not been allowed by order of the court having jurisdiction. Samuel E. A. Stern, 2 B. T. A. 102; Estate of Jacob Voelbel, 7 B. T. A. 276; John A. Loetscher, 14 B. T. A. 228; Irving Bank-Columbia Trust Co., 16 B. T. A. 897. The commissions of an administrator in Georgia are controlled by sections 4062 to 4068, both inclusive, of the Code of Georgia. These sections are as follows: Sec. 4062. Ordinary convmissions. As a compensation for his services, the administrator shall have a commission of two and one-half per cent, on all sums of money received by him on account of the estate (except money loaned by him and repaid to him), and a like commission on all sums paid out by him, either to debts, legacies or distributees. Such commissions are part of the expense of administration, and should be paid from the general estate, if any. If none, then to be deducted from the debt or legacy paid. Sec. 4003. On interest made. If, in the course of administration, the administrator shall receive interest on money loaned by the intestate, or by himself as administrator, and shall return the same to the ordinary so as to become chargeable therewith as a part of the corpus of the estate, he shall be entitled to ten per cent, additional commission on all such amounts of interest made. Sec. 4064. Has no •commissions, when. The administrator is entitled to no commissions on debts, legacies, or distributive shares paid to himself; and if there are more administrators than one, the division of the commissions allowed them, among themselves, shall be according to the services rendered by each. Sec. 4065. None for delivering property in kind. No commissions shall be paid to any administrator or executor for delivering over any property in kind; but the ordinary may allow reasonable compensation for such service, not exceeding three per cent, on the appraised value. If, however, land is worked by any trustee for the benefit- of the parties in interest, the ordinary may, in his discretion, allow to such trustee additional compensation for such services, in no case exceeding ten per cent, of the annual income of the property so managed. Skc. 4066. Traveling and other expenses. An administrator, in the discharge of his duty, required to travel out of his county shall be allowed the amounts of his actual disbursements, to be ascertained by his own statements under oath. The ordinary may also allow him a reasonable compensation for the *885time devotee! to this service; Provided, under the circumstances, the ordinary adjudges such additional compensation a proper charge against the estate. Sec. 4067. Extra compensation. In other cases of extraordinary services, extra compensation may be allowed by the ordinary. But in no case is the allowance of extra compensation by the ordinary conclusive upon the parties in interest. Sec. 4068. No fund shall pay commissions hut once. Where from any cause a trust fund shall pass through the hands of several administrators or other trustees, by reason of death, removal, resignation or otherwise of the first qualified trustee,' such fund shall not be subject to diminution of charges of commissions by each successive trustee holding and receiving in the same right; but commissions for receiving the fund shall be paid to the first trustee, or his representative, and commissions for paying out shall be paid to the trustee actually disbursing the fund, and no commission shall be paid for handing over the fund to the successor of a trustee. Commissions for an executor are the same as those for an administrator. (Sec. 3892.) Lamar v. Lamar, 118 Ga. 684; 45 S. E. 498. The provisions of the Code of Georgia are not unlike those of most States with respect to the settlement of the estates of deceased persons. The executor shortly after he qualifies is required to give notice to debtors of his appointment as executor and creditors of the estate are given one year in which to file claims against the estate. If claims are not duly filed the creditor loses his right to recover from the estate. Any person interested as distributee or legatee may after the expiration of one year from the grant of administration cite the administrator to appear before the ordinary for the settlement of his accounts, or, if the administrator chooses, he may cite all of the distributees to be present at the settlement of his accounts by the ordinary; such settlement shall be conclusive upon the administrator and upon all the distributees who are present at the hearing. (Sec. 403.) Under the will of the decedent the executor is given the authority and power of a trustee. The decedent by “ Item ten ” of her will expressly confers upon him: * * * Tbe authority and power to sell any part of my said estate, as he may deem best, at public or private sale, with or without notice, and without any order of court, for the purpose of paying legacies or for the purpose of changing investments or for the purpose of making a division, where a division is called for, under the terms of my will, between the legatees named therein. The respondent’s regulations specifically provide that trustees’ fees may not be deducted from the gross estate. Ordinarily they are paid out of the income of the estate and not out of the corpus. A trust may devolve upon an executor where no trustee is named in the will. The rule is stated in 40 Cyc. 1764—1765, as follows: * * * And a trust may devolve upon the executor by implication, as where he is directed to invest or hold tiie property and disburse the income, *886or to perform other trust duties which are beyond the scope of his duties as executor. So, if the testator, by his will, has not placed his property in trust with any other trustee than the executor, it is the province and duty of the latter to act as trustee, and he may be held as such. * * * It has also been held that under a will giving a share of testator’s estate to his daughter to be invested by executors for her benefit, the interest to be paid semiannually, and providing that on her death without issue the proceeds of the shares should be divided between her brothers and sisters, a trust was created vesting legal title in executors as trustees. Close v. Farmers’ Loan & Trust Co., 195 N. Y. 92; 87 N. E. 1005. In Schouler on Wills, 5th ed., vol. 2, sec. 1248, the following is said in this connection: The intent to create a trust under a will may be gathered from the scope of the instrument aside from technical words; and where consequently, the duties imposed are active so as to render the possession of the estate convenient and reasonably necessary, the executors will be deemed trustees for the performance of their duties to the same extent as though declared to be so by the most explicit language. The respondent in his regulations has defined administration expenses as “ such expenses as are actually and necessarily incurred in the administration of the estate; that is, in the collection of assets, payment of debts, and distribution among the persons entitled.” (Art. 32, Reg. 68, quoted above.) This appears to us to be a reasonable regulation for the carrying out of the provisions of the estate-tax law. It is not to be presumed that Congress intended that the question of the correct tax liability of a decedent’s estate should await final discharge of the executor where in effect the executor acts as trustee of the estate over a long period of years. The executor is required under section 304 of the Revenue Act of 1924, within two months after the decedent’s death or within a like period after qualifying as executor, to give written notice thereof to the collector and to file with the collector within one year from the death of the decedent a return under oath in duplicate setting forth the value of the gross estate of the decedent at the time of his death and the deductions allowed under section 303, and the tax is payable one year after the decedent’s death. These provisions contemplate an early determination of the tax liability. They certainly do not contemplate a determination of a liability dependent upon circumstances which may eventuate in the distant future. Although the executor in the instant proceeding was not designated a trustee by the will of the decedent, and although the administrator of the estate was still under the jurisdiction of the ordinary at the date of the hearing in 1929, we think that from and after the date in which the accounts receivable were collected and the debts paid, the *887executor was acting as trustee. Apparently this was not later than May 9, 1927, the date of the mailing of the deficiency notice. No evidence has been submitted to the contrary. All of the expenses connected with the litigation in the case of Marion M. Jackson v. William Russell Eagan et al., referred to in our findings were paid by order of the court from the income of the estate and not as administration expenses. We are therefore of the opinion that upon the record the disallowance by the Commissioner of $33,897.07 of the executor’s commissions- is proper and the determination of the respondent upon this point is sustained. In the estate-tax return petitioner claimed the deduction from the gross estate of $408,275.25 as the value of certain bequests of income to three charitable institutions. The respondent has disallowed this deduction “ upon the ground that the bequests had no ascertainable value as at the date of decedent’s death, and further, that the bequests were void under the laws of the State of Georgia.” The deduction was claimed under the provision of section 303 (a) (3) of the Revenue Act of 1924, which, so far as is material, provides for the deduction from the gross estate of: The amount of all bequests, legacies, clevises, or transfers, * * * to or for the use of any corporation organized and operated exclusively for religious, charitable, scientific, literary, or educational purposes, including the encouragement of art and the prevention of cruelty to children or animals, no part of the net earnings of which inures to the benefit of any private stockholder or individual, or to a trustee or trustees, or a fraternal society, order, or association operating under the lodge system, but only if such contributions or gifts are to be used by such trustee or trustees, or by such fraternal society, order, or association, exclusively for religious, charitable, scientific, literary, or educational purposes, or for the prevention of cruelty to children or animals. * * * Although the disallowance of the deduction of the claimed value of the bequest by the respondent was based upon the ground that they had no ascertainable value at the date of decedent’s death and also that they were void under the laws of the State of Georgia, it is necessary first to consider whether the bequests are of such a character as to be a legal deduction from the gross estate in any event. The respondent contends that under the terms of the will the institutions named therein acquired no vested interest in the corpus of the residual estate; that at the most the charities acquired only a right to share in the annual income, if any, of the residual estate for a term of years; and that it is impossible to determine as of the date of the death of the decedent what amount, if any, of the annual income of the estate would be available for distribution to the various institutions. The petitioner, on the other hand, contends that the bequest to the charitable institutions is to pay over the net income to the legatees in periodical payments during a period of years and *888possibly to pay both the corpus and the income to the charitable beneficiaries; that the legacy meets every requirement of a vested estate. Remainders are either vested or contingent. A vested remainder is one limited to a certain person at a certain time, or upon tlie happening of a necessary event. A contingent remainder is one limited to an uncertain person or upon an event which may or may not happen. (Ga. Code, sec. 3676 (1910).) Estate is the quantity of interest which an owner has in property. In this State it is applicable equally to realty and personalty. Any estate may be created in the latter that can be created in the former, and the rules of construction as to both shall be the same. (Ga. Code, sec. 3656.) No question is raised in the present proceeding as to the value of the gross estate. It was $826,807.92. The value of any bequests to charitable institutions deductible under section 303(a)(8) of the Revenue Act of 1924 is deductible from the gross estate. The evidence conclusively proves that the institutions which were entitled to the net income of the residual estate of the decedent from the date of her death to May 10, 1950, were charitable institutions within the contemplation of the taxing statute. We assume that no question could be raised that if the charitable institutions were to receive the remainder of the estate subject to a' life estate the value of such remainder would be deductible from the gross estate. Ithaca Trust Co. v. United States, 279 U. S. 151. It was there held that the value of bequests in trust to charitable purposes following a life estate is deductible from decedent’s gross estate, where the residuary estate was bequeathed to the testator’s wife for her life with authority to use from the principal any sum “ that may be necessary to suitably maintain her in as much comfort as she now enjoys,” th§ principal that could be so used being fixed in fact, and capital all being stated in definite terms of money, and the income of the estate being more than sufficient to maintain the widow as required. It seems self-evident that, where the estate of a decedent is made up of two estates, one an estate for life or for years, and the other a remainder, the values of the two estates constitute the gross estate of the decedent. It further appears to us that, where an estate for years is given to a charitable institution, the value of that estate constituting the substance of the bequest is a legal deduction (from gross income under section 303(a) (3) of the taxing statute, l^he language used by the court in Irwin v. Gavit, 268 U. S. 161, is apposite here. * * * Apart from technicalities we can perceive no distinction relevant to the question before us between a gift of the fund for life and a gift of the income from it. * * * In the instant proceeding the respondent has made no argument that the value of the gift of the income of an estate to charitable institutions is not a legal deduction from the gross estate. Neither *889has it been argued by the respondent that the bequest of the income had no value. The substance of the bequest was the right to receive the income of the net estate. If it had a value, we think it was a legal deduction from gross income. The first objection made by the respondent to the disallowance of the deduction of any value for the bequests to charitable institutions is that they “ had no ascertainable value as at the date of decedent’s death.” This is apparently predicated upon the provision of the will to the effect that the income of the estate might be utilized in the discretion of the executor to relieve the actual need arising through no fault of their own of two grandchildren of the decedent until William Russell Eagan should attain the age of 30 years. It is argued that it can not be determined what part of the net income, if any, of the estate in future years will be required to meet the needs of such grandchildren. The evidence is to the effect, however, that the mother of the testator’s two grandchildren was in possession of an unencumbered estate of a value of $800,000, from which she was receiving a large income annually, which, in 1928, amounted to approximately $22,000; that she was able and willing to provide for her children without in any wise looking to the estate of the decedent; that she was willing and desirous that the income of the estate should be used for the purpose of supporting the charitable institutions to which she was devoted. The respondent contends that the bequests to the charitable institutions were so contingent that the value of the bequests could not be determined. He relies upon Humes v. United States, 276 U. S. 487. In that case it was held that under section 403 of the Revenue Act of 1918, the present value of contingent bequests to charities in a will as determined by the combination and adjustment of mortality tables as to whether a 15-year-old girl would marry, or, if she did, would die without issue before the age of 30, 35, or 40, is not deductible from the gross estate in determining the value of the net estate, since neither the taxpayer nor the revenue officer could do more than guess at the value of the. contingency. The court stated: One may guess, or gamble on, or even insure against, any future event. The Solicitor General tells us that Lloyds of London will insure against having twins. But the fundamental question in the case at bar is not whether this contingent interest can be insured against or its value guessed at, but what construction shall be given to a statute. Did Congress, in providing for the determination of the net estate taxable, intend that a deduction should be made for a contingency the actual value of which cannot be determined from any known data? Neither taxpayer, nor revenue officer — even if equipped with all the aid which the actuarial art can supply — could do more than guess at the value of this contingency. It is clear that Congress did not intend that a deduction should be made for a contingent gift of that character. * * * *890The facts before us in this proceeding are substantially different from those which were before the court in the above cited case. Here the charitable institutions were to receive the net income of the estate to May 10, 1950, whether William Russell Eagan were alive or dead on that date. If the amount of the annual net income of the estate from the date of the death of the decedent to May 10, 1950, can be determined, the computation of the present value at the date of the death of the decedent of the right to receive such net income of the estate presents no insuperable actuarial difficulty. The situation in this case is not dissimilar to that which obtained in Herron v. Heiner, 24 Fed. (2d) 745. In that case the will disposed of a large estate in trust, the entire income from which was to be donated to religious, educational or charitable purposes, with the exception of certain annuities, with direction to appropriate so much of the income as was “ deemed necessary and reasonable ” to the support and maintenance of a brother and sister of testator who were incurably insane and in a hospital for the insane where they had been supported by testator for years. The court held: * * * Tlie latter provision could not be construed as giving tbe trustees power to appropriate tbe entire income of tbe estate for support and maintenance of sucb two persons and thus eliminate entirely tbe religious, educational, and charitable bequests, deductible under Revenue Act 1918, § 403 * * * for tbe purposes of estate tax, and render tbe entire estate taxable, but that effect must be given to tbe limitation of tbe trustees to such sums as were necessary and reasonable for support and maintenance. See also First National Bank of Birmingham v. Snead, 24 Fed. (2d) 186; Mercantile Trust Co., Executor, 13 B. T. A. 85; Ithaca Trust Co. v. United States, supra. In the light of all of the evidence in this case we think the possibility that in future years the executor of the estate acting as trustee and using any part of the income of the estate for the actual need of the two grandchildren is so remote that it may be disregarded. The second objection of the respondent to the deduction of any amount in respect of the bequest of the income to the charitable institutions is that the bequest was void under the laws of the State of Georgia. This objection is based on section 3851 of Park’s Annotated Code of Georgia, which provides: Charitable devises. No person leaving a wife or child, or descendants of child, shall, by will, devise more than one third of bis estate to any charitable, religious, educational, or civil institution, to tbe exclusion of such wife or child; and in all cases the will containing sucb devise shall be executed at least ninety days before tbe death of the testator, or sucb devise shall be void. This was the point litigated in the case of Marion M. Jackson v. William Russell Eagan et al., referred to in the findings of fact. The court entered its decree holding that the charitable institutions were entitled to take the net income of the estate. No appeal was *891taken from such decision. The court did not set out in any opinion brought to our attention the reasons for so deciding; but we must assume that it found that the bequest was not in conflict with the section above referred to. In any event the bequest would not be violative of section 3851 of the Code of Georgia unless its value were in excess of one-third of decedent’s estate. Although the petitioner claims that the value of the bequest was in excess of one-third of the gross estate, we think that the evidence does not support such valuation. The computation by which the petitioner arrived at a value of $408,275.25 for the bequest of income to the charitable institutions is not shown by the record. Neither does the record show the value of the net estate of the decedent. The evidence shows that the net income of the estate from the date of decedent’s death to June 1, 1929, over and above that required for meeting the executor’s fees, attorneys’ fees, court costs, and operating expenses of the estate was $56,233.24, of which amount $42,321.80 had been paid to the charitable institutions, leaving a balance in the hands of the executor applicable for such payments of $13,911.44. The petitioner contends in his brief that the normal income of the estate was in excess of $30,000 per annum. The gross income of the estate for the fiscal year ended June 30, 1927, was $37,107.03; for the fiscal year ended June 30, 1928 (including a refund from the Government on account of income tax erroneously collected from the estate for prior years of $2,289.79), $35,254.13; and for the fiscal period July 1, 1928, to June 18, 1929, $32,541.41. The expenses of the estate for these periods are not in evidence. We simply know that the net income of the estate available for the charitable and educational institu-. tions from the date of the decedent’s death to June 1, 1929, was $56,233.24, or at the rate of $12,638.49 per annum. The evidence indicates that in future years the charitable institutions might expect to get as much from the estate annually as accrued to them annually from the date of the decedent’s death to the_ date of hearing; in other words, that the net income of the estate accruing to the use of the charitable institutions would average as much as $12,638.49 per annum to May 10, 1950. The present .worth at the date of the death of the decedent of the right to receive that amount of money per annum, computed on a 4 per cent interest table (authorized by article 13 of Regulations 68), was $199,343.81. We therefore determine this amount to be the value of the bequests to charity and that such amount is a legal deduction from the gross estate in the determination of the net estate and of the tax liability involved in this proceeding. Reviewed by the Board. Judgment will be entered wnder Rule 50.

2021-03-19 05:09:01.357862+00

https://www.nebraska.gov/apps-courts-epub/public/viewOpinion?docId=N00007623PUB

Nebraska Supreme Court Online Library www.nebraska.gov/apps-courts-epub/ 03/19/2021 12:09 AM CDT - 460 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports STATE FARM FIRE & CAS. CO. v. TFG ENTERS. Cite as 308 Neb. 460 State Farm Fire & Casualty Company, appellee, v. TFG Enterprises, LLC, and Jeffrey Leonard, appellants, and Jeffrey Barkhurst, appellee. ___ N.W.2d ___ Filed February 19, 2021. No. S-20-271. 1. Insurance: Contracts: Appeal and Error. The interpretation of an insurance policy is a question of law, in connection with which an appel- late court has an obligation to reach its own conclusions independently of the determination made by the trial court. 2. Summary Judgment: Appeal and Error. In reviewing a summary judgment, an appellate court views the evidence in the light most favorable to the party against whom the judgment is granted and gives such party the benefit of all reasonable inferences deducible from the evidence. 3. ____: ____. An appellate court will affirm a lower court’s grant of sum- mary judgment if the pleadings and admitted evidence show that there is no genuine issue as to any material facts or as to the ultimate inferences that may be drawn from the facts and that the moving party is entitled to judgment as a matter of law. 4. Insurance: Contracts: Liability: Words and Phrases. An exclusion in an insurance policy is a limitation of liability, or a carving out of certain types of loss, to which the insurance coverage never applied. 5. Insurance: Contracts. When the terms of an insurance contract are clear, a court gives them their plain and ordinary meaning as a reason- able person in the insured’s position would understand them. 6. Insurance: Contracts: Appeal and Error. When an insurance contract is ambiguous, an appellate court will construe the policy in favor of the insured. 7. Insurance: Contracts: Words and Phrases. Regarding words in an insurance policy, the language should be considered not in accordance with what the insurer intended the words to mean but according to  - 461 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports STATE FARM FIRE & CAS. CO. v. TFG ENTERS. Cite as 308 Neb. 460 what a reasonable person in the position of the insured would have understood them to mean. 8. Contracts: Words and Phrases. A contract is ambiguous when a word, phrase, or provision in the contract has, or is susceptible of, at least two reasonable but conflicting interpretations or meanings. 9. Insurance: Contracts. The language of an insurance policy should be read to avoid ambiguities, if possible, and the language should not be tortured to create them. Appeal from the District Court for Douglas County: J. Michael Coffey, Judge. Affirmed. William J. Hale, Thomas C. Dorwart, and Andrew W. Simpson, of Goosmann Law Firm, P.L.C., for appellants. Patrick S. Cooper and Brian J. Fahey, of Fraser Stryker, P.C., L.L.O., for appellee State Farm Fire & Casualty Company. Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ. Papik, J. TFG Enterprises, LLC (TFG), and its principal, Jeffrey Leonard, appeal from a district court order finding that State Farm Fire & Casualty Company (State Farm) had no obliga- tion under an insurance policy to defend or indemnify them in a lawsuit. The lawsuit alleged that TFG concealed facts and made misrepresentations regarding the condition of a property it sold. Because we agree with the district court that State Farm had no potential liability under the policy, we affirm. BACKGROUND Underlying Lawsuit and Request for Coverage. In March 2019, Jeffrey Barkhurst filed a lawsuit against TFG and Leonard in the district court for Douglas County (the underlying lawsuit). Barkhurst alleged that when he purchased a house from TFG in August 2015, TFG failed to disclose and actively concealed several defects, including the intrusion  - 462 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports STATE FARM FIRE & CAS. CO. v. TFG ENTERS. Cite as 308 Neb. 460 of water, the presence of mold, substandard repairs, and struc- tural issues. Based on these allegations, Barkhurst asserted that TFG and Leonard were liable for breach of contract, negli- gent misrepresentation, and fraudulent concealment. Barkhurst claimed he was entitled to receive in damages the costs neces- sary to bring the property to its represented condition at the time of sale. State Farm had previously issued TFG a “Rental Dwelling Policy of Insurance” (the rental policy) on January 6, 2015. TFG and Leonard submitted a claim under the rental policy requesting that State Farm provide a defense in the underlying lawsuit. State Farm agreed to defend TFG and Leonard under a reservation of rights. State Farm’s Declaratory Judgment Action. State Farm subsequently filed the declaratory judgment action at issue in this appeal. State Farm sought a declaration that it owed no coverage obligations to TFG or Leonard under several provisions of the rental policy. State Farm alleged that it owed no coverage obligations under the portion of the rental policy initially extending liabil- ity coverage to TFG. That portion of the policy provided that State Farm would indemnify and defend TFG “[i]f a claim is made or a suit is brought against any insured for damages because of bodily injury, personal injury, or property damage to which this coverage applies, caused by an occurrence, and which arises from the ownership, maintenance, or use of the insured premises . . . .” (Emphasis omitted.) The rental policy defined “occurrence” as “an accident, including exposure to conditions” which results in “a. bodily injury; b. property damage; or c. personal injury[,] during the policy period.” (Emphasis omitted.) State Farm alleged that it owed no cover- age to TFG because there had been no “occurrence” and no “property damage.” State Farm also alleged that it owed no coverage obliga- tions because of several exclusions in the rental policy. The  - 463 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports STATE FARM FIRE & CAS. CO. v. TFG ENTERS. Cite as 308 Neb. 460 exclusions relied upon by State Farm provided that there would be no liability coverage for “property damage to prop- erty owned by any insured”; “property damage to property rented to, occupied or used by or in the care of the insured”; or “property damage or personal injury to premises [the insured] sell[s], give[s] away, or abandon[s], if the property damage, or personal injury arises out of those premises.” (Emphasis omitted.) Summary Judgment. State Farm filed a motion for summary judgment. At the hearing on the motion for summary judgment, State Farm offered and the district court received an affidavit signed by its counsel. Attached to the affidavit were a copy of the rental policy, a copy of the complaint in the underlying lawsuit, copies of letters State Farm sent to TFG and Leonard reserv- ing its rights, and discovery responses of TFG and Leonard. In the discovery responses, TFG and Leonard admitted that they purchased the house at issue in January 2015 and that none of the conditions or defects identified in Barkhurst’s lawsuit existed when it purchased the property. TFG and Leonard also admitted that from the time they purchased the house in January 2015 until the time they sold it in August 2015, they used the house and the house was in their care and possession. In response to an interrogatory asking them to describe in detail what they contended was the “occurrence” triggering coverage under the rental policy, TFG and Leonard objected that the question called for a legal conclusion. TFG and Leonard did not offer any evidence in opposition to State Farm’s motion for summary judgment. The district court granted State Farm summary judgment. It found State Farm owed no coverage obligations for three reasons. First, the district court found that any breaches of the contract between Barkhurst and TFG, and any fraudulent concealment or negligent misrepresentations by TFG, did not cause property damage as required to trigger coverage under the rental policy. Second, it determined that the allegations  - 464 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports STATE FARM FIRE & CAS. CO. v. TFG ENTERS. Cite as 308 Neb. 460 of breach of contract, fraudulent concealment, and negligent misrepresentation did not meet the definition of an “occur- rence,” because they were not accidental. It also determined that the exclusions relied upon by State Farm barred coverage. TFG and Leonard now appeal. ASSIGNMENTS OF ERROR TFG and Leonard assign three errors on appeal. They con- tend, restated, that the district court erred (1) by finding that there was no “occurrence” which triggered coverage, (2) by finding that any “occurrence” did not cause property damage for purposes of the rental policy, and (3) by finding that the exclusions barred coverage. STANDARD OF REVIEW [1] The interpretation of an insurance policy is a question of law, in connection with which an appellate court has an obliga- tion to reach its own conclusions independently of the determi- nation made by the trial court. Jones v. Shelter Mut. Ins. Cos., 274 Neb. 186 , 738 N.W.2d 840 (2007). [2] In reviewing a summary judgment, an appellate court views the evidence in the light most favorable to the party against whom the judgment is granted and gives such party the benefit of all reasonable inferences deducible from the evidence. Id. [3] An appellate court will affirm a lower court’s grant of summary judgment if the pleadings and admitted evidence show that there is no genuine issue as to any material facts or as to the ultimate inferences that may be drawn from the facts and that the moving party is entitled to judgment as a matter of law. State Farm Fire & Cas. Co. v. Dantzler, 289 Neb. 1 , 852 N.W.2d 918 (2014). ANALYSIS In support of their first two assignments of error, TFG and Leonard argue that the district court was mistaken to consider only the allegations of Barkhurst’s lawsuit in determining  - 465 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports STATE FARM FIRE & CAS. CO. v. TFG ENTERS. Cite as 308 Neb. 460 whether there was an “occurrence” and whether such an occur- rence caused property damage. They contend that because there is evidence that the defects to the house were not present when TFG purchased it, there is a genuine issue of material fact as to whether those defects were caused by some not yet identified accident that took place while TFG owned the prop- erty, which they suggest might be revealed in the adjudication of the underlying lawsuit. They assert the rental policy would provide coverage if such an accident could be identified and thus State Farm is obligated to provide TFG and Leonard with a defense. We are skeptical that TFG and Leonard have created a gen­ uine issue of material fact as to whether there was an “occur- rence” under the rental policy and whether the underlying lawsuit is a suit for property damage, but it is unnecessary for us to reach those questions. As we will explain, even if it is assumed that the defects in the house were caused by an acci- dent that took place while TFG owned the property and that the underlying lawsuit is a suit brought for property damage and thus falls within the initial grant of coverage in the rental policy, the exclusions relied upon by State Farm would still bar coverage. [4,5] An exclusion in an insurance policy is a limitation of liability, or a carving out of certain types of loss, to which the insurance coverage never applied. See, e.g., D & S Realty v. Markel Ins. Co., 280 Neb. 567 , 789 N.W.2d 1 (2010). To determine whether an exclusion applies, the terms of the insur- ance policy must be interpreted. See, e.g., Cincinnati Ins. Co. v. Becker Warehouse, Inc., 262 Neb. 746 , 635 N.W.2d 112 (2001). A court construes insurance contracts like other con- tracts, according to the meaning of the terms that the parties have used. Merrick v. Fischer, Rounds & Assocs., 305 Neb. 230 , 939 N.W.2d 795 (2020). When the terms of an insurance contract are clear, a court gives them their plain and ordinary meaning as a reasonable person in the insured’s position would understand them. Id.  - 466 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports STATE FARM FIRE & CAS. CO. v. TFG ENTERS. Cite as 308 Neb. 460 We read the exclusions in the rental policy to exclude coverage for the damages claimed in the underlying lawsuit. As we have noted, the exclusions section of the rental policy provided that the liability coverage did not apply to “property damage to property owned by any insured”; “property damage to property rented to, occupied or used by or in the care of the insured”; and “property damage or personal injury to premises [the insured] sell[s], give[s] away, or abandon[s], if the prop- erty damage, or personal injury arises out of those premises.” (Emphasis omitted.) To the extent that, as TFG and Leonard contend, the underlying lawsuit was one for property damage to the house, it falls squarely within each of these exclusions. It is undisputed that the house was owned, in the care of, and then sold by TFG. We are not blazing a new trail by finding that there is no possibility of coverage under the exclusions in the rental policy. Many other courts have found that similar insurance policies containing exclusions for property damage to property owned by or occupied by the insured provide no liability cov- erage when the insured is sued for making misrepresentations in the sale of property. See, e.g., Allstate Ins. Co. v. Chaney, 804 F. Supp. 1219 (N.D. Cal. 1992); State Farm Fire and Cas. Co. v. Neumann, 698 F. Supp. 195 (N.D. Cal. 1988); Shelter Mut. Ins. Co. v. Ballew, 203 S.W.3d 789 (Mo. App. 2006); 1st Londonderry Dev. Corp. v. CNA Ins., 140 N.H. 592 , 669 A.2d 232 (1995). Similarly, many courts have found that insurance policies containing exclusions for property damage to property that is sold by the insured provide no liability coverage for lawsuits alleging misrepresentations in the sale of property. See, e.g., State Farm Fire and Cas. Co. v. Wimberly, 877 F. Supp. 2d 993 (D. Haw. 2012); Stull v. American States Ins. Co., 963 F. Supp. 492 (D. Md. 1997); Borden, Inc. v. Affiliated FM Ins. Co., 682 F. Supp. 927 (S.D. Ohio 1987). [6,7] The only argument TFG and Leonard can muster in opposition to the district court’s conclusion that the exclu- sions barred coverage is that the exclusions are ambiguous. In  - 467 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports STATE FARM FIRE & CAS. CO. v. TFG ENTERS. Cite as 308 Neb. 460 support of this argument, TFG and Leonard correctly observe that when an insurance contract is ambiguous, we will con- strue the policy in favor of the insured. See Henn v. American Family Mut. Ins. Co., 295 Neb. 859 , 894 N.W.2d 179 (2017). They also correctly point out that words in an insurance policy are to be interpreted not in accordance with the insurer’s intent, but what a reasonable person in the position of the insured would have understood them to mean. See id. But even with these principles in mind, we discern no ambiguity. [8,9] A contract is ambiguous when a word, phrase, or provi- sion in the contract has, or is susceptible of, at least two rea- sonable but conflicting interpretations or meanings. American Fam. Mut. Ins. Co. v. Wheeler, 287 Neb. 250 , 842 N.W.2d 100 (2014). Further, the language of an insurance policy should be read to avoid ambiguities, if possible, and the language should not be tortured to create them. Cincinnati Ins. Co. v. Becker Warehouse, Inc., 262 Neb. 746 , 635 N.W.2d 112 (2001). TFG and Leonard offer no reasonable alternative interpretation of the exclusions, and there is thus no basis for a finding that the exclusions are ambiguous. Given the plain language of the exclusions, State Farm had no potential liability from the underlying lawsuit under the rental policy. It thus had no duty to defend or indemnify TFG and Leonard. See Merrick v. Fischer, Rounds & Assocs., 305 Neb. 230 , 939 N.W.2d 795 (2020). The district court did not err in granting summary judgment to State Farm. CONCLUSION Because the district court did not err in finding that State Farm owed no coverage obligations to TFG and Leonard, we affirm. Affirmed.

2021-03-19 05:09:02.851693+00

https://www.nebraska.gov/apps-courts-epub/public/viewOpinion?docId=N00007611PUB

Nebraska Supreme Court Online Library www.nebraska.gov/apps-courts-epub/ 03/19/2021 12:09 AM CDT - 373 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports WEAVER v. WEAVER Cite as 308 Neb. 373 Meaghann Shaw Weaver, appellee, v. John Glen Weaver, appellant. ___ N.W.2d ___ Filed February 12, 2021. No. S-19-1058. 1. Divorce: Judgments: Appeal and Error. The meaning of a divorce decree presents a question of law in connection with which an appellate court reaches a conclusion independent of the determination reached by the court below. 2. Equity: Appeal and Error. In an appeal of an equity action, an appel- late court tries the factual questions de novo on the record and reaches a conclusion independent of the findings of the trial court. 3. Appeal and Error. In a review de novo on the record, an appellate court reappraises the evidence as presented by the record and reaches its own independent conclusions with respect to the matters at issue. When evidence is in conflict, the appellate court considers and may give weight to the fact that the trial judge heard and observed the witnesses and accepted one version of the facts rather than another. 4. Child Custody: Appeal and Error. Child custody determinations are matters initially entrusted to the discretion of the trial court, and although reviewed de novo on the record, the trial court’s determination will normally be affirmed absent an abuse of discretion. 5. Divorce: Modification of Decree: Minors. A decree of divorce, insofar as minor children are concerned, is never final in the sense that it cannot be changed, but is subject to review at any time in the light of chang- ing conditions. 6. Modification of Decree: Visitation. The right of parenting time is sub- ject to continual review by the court, and a party may seek modification of a parenting time order on the grounds that there has been a material change in circumstances. 7. Modification of Decree: Child Custody: Proof. Two steps of proof must be taken by the party seeking modification of a child custody order. First, the party seeking modification must show by a preponderance  - 374 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports WEAVER v. WEAVER Cite as 308 Neb. 373 of the evidence a material change in circumstances that has occurred after the entry of the previous custody order and that affects the best interests of the child. Second, the party seeking modification must prove that changing the child’s custody is in the child’s best interests. 8. ____: ____: ____. A custody order will not be modified absent proof of new facts and circumstances arising since it was entered. 9. Divorce: Property Settlement Agreements: Final Orders. A decree is a judgment, and once a decree for dissolution becomes final, its mean- ing, including the settlement agreement incorporated therein, is deter- mined as a matter of law from the four corners of the decree itself. 10. Divorce: Judgments: Intent. The meaning of a decree must be deter- mined from all parts thereof, read in its entirety, and must be construed as a whole so as to give effect to every word and part, if possible, and bring all of its parts into harmony as far as this can be done by fair and reasonable interpretation. Effect must be given to every part thereof, including such effect and consequences that follow the necessary legal implication of its terms, although not expressed. 11. Modification of Decree: Words and Phrases. Material change in cir- cumstances eludes precise and concise definition. 12. ____: ____. Generally speaking, a material change in circumstances is the occurrence of something which, had it been known to the dissolution court at the time of the initial decree, would have persuaded the court to decree differently. 13. Child Custody. If a permanent, as opposed to temporary, order chang- ing custody is to be made, it should appear to the court that the change of circumstances is more or less permanent or continuous and not merely transitory or temporary. 14. Modification of Decree: Evidence: Appeal and Error. Where the party seeking modification advances multiple reasons for modification, an appellate court does not consider whether each individual factor standing alone constitutes a material change. The appellate court instead considers all the facts and circumstances raised by the evidence to deter- mine whether there has been a material change. 15. Divorce: Final Orders: Actions. A dissolution decree is conclusive in any future action between the parties only as to the facts that were directly in issue and actually or necessarily determined therein. 16. ____: ____: ____. A dissolution decree is not considered conclusive as to questions that might have been, but were not, litigated in the origi- nal action. 17. Appeal and Error. An appellee’s argument that a lower court’s deci- sion should be upheld on grounds specifically rejected below constitutes  - 375 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports WEAVER v. WEAVER Cite as 308 Neb. 373 a request for affirmative relief, and the appellee must cross-appeal in order for that argument to be considered. 18. ____. An appellee may not raise arguments independent of or not responsive to an appellant’s assignments of error without cross-­appealing because they will fall beyond the scope of the case as presented in the appellant’s brief. Petition for further review from the Court of Appeals, Moore, Chief Judge, and Riedmann and Arterburn, Judges, on appeal thereto from the District Court for Douglas County, James T. Gleason, Judge. Judgment of Court of Appeals affirmed. Stephanie Flynn, of Stephanie Flynn Law, P.C., L.L.O., for appellant. Virginia A. Albers, of Slowiaczek Albers, P.C., L.L.O., for appellee. Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ. Freudenberg, J. I. NATURE OF CASE A father appeals the district court’s denial of his motion to modify parenting time after the court concluded that while more parenting time with the father would be in the child’s best interests, the father had failed to demonstrate a material change of circumstances. At issue is the meaning of the pro- vision in the custody agreement incorporated into the decree stating that if a dispute over modification were submitted to a court, such court would apply the “then-governing legal standard.” Also at issue are the factors applicable to deter- mining whether there has been a material change of circum- stances. On further review, albeit for different reasons, we affirm the Nebraska Court of Appeals’ opinion, which reversed the judgment of the district court and remanded the cause with directions.  - 376 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports WEAVER v. WEAVER Cite as 308 Neb. 373 II. BACKGROUND A decree of divorce for John Glen Weaver (Glen) and Meaghann Shaw Weaver was entered by the District of Columbia Superior Court in May 2016. Subsequently, both Glen and Meaghann moved to Omaha, Nebraska. Pursuant to Neb. Rev. Stat. § 42-711 (Reissue 2016), the foreign decree was registered in Nebraska in May 2017. One child was born of the marriage, in July 2015. The decree incorporated a settlement agreement. The settlement agreement provided that Meaghann shall have sole physical custody of the child, with parenting time for Glen, and that Glen and Meaghann were to have shared joint legal custody. 1. Custody Agreement (a) Glen’s Parenting Time The agreement set forth that Meaghann planned on moving with the child to Omaha and that Glen, who is in the U.S. Air Force, was trying to get stationed there. Under the provisions of the agreement governing physical custody, set forth in para- graph 4.1, when Meaghann and the child moved to Omaha in July 2016, and in the event Glen was also able to be stationed in Omaha, then “the parties will work together to implement gradually, and over time, a schedule in which Glen will visit with [the child] every other weekend (Friday — Sunday) and one dinnertime visit every other week.” Additionally, Glen would have parenting time with the child while she was in daycare when Meaghann was working: Glen may visit with [the child] on occasion while [the child] is in work-related daycare, so long as Glen pro- vides reasonable notice of any such visit, such visits do not take place at Meaghann’s home, and such visits are not disruptive to [the child] and do not interfere with any plans or activities associated with [the child’s] daycare or planned by her daycare provider. Under a separate paragraph governing child care expenses, the parties contemplated that until July 31, 2016, the child’s  - 377 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports WEAVER v. WEAVER Cite as 308 Neb. 373 maternal grandmother would be the childcare provider, inas- much as it described payment to the grandmother for these services. Specifically, the agreement stated that for care pro- vided between August 15, 2015, and July 31, 2016, both Glen and Meaghann were to “have gifted $17,500” to her by June 1, 2016. Starting August 1, 2016, “the parties will contribute toward the cost of [the child’s] work-related childcare, with Glen setting the limit of his contribution toward childcare in Nebraska at . . . $200/week.” By its terms, the agreement did not specifically contemplate at what location the daycare for the child would take place or who would provide the daycare after July 31, 2016. In the event the child were “at some point in the future” enrolled in private school “by mutual agreement of the par- ties,” Glen would contribute a minimum of $1,000 annually toward private school tuition. If the parties were unable to reach an agreement about whether the child should enroll in private school, they were directed to follow the protocol set forth in the agreement for “Dispute Resolution Regarding Child Custody.” According to the agreement, at the time it was made, Glen had been visiting the child 1 hour every Monday, Wednesday, and Friday, from 5 to 6 p.m., plus an additional weekend day each week for 1 to 3 hours. There was a provision in the agreement for Glen to be able to see the child 3 to 4 hours per day during an anticipated upcoming 10-day leave. Beyond that, no provision was set forth in the agreement regarding parenting time during holi- days, vacations, or school breaks. Meachann agreed that during the time that both parties lived in the District of Columbia, in addition to accommodating the described schedule for parenting time, she would “consider in good faith requests for incrementally longer visits so long as such visits do not interfere with [the child’s] eating or sleeping schedule.”  - 378 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports WEAVER v. WEAVER Cite as 308 Neb. 373 The implementation of the graduated schedule set forth in the agreement was for the eventuality that both parties moved to Omaha and was to occur over a period of 4 months. (b) Modification Provisions Paragraph 4.2 of the agreement, entitled “Modification of Physical Custody,” described that “either party may request a modification to the physical custody” “[u]pon a material and significant change in circumstance of either party, or in the needs or interests of [the child].” Paragraph 4.2 explained that the parties were to “discuss negotiation of a modification of custody in good faith and attempt to agree upon a resolution that is in the best interests of [the child].” In the event Glenn and Meaghann were “unable to agree,” they were to follow the protocols set forth in the agreement for “Dispute Resolution Regarding Child Custody.” In full, paragraph 4.2 provided: Modification of Physical Custody. Upon a material and significant change in circumstance of either party, or in the needs or interests of [the child], either party may request a modification to the physical custody of [the child]. Upon such a request, the parties will discuss the modification in good faith and attempt to agree upon a resolution that is in the best interests of [the child]. If either party believes the terms of this Agreement related to custody are not in [the child’s] best interest at a future time, the parties may discuss negotiation of a modifica- tion of custody in good faith and attempt to agree upon a resolution that is in the best interests of [the child]. If the parties are unable to agree, they shall follow the proto- cols for Dispute Resolution Regarding Child Custody set forth herein. In turn, paragraph 4.4, entitled “Dispute Resolution Regarding Child Custody,” stated that in the event the parties were unable “to resolve the dispute through several discus- sions on their own, they agree to meet with a mutually agreed  - 379 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports WEAVER v. WEAVER Cite as 308 Neb. 373 upon mediator or facilitator, or they will meet with an expert in the field of the dispute (physician, teacher, etc.) to gain more information and advice.” But if they were unable to reach an agreement by these means, either party could petition a court for relief, with the court to apply the “then-governing legal standard to such a request for modification of custody”: In the event the parties are unable to reach an agreement through this dispute resolution process, including agree- ments related to modifications in the physical custody schedule as provided in Paragraph 4.1 and 4.2 supra, either party may petition a court of competent jurisdiction for relief, provided however that any court of competent jurisdiction shall apply the then-governing legal standard to such a request for modification of custody. (c) Construction Provisions The decree did not set forth any other future contingen- cies relevant to physical custody. In paragraph 14.15, entitled “Construction of this Agreement,” it was agreed that because both parties and their counsel participated in drafting the agreement, no provision shall be interpreted for or against a party merely because the party or that party’s legal representa- tive drafted the provision. On appeal, Glen asserts that he was not represented by counsel in forming the custody agreement. And the decree sets forth on the signature page that Glen rep- resented himself pro se. The signature page demonstrates that Meaghann, in contrast, was represented by counsel. 2. Complaint to Modify In December 2017, Glen filed a complaint to modify the decree by awarding the parties joint physical custody of the child. A prior complaint to modify filed in February 2017 had been dismissed for lack of prosecution in November 2017. Glen asserted in the complaint that since the time of the decree, there had been material changes in circumstances warranting modification. As relevant here, Glen specifically  - 380 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports WEAVER v. WEAVER Cite as 308 Neb. 373 alleged as material changes in circumstances the move to Omaha, the parties’ incomes, and Meaghann’s failure to abide by the decree’s provisions relating to parenting time while the child was in daycare or to abide by provisions of joint legal custody relating to involving Glen in educational, medical, and religious decisions. Further, the complaint alleged that both parties’ work schedules had changed, including a significant change to Glen’s “prior deployment schedule” as a current active duty service member. Meaghann denied the allegations of material changes in circumstances. She alleged that they were all known and taken into consideration at the time of the decree. Meaghann alleged that she had fully complied with the provisions of the decree and that any failure to comply with the parenting plan was solely based on Glen’s actions. The court ordered settlement negotiations or mediation, which were unsuccessful, and a modification hearing was held. 3. Modification Hearing Glen’s attorney argued at the hearing that there was a mate- rial change of circumstances and that it was against public policy for the custody arrangement set forth in the decree to remain in effect. Meaghann’s attorney asserted that nothing had changed that was not contemplated by the parties when they entered into the custody agreement. (a) Glen’s Testimony Glen testified that he received orders on June 9, 2016, to be stationed in Omaha. The orders were entered into evidence as an exhibit. Glen currently works 8 a.m. to 4:30 p.m., Monday through Friday. At the time of the hearing on the motion to modify, Glen was 4 months from retirement eligibility and did not believe he would be restationed. He has also been under deployment limitations for the past year, since March 2018, due to a malignant melanoma diagnosis. He is currently in remission. Glen was uncertain whether he would choose to  - 381 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports WEAVER v. WEAVER Cite as 308 Neb. 373 retire, explaining that he “love[d] serving the Air Force” and would continue to do so if allowed to stay in Omaha, but stat- ing that “[i]f they ask me to move, I will retire.” Glen testified that the scope of his responsibilities in his current position in the Air Force as a colonel supporting a base wing commander is “a lot different” from the position he held before, support- ing a four-star general who was the chairman of the Joint Chiefs of Staff at the Pentagon. He described that “the level of responsibility and time required and flexibility of schedule [are] greatly different.” Since moving to Omaha, Glen has exercised visitation every other Friday from 4:30 p.m. until Sunday at 4 p.m., as well as every other Wednesday from 4:30 to 6:30 p.m. Except for the time outlined in a court order during the pendency of his complaint to modify, Glen had not been allowed any parenting time for a holiday, including Father’s Day, unless it happened to correspond with his scheduled parenting time every other weekend and dinnertime every other Wednesday. Glen admitted that Meaghann has not denied him his scheduled parenting time every other weekend or every other Wednesday, but testified that she had denied him parenting time while the child was in daycare. Glen elaborated that despite his requests, during the past year, Meaghann had allowed him to visit the child only once while she was in daycare. That visit took place at the preschool. Glen testified that he has not been consulted by Meaghann in determining what daycare the child would attend. He was concerned with Meaghann’s unilateral decisionmaking on mat- ters over which they had joint legal custody. In fact, other than learning where the child went to preschool, he did not know how the child was cared for while Meaghann was at work. Glen testified that when he inquired, Meaghann told him only that the child is “in a safe place.” Glen testified that he did not contemplate at the time of the agreement that he would be spending so little time with his child. Meaghann had refused many requests for voluntary  - 382 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports WEAVER v. WEAVER Cite as 308 Neb. 373 extensions of parenting time, and Glen noted that a maximum of 2 days in a week did not allow time for him to take the child to see out-of-town relatives and that he considered it generally insufficient time in which to be the kind of father he wished to be. (b) Meaghann’s Testimony Meaghann testified that during the workweek, Meaghann’s mother provides daycare for the child at Meaghann’s home. Two mornings a week, the child is cared for outside the home at a preschool program. The child also has weekly activities such as music, children’s Bible study, and Spanish lessons. Meaghann’s mother provides transportation to and from pre- school and activities. Meaghann testified that she had kept Glen abreast of where the child was attending preschool and the details of the pre- school curriculum. She also described that she had attempted to engage in discussions with Glen about where the child should attend preschool. She did not address whether she had discussed with Glen or informed Glen of the child’s in-home daycare arrangements. Meaghann testified that she had never done anything to prevent Glen from visiting the child while at preschool. Again, she did not address whether she had rejected Glen’s requests to see the child while being cared for by her mother in Meaghann’s home. Meaghann testified that she had offered to allow Glen to have a meal with the child over various Christmas holidays, but that he did so only once. Meaghann testified more gen- erally with respect to holidays that she had “no objection to [the child’s] seeing [Glen] so long as it’s conducive to her development and to her schedule.” Meaghann admitted she had rejected Glen’s requests to spend as holiday visitation “an extended duration of days out of state.” Meaghann pointed out that there had been weekend visitations that Glen had chosen to forfeit. She was unsure on what grounds, but believed they  - 383 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports WEAVER v. WEAVER Cite as 308 Neb. 373 were due to “personal vacations.” Meaghann explained that she has on occasion offered Glen makeup parenting times. Meaghann susggested, in the event the court considered changing parenting time, adding alternating Tuesdays over- night to the alternating Wednesdays at dinnertime, as well as adding holidays and vacation time. Meaghann explained that mediation was unsuccessful in part because she considered Glen’s requests to, for example, have parenting time so that he could spend 7 to 10 days out of the country vacationing with their child to be “extreme” in terms of “many components, international components, duration.” 4. Order Finding More Visitation Would Be in Child’s Best Interests but No Change of Circumstances Warranting Modification Following the trial, in August 2019, the court denied the relief sought in the complaint for modification, taxing to each party his or her own costs and fees. The court found that it would be in the best interests of the child to have more visi- tation time with Glen. Nevertheless, the court found that no material change in circumstances had occurred and that “all of the matters complained of . . . as a basis for the claim of material change in circumstance were within the contempla- tion of the parties as shown in the separation and property settlement agreement which is incorporated into the Decree of Dissolution.” The court did not elaborate as to what specific facts formed the basis for this conclusion. Glen filed a motion to alter or amend, asserting he had proved a material change in circumstances. The court denied the motion and Glen appealed. 5. Appeal to Court of Appeals Glen’s appeal was initially taken up by the Court of Appeals. In his appellate brief, Glen argues that the trial court had mistakenly found that under the divorce decree, he was required to prove a material change in circumstances  - 384 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports WEAVER v. WEAVER Cite as 308 Neb. 373 in order to obtain a court order changing parenting time. Alternatively, Glen argues that he had demonstrated a material change in circumstances. Finally, Glen proposes that because modification under Neb. Rev. Stat. § 42-364 (6) (Reissue 2016) is governed by the Parenting Act 1 and the Parenting Act focuses on the best interests of the child and states that the “relationship between the child and each parent should be equally considered,” 2 courts, acting in equity, should not rigidly adhere to the rule, set forth only in case law, that a substantial and material change in circumstances must always be shown before modifying custody. The Court of Appeals held that under the plain language of paragraph 4.2 of the agreement incorporated into the decree, the parties had agreed that modification of physical custody was permissible without a material change in circumstances, so long as the modification was in the best interests of the child. The Court of Appeals reasoned that these terms, incorporated into the foreign decree, had to be given full faith and credit under the Full Faith and Credit Clause of U.S. Const. art. IV, § 1; 28 U.S.C. § 1738A (2012); and the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). 3 Furthermore, the Court of Appeals cited to its opinion in Walters v. Walters 4 for the proposition that we will generally enforce valid stipu- lations in dissolution decrees, including an agreement that physical custody may be modified without showing a material change in circumstances, as long as the modification comports with a child’s best interests. Because the Court of Appeals found that the parties had stipulated to allow modification in the absence of a material 1 Neb. Rev. Stat. §§ 43-2920 to 43-2943 (Reissue 2016 & Cum. Supp. 2018). 2 § 43-2921. 3 Neb. Rev. Stat. §§ 43-1226 to 43-1266 (Reissue 2016 & Cum. Supp. 2018). 4 Walters v. Walters, 12 Neb. App. 340 , 673 N.W.2d 585 (2004).  - 385 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports WEAVER v. WEAVER Cite as 308 Neb. 373 change in circumstances, the Court of Appeals did not decide whether a court in equity may grant a motion to modify a cus- tody decree without a material change in circumstances when the parties’ agreement incorporated into the decree is silent on the question. And because the Court of Appeals found that the district court had abused its discretion by requiring that Glen prove a material change in circumstances, it did not determine whether the district court erred in its determination that there had been no material change in circumstances. Because the district court found it would be in the child’s best interests to have more time with Glen, the Court of Appeals reversed the order denying modification and remanded the cause with directions for the district court to consider the relief sought in accordance with the best interests of the child. We granted Meaghann’s petition for further review. III. ASSIGNMENTS OF ERROR Meaghann assigns in her petition for further review that the Court of Appeals erred by (1) finding that the parties’ separa- tion and property settlement agreement contained a stipulation allowing that a modification of custody or visitation could be sought solely on the best interests of the minor child without a change in circumstances; (2) finding that Glen was not required to prove a material change in circumstances before granting a modification of custody or visitation, ignoring Nebraska prec- edent holding that stipulations are not binding upon courts; (3) failing to consider the totality of the testimony adduced at trial; and (4) awarding Glen attorney fees on appeal. In his appeal from the district court’s order denying modi- fication, Glen assigns that (1) the trial court erred in deter- mining he was required to plead and prove a substantial and material change in circumstances, (2) the trial court erred in determining he failed to prove a substantial and material change in circumstances not within the contemplation of the parties at the time the original judgment had taken place, (3) the trial court erred in failing to determine that child custody  - 386 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports WEAVER v. WEAVER Cite as 308 Neb. 373 modifications should be determined on the basis of the best interests of minor children and should have found that the original judgment violated the Parenting Act, and (4) admin- istrative dismissal of the first complaint to modify was not a decision on the merits. IV. STANDARD OF REVIEW [1] The meaning of a divorce decree presents a question of law in connection with which we reach a conclusion indepen- dent of the determination reached by the court below. 5 [2,3] In an appeal of an equity action, this court tries the factual questions de novo on the record and reaches a con- clusion independent of the findings of the trial court. 6 In a review de novo on the record, an appellate court reappraises the evidence as presented by the record and reaches its own independent conclusions with respect to the matters at issue. 7 When evidence is in conflict, the appellate court considers and may give weight to the fact that the trial judge heard and observed the witnesses and accepted one version of the facts rather than another. 8 [4] Child custody determinations are matters initially entrusted to the discretion of the trial court, and although reviewed de novo on the record, the trial court’s determination will normally be affirmed absent an abuse of discretion. 9 V. ANALYSIS Section 43-1260 provides that a court of this state shall accord full faith and credit to an order issued by another state and consistent with the UCCJEA which enforces a child 5 Bayne v. Bayne, 302 Neb. 858 , 925 N.W.2d 687 (2019). 6 Hall v. Hall, 238 Neb. 686 , 472 N.W.2d 217 (1991). 7 Rauch v. Rauch, 256 Neb. 257 , 590 N.W.2d 170 (1999). 8 Id. 9 State on behalf of Jakai C. v. Tiffany M., 292 Neb. 68 , 871 N.W.2d 230 (2015).  - 387 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports WEAVER v. WEAVER Cite as 308 Neb. 373 custody determination by a court of another state. Section 43-1240 provides for jurisdiction to modify a child cus- tody determination made by a court of another state. Section 42-364(6) sets forth that modification proceedings relating to custody, parenting time, and visitation shall be commenced by filing a complaint to modify; sets forth that modification of a parenting plan is governed by the Parenting Act; and describes an initial process of dispute resolution. The Parenting Act sets forth that in determining custody and parenting arrangements, the court shall consider the best interests of the minor child. 10 [5,6] No statute specifically addresses any threshold inquiry limiting when a court may consider whether the best interests of the minor child warrant modification of a dissolution decree in order to effect a change in custody, parenting time, or visi- tation. We have explained that a decree of divorce, insofar as minor children are concerned, is never final in the sense that it cannot be changed, but is subject to review at any time in the light of changing conditions. 11 The right of parenting time is subject to continual review by the court, and a party may seek modification of a parenting time order on the grounds that there has been a material change in circumstances. 12 [7] We have repeatedly held that prior to the modification of a child custody order, two steps of proof must be taken by the party seeking the modification. 13 First, the party seeking modification must show by a preponderance of the evidence a material change in circumstances that has occurred after the entry of the previous custody order and that affects the best 10 § 43-2923. 11 See, Matson v. Matson, 175 Neb. 60 , 120 N.W.2d 364 (1963); Grange v. Grange, 15 Neb. App. 297 , 725 N.W.2d 853 (2006). 12 Smith-Helstrom v. Yonker, 253 Neb. 189 , 569 N.W.2d 243 (1997); Olander v. McPhillips, 28 Neb. App. 559 , 947 N.W.2d 578 (2020). 13 Eric H. v. Ashley H., 302 Neb. 786 , 925 N.W.2d 81 (2019).  - 388 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports WEAVER v. WEAVER Cite as 308 Neb. 373 interests of the child. 14 Second, the party seeking modification must prove that changing the child’s custody is in the child’s best interests. 15 [8] We have explained that proof of a change of circum- stances is not an optional element to a modification proceed- ing. 16 Proof of a material change of circumstances is the thresh- old inquiry in a proceeding on a complaint to modify, because issues determined in the prior custody order are deemed preclu- sive in the absence of proof of new facts and circumstances. 17 Furthermore, limiting custody changes to material changes in circumstances avoids extensive and repetitive litigation and unnecessary, potentially harmful fluctuations in the child’s life. 18 A custody order will not be modified absent proof of new facts and circumstances arising since it was entered. 19 This is the governing legal standard for a request for modi- fication of custody in Nebraska. The foreign decree governing custody and parenting time for the child provides that in the event Glen and Meaghann are unable to reach an agreement through the dispute resolution process set forth in the decree, including agreement related to modifications in the physical custody schedule, “either party may petition a court of com- petent jurisdiction for relief, provided however that any court of competent jurisdiction shall apply the then-governing legal standard to such a request for modification of custody.” [9] A decree is a judgment, and once a decree for disso- lution becomes final, its meaning, including the settlement agreement incorporated therein, is determined as a matter of law from the four corners of the decree itself. 20 It is ­inherent 14 Id. 15 See id. 16 Id. 17 See id. 18 Id. 19 Id. 20 Bayne v. Bayne, supra note 5 .  - 389 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports WEAVER v. WEAVER Cite as 308 Neb. 373 to a judgment’s finality that all are bound by the original language used, and all ought to interpret the language the same way. 21 [10] Even when our determination involves “interpretation” of the judgment or decree, its meaning is determined, as a mat- ter of law, by its contents. 22 Unlike disputes over the meaning of an ambiguous contract, the parties’ subjective interpretations and intentions are wholly irrelevant to a court’s declaration, as a matter of law, as to the meaning of an ambiguous decree. 23 The meaning of a decree must be determined from all parts thereof, read in its entirety, and must be construed as a whole so as to give effect to every word and part, if possible, and bring all of its parts into harmony as far as this can be done by fair and reasonable interpretation. 24 Effect must be given to every part thereof, including such effect and consequences that follow the necessary legal implication of its terms, although not expressed. 25 While the agreement that was incorporated into the decree provided in paragraph 4.2 that “[u]pon a material and signifi- cant change in circumstance of either party, or in the needs or interests of [the child], either party may request a modifica- tion to the physical custody of [the child],” under its plain language, this provision governs only Glen’s and Meaghann’s obligations to engage in dispute resolution, including media- tion, in order to attempt in good faith to reach an agreement on modifying their custody arrangement. (Emphasis supplied.) It did not purport to set forth the legal standard under which a court of law could adjudicate a complaint to modify. Rather, under paragraph 4.4, if such dispute resolution procedures fail to result in an agreement, modification is a 21 Id. 22 Id. 23 Id. 24 Id. 25 Id.  - 390 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports WEAVER v. WEAVER Cite as 308 Neb. 373 matter for the courts. In that eventuality, the agreement simply states that “any court of competent jurisdiction shall apply the then-governing legal standard to such a request for modifica- tion of custody.” The agreement incorporated into the decree did not set forth that the threshold inquiry for modification by the court in such circumstances was a “significant change in circumstance . . . or in the needs or interests of [the child],” and it did not describe that only the terms of the agree- ment incorporated into the decree constitute the “governing legal standard.” Construing the decree as a whole, giving effect to every word and part, the “then-governing legal standard” that the decree refers to does not purport, as the Court of Appeals concluded, to expand a court’s ability to modify custody by eliminating the threshold requirement of a material change in circumstances. The provision referring to a significant change in circumstances or the needs or interests of the child is merely the standard governing when either party “may request a modification to the physical custody of [the child],” which “the parties will discuss” and will mediate in event such discussion is unfruitful. We disagree with the Court of Appeals that these provi- sions setting forth the threshold standard for discussion and mediation should be construed under the decree as the “then- governing legal standard” a court must follow when the parties “petition a court . . . for relief” after other dispute resolution procedures have failed to result in an agreement. The Court of Appeals erred in concluding that the district court was bound by the terms of the decree to allow modification absent a mate- rial change in circumstances, so long as the modification was in the child’s best interests. We thus find merit to Meaghann’s first assignment of error in her petition for further review. And we thus find no merit to Glen’s assignment that the trial court erred in determining he was required to plead and prove a substantial and material change in circumstances. He was required to do so.  - 391 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports WEAVER v. WEAVER Cite as 308 Neb. 373 That said, we find merit to Glen’s assignment on appeal that the district court erred in finding no material change in circum- stances, and therefore, we agree with the Court of Appeals’ ultimate mandate that the matter be remanded with directions for the district court to consider how to modify the custody provisions of the decree. In our de novo review, we find that Meaghann’s unwillingness to permit Glen’s parenting time while the child is in daycare and changes in Glen’s employ- ment together constitute a material change in circumstances since the entry of the decree. [11,12] Material change in circumstances eludes precise and concise definition. 26 Generally speaking, a material change in circumstances is the occurrence of something which, had it been known to the dissolution court at the time of the initial decree, would have persuaded the court to decree differently. 27 [13,14] If a permanent, as opposed to temporary, order changing custody is to be made, it should appear to the court that the change of circumstances is more or less permanent or continuous and not merely transitory or temporary. 28 Where the party seeking modification advances multiple reasons for modification, we do not consider whether each individual fac- tor standing alone constitutes a material change; we instead consider all the facts and circumstances raised by the evidence to determine whether there has been a material change. 29 Several facts and circumstances raised in the complaint to modify have arisen since the decree that were neither actually nor necessarily adjudicated therein. Considering these facts and circumstances together, there has been a material change. 26 Hall v. Hall, supra note 6 . 27 Jones v. Jones, 305 Neb. 615 , 941 N.W.2d 501 (2020); Eric H. v. Ashley H., supra note 13. 28 See Hoschar v. Hoschar, 220 Neb. 913 , 374 N.W.2d 64 (1985), disapproved on other grounds, Parker v. Parker, 234 Neb. 167 , 449 N.W.2d 553 (1989). 29 See Grange v. Grange, supra note 11 .  - 392 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports WEAVER v. WEAVER Cite as 308 Neb. 373 First, we find relevant the evidence presented in this case concerning Glen’s inability to visit the child while she is in daycare with her maternal grandmother in Meaghann’s home. Glen testified that Meaghann had kept him from visit- ing the child while the child was in daycare outside of pre- school; he was simply told the child was “in a safe place.” Meaghann’s testimony did not specifically refute Glen’s testi- mony in this regard. One parent’s denial of the other parent’s rights to parenting time may constitute a material change in circumstances. 30 The decree set forth that Glen was able to visit the child on occasion while she was in daycare, so long as, among other things, the visits did not take place in Meaghann’s home. While the decree did not allow Glen to exercise daycare visits at Meaghann’s home, the decree did not specifically contemplate that the child would be in daycare at Meaghann’s home after July 31, 2016. Further, Glen testified that the decision as to who was to provide daycare and where it was to take place was made by Meaghann without discussing it with him. Moreover, the decree’s provision for Glen’s visitation “while [the child] is in work-related daycare” does not necessarily exclude the visitation’s occurring outside of the daycare facilities. According to Glen’s testimony, Meaghann unilaterally determined that the child would be in preschool—the only place where she had permitted Glen daycare visitation—only two mornings per week at a time Glen was at work. While Meaghann described some discussions with Glen regarding a different preschool, the evidence does not suggest that Glen agreed that the child should be in out-of-home care only two mornings per week. We recognize that the decree set forth that Glen’s daycare visits were to occur “occasion[ally],” but they were never- theless a significant source of potential parenting time given 30 See Hibbard v. Hibbard, 230 Neb. 364 , 431 N.W.2d 637 (1988). See, also, e.g., Annot., 102 A.L.R.6th 153 (2015); 40 Causes of Action 2d 241, § 4 (2009).  - 393 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports WEAVER v. WEAVER Cite as 308 Neb. 373 the limited visitation schedule of every other weekend and every other Wednesday at dinnertime and the absence of any provision for holidays or vacations. We thus find that the cur- rent obstacles to visitation with the child while in daycare dur- ing Meaghann’s work hours is a circumstance occurring after the decree that, had it been known to the dissolution court at the time of the initial decree, would have persuaded the court to allocate Glen’s parenting time differently. Second, Glen, due to both his health restrictions result- ing from a malignant melanoma diagnosis and his upcoming retirement eligibility, is not subject to the same deployments he was subject to at the time of the decree. Glen also indicated that his new work responsibilities allow him more flexibility than he had previously. From the testimony presented, it does not appear that at the time of the decree, Glen knew what precisely his job would entail in Omaha if he were able to be transferred there; and, regardless, future changes in job stabil- ity and flexibility were not contemplated in the decree. The increased stability and availability surrounding Glen’s new position are relevant and can be considered in conjunction with the other relevant facts already discussed. A significant change in a ­party’s work schedule is a pertinent factor in determining whether there has been a material change of circumstances that would support a change in parenting time. 31 In an appeal of an equity action, this court tries the factual questions de novo on the record and reaches a conclusion independent of the findings of the trial court. 32 In a review de novo on the record, an appellate court reappraises the evidence as presented by the record and reaches its own independent conclusions with respect to the matters at issue. 33 When evi- dence is in conflict, the appellate court considers and may give weight to the fact that the trial judge heard and observed the 31 See Grange v. Grange, supra note 11 . 32 Goes v. Vogler, 304 Neb. 848 , 937 N.W.2d 190 (2020). 33 Rauch v. Rauch, supra note 7 .  - 394 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports WEAVER v. WEAVER Cite as 308 Neb. 373 witnesses and accepted one version of the facts rather than another. 34 Child custody determinations are matters initially entrusted to the discretion of the trial court, and although reviewed de novo on the record, the trial court’s determination will normally be affirmed absent an abuse of discretion. 35 In our de novo review, we find there was a material change in circumstances. Glen has demonstrated that he has a more predictable schedule and increased availability since the par- ties entered into the parenting time agreement. Yet, at the same time, Glen has been unable to fully exercise even the limited parenting time expressly contemplated in the decree. The facts of this case are similar to those presented in Grange v. Grange, 36 wherein the Court of Appeals held that the district court erred by failing to find the mother’s change in her work schedule due to the completion of her medical residency, the young child’s request to spend more time with the mother, and the father’s refusal to voluntarily accede to the mother’s request for more parenting time were, when consid- ered together, sufficient to satisfy the mother’s burden of dem- onstrating a material change in circumstances. Here, the district court did not make specific findings regard- ing the alleged facts relevant to whether there was a change in circumstances. If findings are not made, this court can make little application of our general rule that in our de novo review, we consider, and may give weight to, the fact that the trial court saw and heard the witnesses. 37 But, to the extent there was a conflict in the evidence, it does not appear that the dis- trict court found Meaghann more credible than Glen. [15,16] Rather, it appears that the court mistakenly found the changes in facts and circumstances alleged in Glen’s motion to modify were foreseen by the parties at the time of the 34 Id. 35 State on behalf of Jakai C. v. Tiffany M., supra note 9 . 36 See Grange v. Grange, supra note 11 . 37 See Parker v. Parker, supra note 28 .  - 395 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports WEAVER v. WEAVER Cite as 308 Neb. 373 original decree and therefore were necessarily included in the decree. A dissolution decree is conclusive in any future action between the parties only as to the facts that were directly in issue and actually or necessarily determined therein. 38 A dis- solution decree is not considered conclusive as to questions that might have been, but were not, litigated in the original action. 39 The facts and circumstances discussed above were not necessarily included in the decree. To the extent the court determined otherwise, it abused its discretion. [17,18] The district court found that it was in the child’s best interests to have more parenting time with Glen. Meaghann did not cross-appeal the district court’s specific finding that a change in parenting time would be in the child’s best interests. An appellee’s argument that a lower court’s decision should be upheld on grounds specifically rejected below constitutes a request for affirmative relief, and the appellee must cross- appeal in order for that argument to be considered. 40 An appel- lee may not raise arguments independent of or not responsive to an appellant’s assignments of error without cross-appealing because they will fall beyond the scope of the case as presented in the appellant’s brief. 41 Thus, albeit for different reasons, we agree with the Court of Appeals that under our applicable standard of review, the district court abused its discretion, and that the cause should be remanded for the court to reconsider the relief sought by Glen in accordance with the best interests of the child. 38 See, Buhrmann v. Buhrmann, 231 Neb. 831 , 438 N.W.2d 481 (1989); 27A C.J.S. Divorce § 443 (2016). See, also, DeVaux v. DeVaux, 245 Neb. 611 , 514 N.W.2d 640 (1994) (superseded by statute on other grounds as stated in Tyler F. v. Sara P., 306 Neb. 397 , 945 N.W.2d 502 (2020)); Fichtl v. Fichtl, 28 Neb. App. 380 , 944 N.W.2d 516 (2020). 39 Buhrmann v. Buhrmann, supra note 38 ; 27A C.J.S., supra note 38. 40 Wasikowski v. Nebraska Quality Jobs Bd., 264 Neb. 403 , 648 N.W.2d 756 (2002). 41 Workman v. Workman, 262 Neb. 373 , 632 N.W.2d 286 (2001).  - 396 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports WEAVER v. WEAVER Cite as 308 Neb. 373 Having found in Glen’s favor on appeal, we find no merit to Meaghann’s assignment in her brief in support of further review that the Court of Appeals erred in granting him attor- ney fees. We need not address Glen’s remaining assignment asserting that the trial court erred in failing to determine child custody modifications should be determined on the basis of the best interests of minor children and that it should have found the original judgment violated the Parenting Act. Glen’s assertion in his assignments of error section that administrative dismissal of the first complaint to modify was not a decision on the merits preventing him from filing the complaint to modify here at issue is not, in fact, an assignment of error. Having determined that the decree did not purport to impose a different material change of circumstances standard upon our courts, we do not address Meaghann’s assignment of error that a stipulation changing the threshold inquiry for modification would not be binding. Finally, having reviewed the record in this case de novo and, further, observing that the Court of Appeals did not deter- mine the question of whether there was a material change of circumstances, we find immaterial Meaghann’s assignment of error that the Court of Appeals failed to consider the total- ity of the evidence presented at the hearing on the complaint to modify. VI. CONCLUSION We affirm on different grounds the Court of Appeals’ deci- sion reversing the judgment of the district court and remanding the cause with directions. Affirmed.

2021-03-19 05:09:04.001365+00

https://www.nebraska.gov/apps-courts-epub/public/viewOpinion?docId=N00007613PUB

Nebraska Supreme Court Online Library www.nebraska.gov/apps-courts-epub/ 03/19/2021 12:09 AM CDT - 405 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports IN RE TRUST CREATED BY McGREGOR Cite as 308 Neb. 405 In re Trust Created by Clifford Allen McGregor, deceased. Allen E. McGregor, appellant, v. Evelyn L. McGregor, appellee. ___ N.W.2d ___ Filed February 12, 2021. No. S-20-281. 1. Trusts: Equity: Appeal and Error. Trust administration matters are reviewed for error appearing on the record, absent an equity question. 2. Judgments: Appeal and Error. When reviewing a judgment for errors appearing on the record, the inquiry is whether the decision conforms to the law, is supported by competent evidence, and is neither arbitrary, capricious, nor unreasonable. 3. Wills: Trusts. The interpretation of the words in a will or a trust pre­ sents a question of law. 4. Judgments: Appeal and Error. In instances when an appellate court is required to review cases for error appearing on the record, questions of law are nonetheless reviewed de novo on the record. 5. Trusts. A nonjudicial settlement agreement is valid only to the extent it does not violate a material purpose of the trust. 6. Trusts: Presumptions. A spendthrift provision in the terms of the trust is presumed to constitute a material purpose of the trust. 7. Trusts: Words and Phrases. “Spendthrift provision” means a term of a trust which restrains both voluntary and involuntary transfer of a benefi- ciary’s interest. 8. Trusts. The material purposes of a trust are subject to the settlor’s discretion, to the extent that its purposes are lawful, are not contrary to public policy, are possible to achieve, and are for the benefit of its beneficiaries. 9. Appeal and Error. An appellate court is not obligated to engage in an analysis that is not necessary to adjudicate the case and controversy before it.  - 406 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports IN RE TRUST CREATED BY McGREGOR Cite as 308 Neb. 405 Appeal from the County Court for Hayes County: Anne M. Paine, Judge. Affirmed. Galen E. Stehlik, of Stehlik Law Firm, P.C., L.L.O., for appellant. Larry R. Baumann and Christine E. Seck, of Kelley, Scritsmier & Byrne, P.C., L.L.O., for appellee. Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ. Funke, J. Allen E. McGregor, a beneficiary of a trust created by his father, Clifford Allen McGregor, now deceased, petitioned the county court for Hayes County, Nebraska, for approval of a nonjudicial settlement agreement. After a trial, the court declined to approve the agreement. Allen appeals. We hold the nonjudicial settlement agreement violates a material pur- pose of the trust. Therefore, we affirm the decision of the county court. BACKGROUND Clifford died on October 15, 2009. Evelyn L. McGregor is Clifford’s surviving spouse. Prior to Clifford’s death, Clifford and Evelyn created separate trusts and equally divided their real estate into their respective trusts. Clifford’s trust was titled the “C.A. McGregor Trust.” The trust states that it “shall be administered and disposed of in accordance with the provi- sions of [the] trust instrument.” Clifford reserved the right to revoke or amend all or any part of the trust during his lifetime. Clifford and Evelyn were cotrustees. When Clifford died, the trust became irrevocable and Evelyn became the sole trustee. After providing for the payment of funeral expenses and the disposition of certain itemized per- sonal property, the trust created an irrevocable trust, known as the C.A. McGregor Family Trust (Family Trust), which held the remaining assets of the trust estate. Evelyn retained all  - 407 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports IN RE TRUST CREATED BY McGREGOR Cite as 308 Neb. 405 net income generated from the real estate owned by the Family Trust and paid all real estate expenses, such as real estate taxes and income taxes. The Family Trust creates separate “carve-out” trusts for Clifford and Evelyn’s two children, Allen and Debra L. Schardt (Debra). Upon Evelyn’s death, the rest and residue of the Family Trust is to be equally distributed to the separate carve- out trusts, which are named the “Allen Eugene McGregor Family Trust” and the “Debra Louise Schardt Family Trust.” The Family Trust states that it is Clifford’s intent, to the extent possible, to treat the children equally. If the Family Trust contains sufficient funds, the value of the distributions to the separate carve-out trusts will be equalized. However, if there are insufficient funds, the distributions will not be equalized. Allen and Debra are to become the trustee of his or her respective trust. The trust instrument states that the assets of the carve-out trusts “shall remain in trust” and that the trusts “shall be irrevocable and shall not be revoked or amended in whole or in part by the trustee, beneficiary or any other person.” In the event of the death, resignation, or inability of a trustee of a carve-out trust, the Family Trust contains provisions to select a successor trustee, which could include a survivor of Allen and Debra, or a designated corporation or bank. Until the death of Allen or Debra, the trustee of his or her respective trust shall from time to time, in his or her discretion, pay for the health, education, support, or maintenance of his or her children or grandchildren. In distributing trust income, the trustee must give first priority to Allen or Debra and second- ary priority to Allen’s or Debra’s respective children. The trust instrument states that it is Clifford’s intent that each carve-out trust be construed as “a non-support discretionary spendthrift trust that may not be reached by the beneficiaries[’] creditors for any reason.” Upon the death of Allen or Debra, pursuant to a limited power of appointment, the trustee of the deceased’s carve-out trust may transfer the remainder of the separate trust for the benefit of a person, corporation, or other entity, but  - 408 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports IN RE TRUST CREATED BY McGREGOR Cite as 308 Neb. 405 it shall not be exercised in favor of Allen or Debra, his or her estate, or creditors of his or her estate. In May 2011, Evelyn, Allen, and Debra entered into a trust settlement agreement, which, upon Evelyn’s death, provides for the distribution of the Family Trust’s assets directly to Allen and Debra, free of trust. Per the agreement, Allen would receive an additional tract of real estate not distributed under the Family Trust. Further, the agreement requires an equaliza- tion payment between Allen and Debra. In May 2017, Evelyn emailed Allen, purporting to revoke the agreement. On July 25, 2018, pursuant to Neb. Rev. Stat. § 30-3811 (Reissue 2016), Allen filed this action in the county court for Hayes County seeking approval of the agreement and an order requiring compliance with the terms of the agreement. Evelyn filed an answer requesting that the court find the agreement to be nonbinding and alleging that the agreement violates a material purpose of the trust; did not include all potential beneficiaries, such as the issue of Allen or Debra; and lacked consideration. Allen moved for summary judgment in June 2019. Following a hearing, the court issued a written order overruling Allen’s motion. The court found that according to the terms of the Family Trust, upon the death of Evelyn, four specific tracts of real estate would be transferred to Allen in trust and one specific tract of real estate would be transferred to Debra in trust. Debra would also receive, in trust, a Ford Model T. The remaining trust estate at the time of Evelyn’s death was to be equally distributed to the two carve-out trusts. However, equal- ization would depend on the availability of liquid assets. The court further found that the trust settlement agreement modi- fied the Family Trust “in several ways.” The matter then proceeded to a bench trial. After trial, the court issued an order rejecting the agreement and finding that the agreement was nonbinding under § 30-3811. The court first analyzed the issue of “interested persons.” Section 30-3811(a) states that “‘interested persons’ means  - 409 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports IN RE TRUST CREATED BY McGREGOR Cite as 308 Neb. 405 persons whose consent would be required in order to achieve a binding settlement were the settlement to be approved by the court.” The court found that § 30-3811 required that all inter- ested persons consent to the agreement, but noted that there are no published Nebraska cases addressing the issue of “inter- ested persons” in the context of nonjudicial settlement agree- ments. As an aside, the court noted that the Nebraska Court of Appeals considered the issue of indispensable parties in a case involving parties seeking to modify a trust. 1 Regarding the case at hand, the court found that upon the death of Allen or Debra, the assets of the carve-out trusts would be distributed pursuant to a limited power of appoint- ment or, in the event of a default, the assets would be dis- tributed to the issue of Allen or Debra per stirpes. The court further found that although yet unknown and undetermined, the beneficiaries of the carve-out trusts are a specific class of beneficiaries whose rights are affected by the agreement, and that thus the beneficiaries qualify as “interested persons.” Because the unknown and undetermined beneficiaries had not consented to the agreement, the court determined that Allen failed to establish under § 30-3811 an enforceable nonjudicial settlement agreement. The court then analyzed the requirements of § 30-3811(c), while assuming that all interested persons had consented to the agreement. Section 30-3811(c) states in part that “[a] nonjudi- cial settlement agreement is valid only to the extent it does not violate a material purpose of the trust . . . .” The court found that the agreement violates a material purpose of the Family Trust, because the agreement sought to change specific terms of the irrevocable trust in at least three respects. First, Allen would receive an additional tract of land which he would not receive under the Family Trust. Second, upon Evelyn’s death, Allen and Debra would receive the assets of the carve-out 1 See In re Trust Created by Augustin, 27 Neb. App. 593 , 935 N.W.2d 493 (2019).  - 410 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports IN RE TRUST CREATED BY McGREGOR Cite as 308 Neb. 405 trusts outright rather than in trust. Third, Allen and Debra would be required to equalize their distributions, either through an allocation of debt or cash settlement. The court found that none of these issues came within the categories of matters which may be resolved through nonjudicial settlement agree- ments under § 30-3811(d). The court found the changes made by the agreement were substantial and constituted a violation of a material purpose of the trust, which was to leave the real estate in trust for the benefit of Allen and Debra during their lives and then pass on to their issue upon their deaths. Allen filed an appeal. We moved the case to our docket on our own motion. ASSIGNMENTS OF ERROR Allen assigns, restated, that the court erred in (1) finding a lack of consent by all interested persons and (2) finding that the agreement altered a material purpose of the trust. STANDARD OF REVIEW [1,2] Trust administration matters are reviewed for error appearing on the record, absent an equity question. 2 When reviewing a judgment for errors appearing on the record, the inquiry is whether the decision conforms to the law, is sup- ported by competent evidence, and is neither arbitrary, capri- cious, nor unreasonable. 3 [3,4] The interpretation of the words in a will or a trust presents a question of law. 4 In instances when an appellate court is required to review cases for error appearing on the record, questions of law are nonetheless reviewed de novo on the record. 5 2 See, In re Henry B. Wilson, Jr., Revocable Trust, 300 Neb. 455 , 915 N.W.2d 50 (2018); In re Trust of Shire, 299 Neb. 25 , 907 N.W.2d 263 (2018); In re Estate of Radford, 297 Neb. 748 , 901 N.W.2d 261 (2017). 3 In re Trust Created by Isvik, 274 Neb. 525 , 741 N.W.2d 638 (2007); In re Trust Created by Inman, 269 Neb. 376 , 693 N.W.2d 514 (2005). 4 In re Estate of Barger, 303 Neb. 817 , 931 N.W.2d 660 (2019). 5 In re Trust Created by Nabity, 289 Neb. 164 , 854 N.W.2d 551 (2014).  - 411 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports IN RE TRUST CREATED BY McGREGOR Cite as 308 Neb. 405 ANALYSIS Material Purpose of Trust We begin our analysis by considering Allen’s second assign- ment of error, because its resolution is dispositive of his appeal. Allen argues that the county court erred in finding that the trust settlement agreement violates a material purpose of the Family Trust. Allen contends that Evelyn wanted to modify the trust in order to carry out Clifford’s intentions. Allen relies upon a recital in the agreement in which “Evelyn asserts the provisions for distribution of the trust estate in the [C.A. McGregor Trust] do not represent the intentions of [Clifford].” Specifically, Allen contends that modifying the terms of the trust to require equalization of the distributions to the carve-out trusts rather than making equalization dependent on the avail- ability of liquid assets better serves Clifford’s intent to treat his children equally. Although disputes involving the administration of trusts are encouraged to be resolved through nonjudicial means, 6 § 30-3811 of the Nebraska Uniform Trust Code, see Neb. Rev. Stat. §§ 30-3801 to 30-38,110 (Reissue 2016, Cum. Supp. 2018 & Supp. 2019), authorizes the court to determine the validity of a nonjudicial settlement agreement according to the provisions of the code or other applicable laws. [5-8] In declining to approve the agreement, the court relied upon § 30-3811(c), which provides: “A nonjudicial ­settlement agreement is valid only to the extent it does not violate a material purpose of the trust . . . . A spendthrift provision in the terms of the trust is presumed to constitute a material pur- pose of the trust.” “Spendthrift provision” means “a term of 6 See Unif. Trust Code § 111, comment, 7D U.L.A. 101 (2018). See, also, In re Trust Created by Fenske, 303 Neb. 430 , 930 N.W.2d 43 (2019) (comments to Uniform Trust Code provide guidance as to Nebraska Uniform Trust Code), citing In re Trust of Shire, supra note 2 ; In re Trust Created by Isvik, supra note 3 ; John M. Gradwohl & William H. Lyons, Constitutional and Other Issues in the Application of the Nebraska Uniform Trust Code to Preexisting Trusts, 82 Neb. L. Rev. 312 (2003).  - 412 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports IN RE TRUST CREATED BY McGREGOR Cite as 308 Neb. 405 a trust which restrains both voluntary and involuntary transfer of a beneficiary’s interest.” 7 “‘[T]he very nature or design of a trust suggests its protective nature or some other material purpose.’” 8 The material purposes of a trust are subject to the settlor’s discretion, to the extent that its purposes are lawful, are not contrary to public policy, are possible to achieve, and are for the benefit of its beneficiaries. 9 The Restatement (Second) of Trusts § 337(2) (1959) adopts the “material purpose” rule, which states: “If the continuance of the trust is necessary to carry out a material purpose of the trust, the beneficiaries cannot compel its termination.” 10 In In re Estate of Somers, 11 the Kansas Supreme Court considered the issue of whether a court can terminate a spendthrift trust at the request of the beneficiaries, if the settlor is not avail- able to consent to the termination. The court relied upon the Restatement (Second) of Trusts § 337, comment l., which pro- scribes the termination of spendthrift trusts, stating: “If by the terms of the trust . . . the interest of one or more of the benefi- ciaries is made inalienable . . . , the trust will not be terminated while such inalienable interest still exists, although all of the beneficiaries desire to terminate it . . . .” The court held that because the beneficiaries offered no evidence to rebut the pre- sumption that the spendthrift provision was a material purpose of the trust, termination of the trust would frustrate a material purpose of the trust. 12 7 § 30-3803(17). 8 See In re Trust Created by Fenske, supra note 6 , 303 Neb. at 439, 930 N.W.2d at 49, quoting Restatement (Third) of Trusts § 65, comment d. (2003). 9 See § 30-3830. 10 See Gradwohl & Lyons, supra note 6. 11 In re Estate of Somers, 277 Kan. 761 , 89 P.3d 898 (2004). 12 Id. See, also, Neeley v. Neeley, 26 Kan. App. 2d 924 , 996 P.2d 346 (2000); Germann v. New York Life Ins. Co., 286 S.C. 34 , 331 S.E.2d 385 (S.C. App. 1985).  - 413 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports IN RE TRUST CREATED BY McGREGOR Cite as 308 Neb. 405 Here, we find that the trust instrument contains spend- thrift provisions. During his life, Clifford reserved the right to revoke or amend all or any part of the trust. Upon his death, Clifford’s trust became irrevocable and created the irrevocable Family Trust. The trust instrument specifically states that it “shall be administered and disposed of in accordance with the provisions of [the] trust instrument.” The Family Trust states that the estate assets provided for in the carve-out trusts “shall remain in trust” and that the carve-out trusts “shall be irrev­ ocable and shall not be revoked or amended in whole or in part by the trustee, beneficiary or any other person.” Clifford specifically stated in his trust that his intent was to have each carve-out trust be construed as “a non-support discretionary spendthrift trust that may not be reached by the beneficiaries[’] creditors for any reason.” The record thus makes clear that the overriding intent and design of the Family Trust is to hold the beneficiaries’ interests in trust and restrain the transfer of such interests. The trust settlement agreement violates this funda- mental and material purpose of the trust, because the agree- ment distributes estate assets to the beneficiaries outright rather than in trust. This provision of the agreement would allow the assets to “be reached by the beneficiaries[’] creditors” and would allow Allen and Debra to transfer the assets during their lifetimes, which directly conflicts with the limited power of appointment provided by the carve-out trusts. We find no evidence offered by Allen to rebut the presump- tion that the spendthrift provisions constitute a material pur- pose of the trust. Allen argues that the court should give weight to the fact Evelyn supported the agreement and asserts that Clifford’s trust and Evelyn’s trust were intended to be joint and reciprocal. However, this assertion is defeated by a detailed provision in Clifford’s trust which sets forth his intention to have his trust operate independently of Evelyn’s trust. We conclude that the spendthrift provisions of the Family Trust establish a material purpose of the trust, which the set- tlement agreement violates by transferring the trust assets to  - 414 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports IN RE TRUST CREATED BY McGREGOR Cite as 308 Neb. 405 Allen and Debra outright rather than in trust. Because the agreement violates a material purpose of the trust, under the requirements of § 30-3811(c), the agreement is invalid. The probate court did not err in declining to approve the agreement. Interested Persons [9] Because the probate court correctly determined that the settlement agreement violates a material purpose of the Family Trust, we need not consider Allen’s assignment of error that the court erred in finding that an unknown and undetermined class of beneficiaries was required to consent to the trust settlement agreement. An appellate court is not obligated to engage in an analysis that is not necessary to adjudicate the case and contro- versy before it. 13 For completeness, we note that the concept of “interested persons” under § 30-3811 is legally distinct from “indispen­ sable parties” in the context of Neb. Rev. Stat. § 25-323 (Reissue 2016). 14 The county court referred to indispensable parties only in passing while remarking on the lack of Nebraska precedent on the subject of “interested persons.” The court did not dismiss Allen’s petition based on a lack of jurisdiction due to the absence of an indispensable party in the case. Debra appeared with counsel at trial and did not appeal. CONCLUSION For the foregoing reason, we affirm the order of the county court which denied Allen’s request for approval of a nonjudi- cial settlement agreement. Affirmed. 13 Benjamin M. v. Jeri S., 307 Neb. 733 , 950 N.W.2d 381 (2020). 14 See In re Trust Created by Augustin, supra note 1, citing Midwest Renewable Energy v. American Engr. Testing, 296 Neb. 73 , 894 N.W.2d 221 (2017).

2020-11-21 03:11:17.466915+00

ESTATE OF LEE R. FARRELL, DECEASED, MRS. LEE R. FARRELL, EXECUTRIX, DISCHARGED JANUARY 30, 1931, PETITIONER, v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT. Farrell v. Commissioner Docket No. 77345. United States Board of Tax Appeals 35 B.T.A. 265; 1937 BTA LEXIS 901; January 15, 1937, Promulgated *901 1. Bona fide discharge of an executrix of an estate without prior notice of claim for deficiency does not bar Commissioner's assertion of an income tax deficiency against the estate. Elnora C. Haag,19 B.T.A. 982">19 B.T.A. 982. 2. The filing of a personal return by the surviving widow in which she included her own income and that of her deceased husband jointly did not set in motion the running of the statute of limitations and therefore did not preclude the Commissioner from asserting a deficiency under a return filed by him for the widow as executrix of decedent's estate more than two years after her return. 3. Petitioner having submitted no evidence on the merits to over come the prima facie correctness of Commissioner's determination of values, respondent's determination is approved. W. R. Lansford, Esq., for the respondent. ARNOLD *266 OPINION. ARNOLD: This proceeding arises on respondent's determination of a deficiency in income tax of Lee R. Farrell, deceased, for the period January 1 to November 18, 1929, in the amount of $1,454.97. The facts are drawn from exhibits put in evidence by respondent and are as follows: Petitioner*902 was executrix of the estate of her husband, who died November 18, 1929, until her discharge by the probate court on January 30, 1931. She filed a personal income tax return for 1929, which sought to include the income of decedent with her own under a joint return. On July 15, 1931, the revenue agent at Cleveland, Ohio, reported that the decedent's income had been eliminated from Mrs. Lee R. Farrell's return, under authority of section 25(e) of the Revenue Act of 1928 and Treasury Regulations 74, article 746; and stated that in accordance with the regulations "a separate delinquent return [without penalty] has been prepared to show the income of the decedent, and a report thereon is being submitted under even date hereof." In this report the decedent's income was increased by $27,000 in respect of a distribution to decedent by the Portage Silica Co. said to be taxable as a dividend. Petitioner's counsel, Klooz, was informed of this action. The respondent on July 24, 1931, under form letter 850, addressed to petitioner as "executrix", enclosed a copy of the revenue agent's report on decedent's tax and the unsigned delinquent return prepared for her as executrix. In an undated*903 letter to the revenue agent petitioner, signing herself as "executrix" of the decedent's estate, acknowledged receipt of this report and requested that the estate's case "be held in abeyance pending the outcome" in the courts of the Portage Silica Co.'s case, which involved the March 1, 1913, value of the company's sand deposits. Petitioner's letter makes no reference to the delinquent return, and it does not appear that it was ever signed by her and filed with the revenue agent or the Commissioner. These papers were forwarded by the revenue agent to the Commissioner on August 25, 1931. Nothing further occurred until February 12, 1932, when respondent wrote petitioner as executrix, informing her that the adjustments in tax recommended in the revenue agent's report would be made and that the statute would run by March 14, 1932, but that her waiver would extend the period. Petitioner, signing herself as "executrix" in an undated letter which was, however, received by the respondent on February 17, 1932, enclosed a waiver and gave as her *267 reason for so doing the case still pending on the tax liability of the Portage Silica Co., already referred to. The waiver was executed*904 on February 16, 1932, by petitioner as executrix and extended the period to December 31, 1932. Accompanying this waiver was petitioner's statement, under oath, executed before a notary public on the same day, that she was "the duly qualified and acting executrix" and that she then possessed "the powers * * * resulting from such fiduciary relationship." Respondent informed petitioner on February 20, 1932, that for her consent to be acceptable she must furnish letters testamentary or other evidence of her authority to act as executrix. A "certificate of appointment" of the Probate Court of Mahoning County, Ohio, executed by its judge on March 15, 1930, and certifying that petitioner had been appointed executrix of the decedent on December 10, 1929, and was at the time of the certificate's execution the legal and acting executrix, was received by respondent on February 26, 1932. The receipt of this certificate was acknowledged by respondent on March 4, 1932, and in the same letter petitioner was informed that her consent had been accepted. On November 10, 1932, one Oscar I. Koke, accountant, of Cleveland, purporting to act for the petitioner, wrote to respondent, requesting a*905 further extension of time to December 31, 1933, and the necessary agreement forms. Respondent on November 18, 1932, wrote directly to petitioner, referring to Koke's letter, and to the absence of any evidence of a power of attorney given to him, and sending the consent forms. It was further pointed out by respondent that petitioner must submit documentary evidence of her authority to act as executrix "as of the date of the execution of the consent." Petitioner, as executrix, on November 29, 1932, duly executed before a notary public a consent extending the period to June 30, 1934, which was sent to respondent. On December 3, 1932, respondent acknowledged this consent but informed petitioner that she must execute the consent on form 56-M. No consent around this date was put in evidence, but it would appear to have been received, for on December 27, 1932, the respondent informed the petitioner that he had accepted "the consent." No further evidence of petitioner's status as a fiduciary as of this date appears to have been submitted. On May 9, 1934, Koke & Co., referring to a letter of April 24, 1934, from respondent, informed him that a power of attorney could not be obtained*906 from executrix since she had been discharged by the court as such, and inquiring whether a power of attorney executed in her personal capacity would suffice. Thereupon, on June 5, 1934, acting under authority of section 3176 of the Revised Statutes, as amended, respondent prepared and filed a delinquent return for "Lee R. Farrell, deceased Mrs. Lee R. *268 Farrell, Executrix", for the period January 1 to November 18, 1929. On June 20, 1934, respondent sent to petitioner as executrix a notice of deficiency in the amount of $1,454.97, allowing appeal to this Board in 90 days. From this notice of deficiency petitioner brought this appeal on September 17, 1934. In these circumstances, petitioner has pleaded to the jurisdiction of this Board, first, on the ground that the decedent's tax liability may not be asserted against his estate after the bona fide discharge of his executrix without prior notice of the claim; and, second, that the statute of limitations has run against the assessment and collection of the deficiency. On the merits, petitioner contends that the distribution by the Portage Silica Co. to decedent in 1929 was out of the March 1, 1913, value of its property*907 and not taxable as a dividend. Petitioner made no appearance, filed no brief, and offered no evidence. Respondent contends that the petitioner is estopped to deny the Board's jurisdiction, and, while moving for judgment on the merits for petitioner's failure to prosecute, suggests that that issue is res judicata under prior decisions of this Board. Portage Silica Co.,11 B.T.A. 700">11 B.T.A. 700; affd., 49 Fed.(2d) 985; 284 U.S. 667">284 U.S. 667; certiorari denied, 29 B.T.A. 881">29 B.T.A. 881 (appealed to C.C.A., 6th Cir., July 5, 1934). Petitioner's first contention is answered in our decision in Elnora C. Haag,19 B.T.A. 982">19 B.T.A. 982, where we said: The discharge of an executrix does not bar collection of taxes on income received by a decedent in his lifetime, provided assessment is made within the statutory period. Elna S. Evans, Administratrix,12 B.T.A. 334">12 B.T.A. 334; Karl J. Kaufmann, Administrator,15 B.T.A. 141">15 B.T.A. 141. See also Joseph Simon, Executor,9 B.T.A. 84">9 B.T.A. 84. It is not important that the petitioner had no notice or knowledge of any taxes due from the decedent. *908 Elna S. Evans, supra. In affirming, the Circuit Court of Appeals for the Seventh Circuit said (59 Fed.(2d) 516, 518): The notice of the deficiency tax, which the Commissioner mailed February 19, 1927, was addressed to the executrix of the estate of Louis E. Haag. Inasmuch as there was no such executrix in existence at this date and inasmuch as there was no deficiency tax assessed against Elnora C. Haag, individually, the recipient of the estate upon its being fully administered, it is argued that there was no valid deficiency tax assessed. Associated with this contention is the fact that petitioner sought relief from the Board of Tax Appeals through a petition signed by her as "former executrix of the estate of Louis E. Haag, deceased." Thereafter, petitioner sought to avoid the consequences of such petition and adjudication of her petition by asserting that she, as the former executrix of the estate, could not take an appeal from the assessment of a tax against the executrix of the estate. Complete answer to this position is to be found in the decisions of this court and of other courts. [Citing authorities.] These cases hold that although the*909 notice was not directed to the proper party, nevertheless if it appeared that the proper party had received the notice or that the party who succeeded to the title of the party filing the return had received the notice, it was sufficient. *269 We turn now to the question whether the deficiency notice was timely, Respondent contends that it was, on the ground, first, that petitioner is estopped to deny the effectiveness of the waivers which she executed, by reason of her holding herself out to the respondent as having the capacity to execute them as executrix, and, second, that since petitioner never filed a return as executrix of the decedent, the respondent might file such a return on her behalf as executrix under authority of section 3176 of the Revised Statutes, as amended, and, having done so, the statute would run two years from the date of this return, or until June 5, 1936, and consequently that respondent's deficiency notice of June 20, 1934, was timely. As the second contention, if sound, will dispose of the case without necessity of our considering at length the facts and legal effect of the several waivers executed by petitioner, we shall proceed now to consideration*910 of the second point. The statute provides that income taxes shall be assessed (or a proceeding in court begun) within two years after the return is filed (sec. 275(a), Revenue Act of 1928), 1 but if income is "received during the lifetime of a decedent, or by his estate during the period of administration", the tax shall be assessed "within one year after written request therefor * * * by the executor, administrator, or other fiduciary representing the estate of such decedent * * *." (Sec. 275(b).) In respect of the fiduciary of a taxpayer the statute provides (sec. 312(a)): * * * Upon notice to the Commissioner that any person is acting in a fiduciary capacity such fiduciary shall assume the powers, rights, duties, and privileges of the taxpayer in respect of a tax imposed by this title (except as otherwise specifically provided and except that the tax shall be collected from the estate of the taxpayer), until notice is given that the fiduciary capacity has terminated. *911 No question is here involved of a request by the petitioner as executrix to have the assessment made. On the contrary, petitioner, holding herself out to be still lawfully acting as executrix, requested, about July 1931, postponement of further action by respondent pending the adjudication of the Portage Silica case, and as executrix executed waivers on February 16, 1932, and November 29, 1932, which would, if valid, have extended the period to June 30, 1934, under section 506 of the statute. Section 276(a) and (b) of the Revenue Act 1928 provides as follows: (a) False return or no return. - In the case of a false or fraudulent return with intent to evade tax or of a failure to file a return the tax may be assessed, or a proceeding in court for the collection of such tax may be begun without assessment, at any time. *270 (b) Waivers. - Where before the expiration of the time prescribed in section 275 for the assessment of the tax, both the Commissioner and the taxpayer have consented in writing to its assessment after such time, the tax may be assessed at any time prior to the expiration of the period agreed upon. The period so agreed upon may be extended*912 by subsequent agreements in writing made before the expiration of the period previously agreed upon. Section 3176 of the Revised Statutes, as amended (sec. 1103, Revenue Act of 1926), provides as follows: SEC. 3176. If any person, corporation, company, or association fails to make and file a return or list at the time prescribed by law or by regulation made under authority of law, or makes, wilfully or otherwise, a false or fraudulent return or list, the collector or deputy collector shall make the return or list from his own knowledge and from such information as he can obtain through testimony or otherwise. In any such case the Commissioner of Internal Revenue may, from his own knowledge and from such information as he can obtain through testimony or otherwise, make a return or amend any return made by a collector or deputy collector. Any return or list so made and subscribed by the Commissioner, or by a collector or deputy collector and approved by the Commissioner, shall be prima facie good and sufficient for all legal purposes. * * * The Commissioner of Internal Revenue shall determine and assess all taxes, other than stamp taxes, as to which returns or lists are*913 so made under the provisions of this section. Respondent had prepared and sent to petitioner on July 24, 1931, a delinquent return covering the income of the decedent for that period of 1929 properly returnable by petitioner as executrix. It does not appear, however, that petitioner ever signed and filed this return. Respondent's counsel catagorically states that the only return filed for the estate for the year 1929 was that filed by the Commissioner in 1934, and in the circumstances we must accept this as conclusive. Respondent, acting under the authority of section 3176 of the Revised Statutes, filed a return for the decedent's estate on June 5, 1934. On June 20, 1934, he sent to petitioner, as executrix of decedent's estate, a deficiency notice based on this return. From this deficiency notice petitioner brings the instant appeal. That the deficiency notice was timely can not be doubted, for under section 276(a) the statute of limitations does not begin to run until a return has been filed. The Commissioner's return filed on behalf of the petitioner constituted the only return made and the deficiency notice followed promptly upon the return so made by the respondent. *914 Petitioner as executrix never filed a return of decedent's income for 1929, and the joint return originally filed by her covering her own and decedent's income for that year can not be construed as a return by her in her fiduciary capacity. This point has been settled adversely to petitioner. The Court of Appeals for the Third Circuit held, in Bliss v. Commissioner, 76 Fed.(2d) 101, that a wife whose *271 husband died prior to the end of the taxable year was precluded from filing a joint income tax return with her deceased husband, saying (p. 102): * * * Thus the petitioner is left to the statute alone for a right to file a joint return. We find nothing in the statute that gives her such a right. On the contrary, it is clear from section 225 (Revenue Act of 1924) that the duty of filing a return of income of a deceased spouse, in this case the husband, devolves upon his personal representative, leaving the inescapable inference that no such duty devolves upon the surviving spouse and no such right is accorded her. To the same effect is *915 Gertrude H. Thompson,30 B.T.A. 30">30 B.T.A. 30. We are of the opinion that no bar exists to the collection from the estate of the asserted tax. On the question raised on the merits, in so far as the merits may be grasped from the brief references in the petition, from the correspondence between petitioner and respondent, and from respondent's counsel's statements at bar, it appears to depend upon the March 1, 1913, value of certain mineral deposits, which was considered by us in the Portage Silica Co., cases, supra, and resolved adversely to the taxpayer's contention. In any event, since petitioner has not prosecuted her appeal on its merits, we must consider ourselves bound by respondent's determination. Respondent's determination is prima facie correct, and petitioner's failure to rebut it in any way by testimony or other evidence leaves it undisturbed. Judgment will be entered for the respondent. Footnotes

2021-03-19 05:09:05.26154+00

https://www.nebraska.gov/apps-courts-epub/public/viewOpinion?docId=N00007614PUB

Nebraska Supreme Court Online Library www.nebraska.gov/apps-courts-epub/ 03/19/2021 12:09 AM CDT - 415 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports IN RE INTEREST OF PRINCE R. Cite as 308 Neb. 415 In re Interest of Prince R., a child under 18 years of age. State of Nebraska, appellee, v. Mohamed K., appellant, and Abak R., appellee and cross-appellant. ___ N.W.2d ___ Filed February 12, 2021. No. S-20-342. 1. Juvenile Courts: Evidence: Appeal and Error. Juvenile cases are reviewed de novo on the record, and an appellate court is required to reach a conclusion independent of the juvenile court’s findings; how- ever, when the evidence is in conflict, an appellate court may consider and give weight to the fact that the trial court observed the witnesses and accepted one version of the facts over the other. 2. Parental Rights. The purpose of the adjudication phase is to protect the interests of the child. 3. Juvenile Courts: Jurisdiction. To obtain jurisdiction over a juvenile at the adjudication stage, the court’s only concern is whether the conditions in which the juvenile presently finds himself or herself fit within the asserted subsection of Neb. Rev. Stat. § 43-247 (Reissue 2016). 4. Juvenile Courts: Jurisdiction: Proof. At the adjudication stage, in order for a juvenile court to assume jurisdiction of minor children under Neb. Rev. Stat. § 43-247 (3)(a) (Reissue 2016), the State must prove the allegations of the petition by a preponderance of the evidence. Appeal from the Separate Juvenile Court of Lancaster County: Linda S. Porter, Judge. Affirmed. Robert Wm. Chapin, Jr., of Chapin Law Office, for appellant. Patrick F. Condon, Lancaster County Attorney, and Maureen E. Lamski for appellee State of Nebraska.  - 416 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports IN RE INTEREST OF PRINCE R. Cite as 308 Neb. 415 Mona L. Burton, of Anderson, Creager & Wittstruck, P.C., L.L.O., for appellee Abak R. Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ. Papik, J. The separate juvenile court of Lancaster County adjudicated Prince R. as a child who lacked proper parental care by reason of the fault or habits of his parents, Mohamed K. and Abak R. The juvenile court concluded that the parents failed to ensure that Prince received necessary medical care after he was diag- nosed with a rare form of cancer. Mohamed appealed and Abak cross-appealed this determination, but, for reasons we will explain, we affirm. BACKGROUND Adjudication Petition and Preliminary Motions. The State commenced this action on October 21, 2019. In its adjudication petition, the State alleged that Prince, who was born in August 2015, lacked proper parental care by reason of the fault or habits of both Mohamed and Abak. The State asserted that Prince had been diagnosed with alveolar rhab- domyosarcoma of the right forearm with local metastases to the axillary lymph nodes; that the condition was curable with regular chemotherapy and radiation; that without treatment, the condition would be fatal; that Mohamed and Abak, having been informed of Prince’s diagnosis and prognosis, intention- ally kept him from receiving treatment; and that the actions of Mohamed and Abak placed Prince at a risk of harm. On the same day the State filed its petition, it filed an ex parte motion for immediate custody of Prince. The juve- nile court granted the State’s motion. The court later granted motions by the State for Prince to remain in the temporary legal and physical custody of the Nebraska Department of Health and Human Services (DHHS).  - 417 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports IN RE INTEREST OF PRINCE R. Cite as 308 Neb. 415 Adjudication Hearing. The juvenile court held a trial on the State’s adjudication petition over the course of 4 days in January and February 2020. A summary of the evidence presented follows. Melissa Acquazzino, a board-certified physician who spe- cializes in treating children with cancer at Children’s Hospital and Medical Center (Children’s) in Omaha, Nebraska, first saw Prince when he came to Children’s in July 2019 with a tumor on his right forearm. Following a biopsy, Acquazzino and others on a pediatric pathology team diagnosed Prince with alveolar rhabdomyosarcoma, a form of cancer. It was later determined that the cancer had spread to the lymph nodes of Prince’s armpit. Acquazzino testified that there are only about 350 patients diagnosed with this form of cancer in the United States per year. Acquazzino informed Mohamed and Abak of Prince’s diag- nosis. She also informed Mohamed and Abak that Prince would need to receive chemotherapy. Acquazzino recalled that Mohamed and Abak were “distraught.” She testified that Mohamed expressed anger at the length of time it took to make the diagnosis as well as a belief that if Prince had received antibiotics earlier, cancer would not have developed. After additional testing on the tumor tissue, Prince was determined to have what Acquazzino referred to as “inter- mediate risk” rhabdomyosarcoma. Acquazzino testified that this meant that Prince had about a 60-percent chance of relapse-free, long-term survival if the best available treatment were provided. According to Acquazzino, the best available treatment in Prince’s case would include an initial round of chem­otherapy followed by either surgery or radiation and then continued chemotherapy for a total treatment duration of about 66 weeks. She testified that an international consortium of children’s hospitals to which Children’s belonged recognized this course of treatment as the best available and that any other hospital within that consortium would have recommended the same treatment. If Prince did not receive this treatment,  - 418 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports IN RE INTEREST OF PRINCE R. Cite as 308 Neb. 415 Acquazzino said that he would die in 6 months to a year. Acquazzino testified that when patients have a very poor prog- nosis even if the standard treatment is provided, Children’s will offer the option of palliative “comfort care,” which is expected to end in the patient’s death. Acquazzino testified that was not an option explored in this case given Prince’s prognosis. On July 23, 2019, Acquazzino and Christina Chesters, a social worker at Children’s, met with Mohamed and Abak regarding Prince’s prognosis and next steps. Acquazzino testi- fied that she outlined the recommended treatment and informed Mohamed and Abak that most patients with Prince’s condition will respond to the treatment and achieve long-term survival. Acquazzino also testified that she told Mohamed and Abak that the treatment could involve side effects, which could be managed with medication. Mohamed and Abak also received various printed materials explaining the treatment and possible side effects. According to Acquazzino, Mohamed and Abak expressed concern at the July 23, 2019, meeting, about the need for chemotherapy. Acquazzino perceived Mohamed and Abak as resistant to the recommended treatment. After Acquazzino told them that this was the best available treatment and that, without treatment, Prince would die, Mohamed and Abak agreed to proceed. Prince began the recommended treatment that night. Acquazzino testified that Prince’s treatment went well ini- tially. His tumor visibly shrank, his side effects were minimal, and he made it to all his appointments. Chesters worked with Mohamed to identify and eliminate any barriers to regular attendance at treatment. As part of that effort, she made finan- cial resources available to pay for car repairs and other bills Mohamed and Abak reported having trouble paying. After several weeks of treatment, Prince began to experience expected side effects such as nausea, vomiting, and fatigue. Then, in September 2019, Prince started missing some of his scheduled chemotherapy appointments. Chesters testified  - 419 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports IN RE INTEREST OF PRINCE R. Cite as 308 Neb. 415 that she contacted Mohamed after Prince missed one appoint- ment and that Mohamed told her he believed the doctors were giving Prince too much medicine too quickly. According to Chesters, she emphasized to Mohamed that it was very important Prince receive the treatments as scheduled and that the appointments were not optional. The missed appointments were concerning to Acquazzino, because they could lead to the cancer building resistance to the treatment regimen. The treatment plan called for Prince to begin radiation treatments while continuing chemotherapy in early October 2019. Concerned about the prior missed chemotherapy appoint- ments and whether Mohamed and Abak would bring Prince to the radiation appointments, Acquazzino asked to meet with Mohamed and Abak on October 1, 2019. Both Mohamed and Abak attended the October 1, 2019, meet- ing with Acquazzino and Chesters. The meeting lasted about an hour. Acquazzino recalled that, at the meeting, Mohamed and Abak said Prince was being given too much medicine and that Mohamed said the cancer would not kill Prince, but the chemotherapy would. Mohamed and Abak asked that Prince be given less medicine. Acquazzino explained to them that reducing the medication would expose Prince to the same side effects, but would not be as effective at treating the cancer. She also told them that skipping scheduled treatments could lead to the cancer building resistance and becoming more difficult to treat. Acquazzino testified that during the meeting on October 1, 2019, Mohamed and Abak said that they wanted to get a sec- ond opinion. While Acquazzino and Chesters offered to help facilitate a second opinion by making a referral or sending records to another provider, they also emphasized that the sit­ uation was time sensitive, so any second opinion would need to be obtained quickly. Acquazzino testified that while any delay in treatment was not ideal, she would have “tolerated maybe a one to two week delay” to get a second opinion because the benefits of improving the relationship with Mohamed and  - 420 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports IN RE INTEREST OF PRINCE R. Cite as 308 Neb. 415 Abak would counter the risk of delaying treatment. According to Acquazzino, Mohamed and Abak did not ask for a referral and said they had to think and talk about whether they were interested in one. Acquazzino testified that for much of the meeting on October 1, 2019, Mohamed and Abak expressed opposition to beginning radiation treatment. By the end of the meeting, however, Mohamed and Abak committed to bringing Prince to his radiation appointment the next day. After the meeting, Acquazzino and Chesters decided to make a Child Protective Services referral. Acquazzino felt that a referral was appropri- ate because, based on the discussion at the meeting, she was concerned that Mohamed and Abak would not ensure that Prince continued to receive treatment. Prince did attend his radiation appointment on October 2, 2019. After that, however, neither parent brought Prince to any further radiation or chemotherapy appointments. On October 2, 2019, Vildana Parmer, a caseworker at DHHS, was assigned to investigate the concerns expressed in the Child Protective Services referral. Parmer had access to several possible addresses in Lincoln, Nebraska, for Mohamed and Abak and initially tried to make contact with them at those locations. These efforts were unsuccessful, but Parmer did reach Mohamed by telephone on October 4. She testified that she asked Mohamed where Prince and Abak were and that Mohamed told her they were at one of the addresses she already visited. After Parmer informed Mohamed that she had recently visited that address and no one was there, Mohamed told her that Abak and Prince were residing at the People’s City Mission (PCM). Parmer then visited PCM and asked an employee there to provide her business card to Abak. Deanna Borg, an employee of PCM, testified that PCM records showed that Abak and Prince began residing at PCM on August 1, 2019. Borg testified that in early October, some- one from DHHS asked her to provide Abak with the DHHS employee’s business card. Borg provided Abak with the  - 421 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports IN RE INTEREST OF PRINCE R. Cite as 308 Neb. 415 card and told her that the DHHS employee said that it was important that Abak contact her. After providing the business card, Borg did not see Abak and Prince again. Borg testified that those people staying at PCM are required to sign a paper on their door if they intend to spend that night there. Abak last signed the paper on her door on October 1. Parmer later found Mohamed outside his residence in Lincoln. She testified that she asked Mohamed where Prince was and that Mohamed initially said that Abak and Prince went to Utah, but later stated they were in Arizona. He said that they went there to seek a second opinion for Prince’s medical treatment. Parmer testified that she asked Mohamed to have Abak call her, but Abak never did. Parmer also testified she emphasized to Mohamed that it was important Prince receive his medical treatment and that if he did not receive it, he would likely die. According to Parmer, Mohamed expressed disagree- ment with that statement. Patrick Wingfield, an officer with the Lincoln Police Department, attempted to locate Abak, beginning on October 8, 2019. Wingfield found Mohamed outside his residence in Lincoln and requested that Mohamed ask Abak to contact him. Mohamed told Wingfield that Abak had taken Prince to Arizona to get a second opinion for his medical treatment. Wingfield testified that Mohamed told him that this was none of his concern and that Prince was safe. Luis Herrera, an investigator with the Lincoln Police Department, began attempting to locate Abak and Prince on October 9, 2019. Herrera first attempted to contact Abak via text message and by contacting other police departments. On October 12, he reached Mohamed by telephone. Mohamed told Herrera that Abak and Prince were in Arizona to get a second opinion for Prince’s medical treatment. Herrera testified that Mohamed told him, based on his research, Prince was being given too much medication and that Mohamed said, if he dis- agreed with the medication being given, “he would step in and correct the doctor.”  - 422 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports IN RE INTEREST OF PRINCE R. Cite as 308 Neb. 415 After other attempts to locate Abak and Prince were unsuc- cessful, Herrera initiated an emergency “ping” on a cell phone number belonging to Abak on October 18, 2019. The ping indicated that the cell phone was in Murfreesboro, Tennessee. Herrera then called Mohamed again. Mohamed indicated he had been in contact with Abak. Herrera asked that Mohamed facilitate contact between Herrera and Abak. Herrera testified that during this conversation, Mohamed complained about the treatment Prince was receiving through Children’s and stated that Children’s had a “clandestine agenda.” A few hours after his conversation with Mohamed, Herrera spoke to Abak on the telephone. During the call, Herrera asked Abak whether Prince was receiving medical treatment, but Abak said she did not want to discuss that. When Herrera asked whether Abak and Prince were still in Nebraska, Abak said she was not and would not be coming back. She also said that “if I even get another doctor, it’s not going to be in Nebraska.” Herrera acquired a warrant to obtain an ongoing ping on Abak’s cell phone. Those pings indicated that the cell phone was at an apartment complex in Murfreesboro. After Herrera provided law enforcement in Tennessee with information regarding the case, Tennessee law enforcement found Abak at the apartment complex on October 26, 2019. Herrera worked with child welfare services in Tennessee to ensure that Prince was taken to a hospital as soon as he was found. No evidence was presented that Prince received any treat- ment or was seen by any medical professionals between October 2 and 26, 2019. No evidence was presented that Mohamed or Abak had arranged for another medical professional to provide a second opinion. Chesters testified that although she compiled Prince’s medical records in response to Mohamed’s request in an October 8 email, she also told Mohamed that he would need to pick up a disc containing the records and that he failed to do so. Prince, in the temporary custody of DHHS, resumed treatment through Children’s once he returned to Nebraska.  - 423 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports IN RE INTEREST OF PRINCE R. Cite as 308 Neb. 415 Although Acquazzino could not say with certainty to what extent the delay in treatment affected Prince’s prognosis, she testified that, in general, delays increase the risk of relapse and decrease the overall efficacy of the treatment. Acquazzino also testified that because chemotherapy can cause blood counts to drop severely, Prince was placed at risk by not having blood tests run on a weekly basis. In addition, she testified that because Prince was receiving chemotherapy and had a central line inserted in his body, Prince was at risk for infection. Mohamed testified at trial. He agreed that after beginning chemotherapy, Prince’s tumor noticeably shrank. He testified that when Prince began experiencing side effects, it was dif- ficult to get him to take the oral medications that would help manage them. He testified that he asked the doctors if Prince could take the medications used to manage side effects in some other way. At one point in his testimony, Mohamed said that he only wanted a second opinion regarding Prince’s wrist, which had limited functionality after the biopsy, and that he never wanted a second opinion about the treatment protocol. Later in his testimony, however, he testified that he also wanted to get a second opinion for Prince’s cancer diagnosis. Mohamed testified that he and Abak were not and had never been married. He testified that while Prince resided with Abak at the time of the events at issue, Prince had lived with him at earlier points in his life. Mohamed testified that it was Abak’s decision to leave Nebraska. He testified that he did not ask Abak to return because he believed she was seeking a sec- ond opinion. Mohamed disagreed with Chesters’ testimony that he did not obtain the medical records, claiming that she emailed the records to him. He conceded that he never gave the records to another medical provider. Mohamed denied ever telling anyone that the treatment would kill Prince, but the cancer would not. He also denied ever saying that he intentionally did not bring Prince to treatments because he believed Prince was receiving too much medicine  - 424 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports IN RE INTEREST OF PRINCE R. Cite as 308 Neb. 415 through chemotherapy. He acknowledged that Acquazzino had informed him that it was harmful to Prince to miss scheduled treatments, and he testified that he believed that was true. He testified that he wanted Prince to receive all of the treatment recommended by Children’s. Abak did not testify at trial. Juvenile Court’s Adjudication Order. The juvenile court found that Prince lacked proper parental care by reason of the fault or habits of both Mohamed and Abak. In reaching this conclusion, the juvenile court empha- sized various points. It observed that there was no medical evidence presented disputing Acquazzino’s opinions concern- ing Prince’s diagnosis or that there was a standard treatment provided for patients with such a diagnosis. It also credited Acquazzino’s opinion that Prince had a 60-percent chance of survival with the standard treatment, but would die without it, and that if Prince’s treatment was interrupted or delayed, it would increase the risk of relapse and decrease the treatment’s efficacy. It noted that neither parent raised a religious or cul- tural objection to the treatment Prince was receiving. The juvenile court also considered and rejected both parents’ argument that they withdrew Prince from treatment only to obtain a second opinion. It found that the parents’ “more likely motivation in removing Prince from the state was to stop his treatment altogether for an undetermined period of time.” The juvenile court specifically noted that it found unconvincing Mohamed’s testimony that he deferred to Abak in removing Prince from the state and that he lacked knowledge of Abak’s “efforts or lack thereof in seeking a second opinion.” Mohamed appealed, and Abak cross-appealed. ASSIGNMENTS OF ERROR Mohamed assigns that the juvenile court erred by find- ing (1) that Prince lacked proper parental care by reason of his faults or habits and (2) that his actions placed Prince at a  - 425 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports IN RE INTEREST OF PRINCE R. Cite as 308 Neb. 415 definite risk of harm. On cross-appeal, Abak assigns that the juvenile court erred by making the same determinations with respect to her. STANDARD OF REVIEW [1] Juvenile cases are reviewed de novo on the record, and an appellate court is required to reach a conclusion independent of the juvenile court’s findings; however, when the evidence is in conflict, an appellate court may consider and give weight to the fact that the trial court observed the witnesses and accepted one version of the facts over the other. In re Interest of A.A. et al., 307 Neb. 817 , 951 N.W.2d 144 (2020). ANALYSIS Background Regarding Adjudication Proceedings in Juvenile Court. [2,3] Before addressing Mohamed’s and Abak’s arguments, we briefly review the standards governing the adjudication phase of a juvenile court proceeding. The purpose of the adju- dication phase is to protect the interests of the child. In re Interest of Justine J., 286 Neb. 250 , 835 N.W.2d 674 (2013). To obtain jurisdiction over a juvenile at the adjudication stage, the court’s only concern is whether the conditions in which the juvenile presently finds himself or herself fit within the asserted subsection of Neb. Rev. Stat. § 43-247 (Reissue 2016). In re Interest of Justine J., supra. Section 43-247(3)(a) sets forth numerous grounds by which the juvenile court could take jurisdiction over a juvenile. See In re Interest of Jeremy U. et al., 304 Neb. 734 , 936 N.W.2d 733 (2020). The ground relevant to this case is that the juvenile “lacks proper parental care by reason of the fault or habits of his or her parent, guardian, or custodian.” See § 43-247(3)(a). As we have previously explained, “proper parental care” includes providing a home, support, subsistence, education, and other care necessary for the health, morals, and well- being of the child. . . . It commands that the child not  - 426 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports IN RE INTEREST OF PRINCE R. Cite as 308 Neb. 415 be placed in situations dangerous to life or limb, and not be permitted to engage in activities injurious to his health or morals. State v. Metteer, 203 Neb. 515 , 520, 279 N.W.2d 374 , 377 (1979). See, also, In re Interest of Jeremy U. et al., supra. In considering whether a juvenile lacks proper parental care, our case law has incorporated a risk of harm component. In re Interest of Jeremy U. et al., supra. To show that a juvenile lacks proper parental care, the State is not required to prove that the child has actually suffered physical harm, but the State must establish that, without intervention, there is a definite risk of future harm. See In re Interest of Kane L. & Carter L., 299 Neb. 834 , 910 N.W.2d 789 (2018). We recently explained in In re Interest of Jeremy U. et al. that a claim under § 43-247(3)(a) that a juvenile “lacks proper parental care by reason of the fault or habits of his or her par- ent, guardian, or custodian” should be analyzed through a two- step inquiry: The first step is to determine if the juvenile is lacking proper parental care, whether such care is being provided by a parent, a guardian, or a custodian. If a juvenile is not lacking that type of care (and . . . there is no defi- nite risk of harm), adjudication under this provision of § 43-247(3)(a) is improper. If, on the other hand, the juvenile is lacking such care, the court should proceed to the second step: Does that condition result from the fault or habits of the juvenile’s parent, guardian, or custodian? If the answer to that question is also yes, then the juvenile court should take jurisdiction of the juvenile and proceed to a proper disposition. 304 Neb. at 748 , 936 N.W.2d at 744-45. [4] At the adjudication stage, in order for a juvenile court to assume jurisdiction of minor children under § 43-247(3)(a), the State must prove the allegations of the petition by a pre- ponderance of the evidence. In re Interest of Heather R. et al., 269 Neb. 653 , 694 N.W.2d 659 (2005). A preponderance of  - 427 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports IN RE INTEREST OF PRINCE R. Cite as 308 Neb. 415 the evidence is the equivalent of the greater weight of the evi- dence, which means evidence sufficient to make a claim more likely true than not true. See In re Interest of Vladimir G., 306 Neb. 127 , 944 N.W.2d 309 (2020). Both Mohamed and Abak argue on appeal and cross-appeal that the State failed to carry its burden to show that Prince lacked proper parental care by reason of their faults or habits and that, without intervention, Prince faced a definite risk of future harm. We turn to their arguments now, beginning with Abak’s. Abak’s Cross-Appeal. Abak contends that Prince did not lack proper parental care by reason of her fault or habits and that Prince did not face a definite risk of future harm. In support of her argument that Prince received adequate parental care, Abak primarily empha- sizes evidence of her care for Prince prior to the meeting at Children’s on October 1, 2019. She mentions, for example, that she noticed the swelling in Prince’s forearm and arranged for him to be seen by doctors. She points out that she agreed to the treatment plan recommended by Children’s and that Prince initially received treatment as recommended. She also directs us to a note recorded by Chesters in July 2019 stating that she and Mohamed “love Prince very much.” But even if this evidence tends to show that Abak was ensuring that Prince received adequate medical care for a period of time, it fails to address the crux of the State’s case: that in early October, Abak took Prince out of Nebraska and, for more than 3 weeks until the State was able to locate them, kept Prince from receiving the treatment Acquazzino testified was essential to his survival. The closest Abak comes to providing an explanation for her actions after the October 1, 2019, meeting are sugges- tions that she was not refusing to allow treatment, but merely seeking a second opinion. This claim might have more force if there were evidence in the record that Abak had actu- ally made arrangements to obtain a second opinion or taken  - 428 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports IN RE INTEREST OF PRINCE R. Cite as 308 Neb. 415 significant, concrete steps toward doing so. But even though Acquazzino had recently informed Mohamed and Abak that Prince’s condition was serious, that delays in treatment sub- jected Prince to risk of lethal harm, and that thus, any second opinion must be obtained quickly, there is no evidence that even after Prince had already missed approximately 3 weeks of scheduled treatment, Abak had so much as begun to iden- tify where she might obtain a second opinion. Further, Abak’s comment to Herrera that “if I even get another doctor, it’s not going to be in Nebraska,” suggests that Abak had no immedi- ate intentions of arranging for a second opinion. (Emphasis supplied.) Based on this evidence, we agree with the juvenile court that it is more likely than not that Abak did not leave Nebraska with Prince to obtain a second opinion, but to stop his treatment altogether for an indefinite period of time. We also agree with the juvenile court that the decision to indefi- nitely stop treatment, which Acquazzino testified was essential to Prince’s survival, deprived Prince of proper parental care by reason of the faults or habits of Abak. Abak also argues that the juvenile court erred by find- ing that, without intervention, Prince faced a definite risk of future harm. Here, Abak argues that because the State could not definitively show that Prince was harmed by not receiving treatment during the time in which she and Prince were not in Nebraska, it did not prove the risk of harm element. Abak’s argument, however, is an attempt to transform the risk of harm requirement into a requirement that the juvenile suffer actual harm before the juvenile court obtains jurisdiction. As we have emphasized on many occasions, however, the Nebraska Juvenile Code does not require a juvenile court to wait until disaster has befallen a minor child before the court may acquire jurisdiction. See, e.g., In re Interest of Justine J., 286 Neb. 250 , 835 N.W.2d 674 (2013). The State introduced evidence showing that Prince was placed at risk of harm by a delay in treatment. As we have noted, Acquazzino testified that treatment delays increase  - 429 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports IN RE INTEREST OF PRINCE R. Cite as 308 Neb. 415 the risk of relapse and decrease the overall efficacy of the treatment and that if the treatment was stopped altogether, Prince would die. Her testimony also established that due to his treatment and the central line in his body, Prince needed to be regularly seen by medical professionals. We find the State established that, without intervention, there was a definite risk of future harm to Prince as a result of Abak’s actions. Under the two-step analysis set forth in In re Interest of Jeremy U. et al., 304 Neb. 734 , 936 N.W.2d 733 (2020), the State established that Prince lacked proper parental care and faced a definite risk of future harm and that this resulted from the fault or habits of Abak. We thus find no merit to Abak’s cross-appeal. Mohamed’s Appeal. In his appeal, Mohamed makes many of the arguments made by Abak. Like Abak, he contends that he ensured Prince received the treatment recommended by Children’s up until early October 2019 and that the treatment stopped at that point only because a decision was made to obtain a second opinion. He also makes the argument that because the State did not prove that Prince actually suffered harm because of the treat- ment delay, it did not establish the risk of harm element. As we have already explained, however, we are unpersuaded by these arguments. We have already determined under the first step of the two-step In re Interest of Jeremy U. analysis that, after his treatment was stopped in early October 2019, Prince lacked proper parental care and, as a result, faced a definite risk of future harm. Mohamed does make one argument, however, that remains unaddressed even after our analysis of Abak’s cross-appeal: Mohamed attempts to place any blame for a lack of paren- tal care exclusively on Abak. Mohamed argues that while he agreed that a second opinion should be sought, he believed Abak was, in fact, seeking such an opinion when she left the state with Prince in October 2019. Although he does not  - 430 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports IN RE INTEREST OF PRINCE R. Cite as 308 Neb. 415 frame the argument in these exact terms, Mohamed appears to argue that even if the State proved at step one of the In re Interest of Jeremy U. analysis that Prince lacked proper paren- tal care and faced a definite risk of future harm because of the treatment delay in October 2019, it did not prove at step two that this was a result of the fault or habits of Mohamed. As noted above, the juvenile court rejected this argument, finding that both parents made the decision to withdraw Prince from treatment and to remove him from Nebraska—not to obtain a second opinion but to stop his treatment altogether for an undetermined period of time. We agree that, based on the evidence in the record, it is more likely than not that Mohamed supported and bears responsibility for the decision to remove Prince from treatment indefinitely regardless of whether a sec- ond opinion was sought. Several pieces of evidence inform this conclusion, which we outline below. Initially, we note that the record contains evidence of mul- tiple statements by Mohamed that the recommended treatment was not only unnecessary to Prince’s survival, but harmful to him. Acquazzino, Chesters, Parmer, and Herrera all testified that Mohamed made such statements. Although the fact that Mohamed made these statements alone would not demonstrate that Prince lacked proper parental care by reason of the fault or habits of Mohamed, they do suggest that Mohamed disagreed with and wanted to discontinue the recommended treatment and was not merely an unwitting victim of Abak. There are also pieces of evidence that, when considered together, undermine Mohamed’s claims that he wanted to obtain a second opinion, that he deferred to Abak to arrange for such an opinion, and that he believed that such an opin- ion was being sought. First, Mohamed offered testimony regarding his devotion and attachment to Prince. The juvenile court found this testimony credible, observing that Mohamed “undoubtedly loves his son.” But while there is no dispute that Mohamed cared deeply for Prince, there is evidence suggest- ing that he would not have trusted Abak to ensure that Prince  - 431 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports IN RE INTEREST OF PRINCE R. Cite as 308 Neb. 415 received needed medical care. Mohamed and Abak reported to Chesters that “they don’t always get along.” In addition, in a meeting with Chesters, Mohamed shared that he was concerned about Abak’s arrest record and drug and alcohol use and that he believed her drug usage might explain why Prince missed several speech therapy appointments. During that meeting, Mohamed requested that all appointments be made on days on which he did not have to work. Given Mohamed’s attachment to Prince and his prior concerns regarding Abak’s reliability, it is difficult to believe that Mohamed entrusted Abak with the task of obtaining a second opinion. Mohamed emphasizes that he sent an email to Chesters on October 8, 2019, asking that Prince’s medical records be com- piled so that a second opinion could be sought. This evidence does not persuade us that Mohamed bears no responsibility for the lack of proper parental care. Chesters testified that while she compiled the records, she also informed Mohamed he would need to arrange to come pick up a disc containing the records, and he never did so. Mohamed disagreed with this testimony, claiming that Chesters emailed the records to him. But even assuming the truth of Mohamed’s testimony on this point, Mohamed also testified that he never sent the records to another medical provider. The assertion that Mohamed believed a second opinion was being obtained is difficult to square with the fact that he knew the records necessary to obtain such an opinion had not been given to another provider. We acknowledge that Mohamed testified that he believed Abak was arranging for a second opinion and that Abak told him she had made an appointment with another provider. The juvenile court, however, found Mohamed’s “claimed ignorance of [Prince’s and Abak’s] whereabouts, or [Abak’s] efforts or lack thereof in seeking a second opinion, unconvincing.” The juvenile court had the opportunity to observe Mohamed’s testimony firsthand, and given the evidence in the record we have discussed, we believe deference to its assessment of the credibility of Mohamed’s claims is warranted. See In re  - 432 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports IN RE INTEREST OF PRINCE R. Cite as 308 Neb. 415 Interest of Leyton C. & Landyn C., 307 Neb. 529 , 949 N.W.2d 773 (2020). Based on the foregoing, we agree with the juvenile court that it is more likely than not that Mohamed supported Abak’s tak- ing Prince from the state because he too wanted the treatment stopped indefinitely and did not want Prince to be found. We thus reject Mohamed’s argument that the State failed to prove at step two of the analysis under In re Interest of Jeremy U. et al., 304 Neb. 734 , 936 N.W.2d 733 (2020), that Prince lacked proper parental care because of Mohamed’s fault or habits. CONCLUSION We find that the juvenile court did not err by adjudicating Prince as a child that lacked proper parental care by reason of the fault or habits of both Mohamed and Abak. Accordingly, we affirm. Affirmed.

2021-03-19 05:09:06.441045+00

https://www.nebraska.gov/apps-courts-epub/public/viewOpinion?docId=N00007612PUB

Nebraska Supreme Court Online Library www.nebraska.gov/apps-courts-epub/ 03/19/2021 12:09 AM CDT - 397 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports HOGAN v. HOGAN Cite as 308 Neb. 397 Brooke B. Hogan, appellant, v. Nicholas T. Hogan, appellee. ___ N.W.2d ___ Filed February 12, 2021. No. S-20-254. 1. Child Custody: Jurisdiction: Appeal and Error. The question whether jurisdiction should be exercised under the Uniform Child Custody Jurisdiction and Enforcement Act is entrusted to the discretion of the trial court and is reviewed by an appellate court de novo on the record for abuse of discretion. 2. ____: ____: ____. In considering whether jurisdiction exists under the Uniform Child Custody Jurisdiction and Enforcement Act, a jurisdic- tional question that does not involve a factual dispute is determined by an appellate court as a matter of law, which requires an appellate court to reach a conclusion independent from the trial court. 3. Divorce: Judgments: Appeal and Error. The meaning of a divorce decree presents a question of law, in connection with which an appellate court reaches a conclusion independent of the determination reached by the court below. 4. Child Custody: Jurisdiction. Jurisdiction over a child custody proceed- ing with interstate implications, including one seeking to modify a child custody decision, is governed exclusively by the Uniform Child Custody Jurisdiction and Enforcement Act. 5. ____: ____. Under the Uniform Child Custody Jurisdiction and Enforcement Act, Neb. Rev. Stat. § 43-1239 (Reissue 2016), a state’s exclusive and continuing jurisdiction is relinquished when both parties and the children no longer reside in the state. 6. Jurisdiction: Service of Process. A voluntary appearance of a party is equivalent to service of process for purposes of personal jurisdiction. 7. Jurisdiction: Words and Phrases. Subject matter jurisdiction is the power of a tribunal to hear and determine a case in the general class or category to which the proceedings in question belong and to deal with the general subject matter involved.  - 398 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports HOGAN v. HOGAN Cite as 308 Neb. 397 8. Jurisdiction. Parties cannot confer subject matter jurisdiction upon a judicial tribunal by either acquiescence or consent, nor may subject mat- ter jurisdiction be created by waiver, estoppel, consent, or conduct of the parties. 9. Actions: Jurisdiction. Lack of subject matter jurisdiction may be raised at any time by any party or by the court sua sponte. 10. ____: ____. A court action taken without subject matter jurisdiction is void. Appeal from the District Court for Douglas County: Gary B. Randall, Judge. Affirmed. Andrea L. McChesney, of McChesney Family Law Office, for appellant. Dennis G. Whelan, of Slowiaczek Albers, P.C., L.L.O., for appellee. Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ. Miller-Lerman, J. NATURE OF CASE Brooke B. Hogan, appellant, and Nicholas T. Hogan, appel- lee, were divorced in February 2019, in Douglas County, Nebraska. Several months after the decree and parenting plan were entered, Brooke and Nicholas jointly sought permis- sion to move from Nebraska to Arizona, and the district court entered an order modifying the parties’ parenting plan accord- ingly. The parties and the children moved to Arizona. Later the same year, Brooke initiated the present matter when she filed a complaint in the Douglas County District Court to modify the decree and parenting plan, with the ultimate objec- tive of allowing her to move, with the parties’ children, back to Nebraska. Nicholas moved to dismiss Brooke’s complaint to modify the decree, claiming that under Neb. Rev. Stat. § 43-1239 (a)(2) (Reissue 2016), of Nebraska’s Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), the district court lacked subject matter jurisdiction because the  - 399 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports HOGAN v. HOGAN Cite as 308 Neb. 397 parties and children no longer resided in Nebraska. The district court determined that the parties and children did not reside in Nebraska, that it lacked continuing exclusive jurisdiction over the child custody determination, and that proper jurisdiction of the current issue is with Arizona. The district court dismissed Brooke’s complaint to modify. Brooke appeals. We conclude that the district court’s jurisdictional ruling was proper and, in so doing, make no comment on the merits of Brooke’s com- plaint to modify. We affirm. STATEMENT OF FACTS On February 4, 2019, the district court entered a decree of dissolution of marriage and a parenting plan, which awarded the parties joint legal and physical custody of their minor chil- dren, subject to parenting time set forth in the parenting plan. In April 2019, the parties filed a joint complaint to modify the decree and parenting plan to allow them to move with the children from Nebraska to Arizona. The district court entered the stipulated order. Each party subsequently purchased a home in the Phoenix area, and they moved to Arizona. By the time the children started the school year on August 15, Brooke, Nicholas, and the children were residing in Arizona. On October 22, 2019, Brooke filed a complaint to modify in the Douglas County District Court, seeking a modification of the parenting plan with the ultimate objective of gaining permission to return with the children to Nebraska. In support of her motion, Brooke stated that she and the children had encountered problems transitioning to living in Arizona. She asserted that she and the children have no friends or family in Arizona and struggled to find safe housing and appropri- ate schools. On October 25, 2019, Nicholas entered a voluntary appear- ance and, on October 30, filed a motion to dismiss the com- plaint to modify on the basis that the Nebraska court lacked subject matter jurisdiction under § 43-1239(a)(2). Section 43-1239 provides, in relevant part:  - 400 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports HOGAN v. HOGAN Cite as 308 Neb. 397 [A] court of this state which has made a child custody determination consistent with section 43-1238 or 43-1240 has exclusive, continuing jurisdiction over the determina- tion until . . . (2) a court of this state or a court of another state determines that the child, the child’s parents, and any person acting as a parent do not presently reside in this state. Brooke claimed that Nebraska retained continuing exclusive jurisdiction because it continued to be the residence, place of domicile, and home state of the children within 6 months before the commencement of the complaint to modify. In support of her claim, she asserted that during the 6 months prior to her complaint, the parties continued to own homes in Nebraska, they had driver’s licenses and registered vehicles in Nebraska, they maintained voter’s rights in Nebraska, and the children were seen by doctors and dentists in Nebraska. However, she admitted that by August 2019, the parties resided in Arizona. Nicholas noted that under § 43-1239(a)(2), because nei- ther the parties nor the children resided in Nebraska when Brooke filed her complaint to modify, jurisdiction was proper in Arizona. Following a hearing, the district court determined that because the parties and the children resided in Arizona when Brooke filed her complaint, Nebraska should relinquish exclu- sive continuing jurisdiction over modifications to the child cus- tody determination. The court specifically noted that Brooke had stipulated to an order approximately 5 months before, showing the parties’ intention to move to Arizona and remain there with the minor children, which order was not appealed. The district court noted that it had conferred with the Maricopa County Superior Court of Arizona to review factors of the UCCJEA and determined that jurisdiction was appropriate in Arizona. On January 9, 2020, the district court granted Nicholas’ motion to dismiss for lack of continuing exclusive jurisdiction under § 43-1239(a)(2) and dismissed Brooke’s  - 401 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports HOGAN v. HOGAN Cite as 308 Neb. 397 complaint to modify. Brooke unsuccessfully filed a motion to reconsider. Brooke appeals. ASSIGNMENTS OF ERROR Brooke assigns, summarized and restated, that the district court erred when it dismissed her complaint to modify the decree. She specifically claimed that Nebraska had exclusive continuing jurisdiction (1) under § 43-1239(a)(1) and, fur- ther, (2) because Nicholas conferred jurisdiction on the dis- trict court. STANDARDS OF REVIEW [1] The question whether jurisdiction should be exercised under the UCCJEA is entrusted to the discretion of the trial court and is reviewed by an appellate court de novo on the record for abuse of discretion. In re Guardianship of S.T., 300 Neb. 72 , 912 N.W.2d 262 (2018). [2] In considering whether jurisdiction exists under the UCCJEA, a jurisdictional question that does not involve a factual dispute is determined by an appellate court as a matter of law, which requires an appellate court to reach a conclu- sion independent from the trial court. In re Guardianship of S.T., supra. [3] The meaning of a divorce decree presents a question of law, in connection with which an appellate court reaches a conclusion independent of the determination reached by the court below. Braun v. Braun, 306 Neb. 890 , 947 N.W.2d 694 (2020). ANALYSIS Brooke contends that the district court retained continu- ing exclusive jurisdiction to make child custody determina- tions and that it erred when it granted Nicholas’ motion to dismiss and dismissed her complaint to modify the parenting plan. She specifically claimed that (1) due to connections to Nebraska, § 43-1239(a)(1) vested the district court with  - 402 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports HOGAN v. HOGAN Cite as 308 Neb. 397 continuing exclusive jurisdiction, and (2) Nicholas conferred jurisdiction on the district court by making a voluntary appear- ance and by agreeing to application of Nebraska law. We reject these arguments. § 43-1239 Analysis. [4] Jurisdiction over a child custody proceeding with inter- state implications, including one seeking to modify a child cus- tody decision, is governed exclusively by the UCCJEA. See In re Guardianship of S.T., supra. The purposes of the UCCJEA are to avoid interstate jurisdictional competition and conflict in child custody matters, to promote cooperation between courts of other states so that a custody determination can be rendered in a state best suited to decide the case in the interest of the child, to discourage the use of the interstate system for continu- ing custody controversies, to deter child abductions, to avoid relitigation of custody issues, and to facilitate enforcement of custody orders. Watson v. Watson, 272 Neb. 647 , 724 N.W.2d 24 (2006). A Nebraska court which made an initial custody determina- tion applies § 43-1239 to determine whether it has continuing exclusive jurisdiction to modify child custody. Section 43-1239 provides as follows: (a) Except as otherwise provided in section 43-1241, a court of this state which has made a child custody determination consistent with section 43-1238 or 43-1240 has exclusive, continuing jurisdiction over the determina- tion until: (1) a court of this state determines that neither the child, nor the child and one parent, nor the child and a person acting as a parent have a significant connection with this state and that substantial evidence is no longer available in this state concerning the child’s care, protec- tion, training, and personal relationships; or (2) a court of this state or a court of another state deter- mines that the child, the child’s parents, and any person acting as a parent do not presently reside in this state.  - 403 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports HOGAN v. HOGAN Cite as 308 Neb. 397 (b) A court of this state which has made a child custody determination and does not have exclusive, continuing jurisdiction under this section may modify that determina- tion only if it has jurisdiction to make an initial determi- nation under section 43-1238. [5] Here, because neither the parties nor the children resided in Nebraska at the time of Brooke’s filing, the district court did not err when it found that under § 43-1239(a)(2), Nebraska no longer possessed exclusive, continuing jurisdiction. This is because when the children and the parents have moved away from the issuing state, the issuing state no longer meets the juris- dictional prerequisites of § 43-1239(a). Such was the case here. Nebraska’s exclusive and continuing ­jurisdiction was relin- quished because both parties and the children no longer reside in the state. See, Watson v. Watson, supra; § 43-1239(a)(2). The record was undisputed that Brooke, Nicholas, and the children resided in Arizona by August 2019. Brooke made several arguments that their move was so recent that the parties retained a “significant connection” to Nebraska and that, hence, Nebraska retained jurisdiction under § 43-1239(a)(1). In contrast, relying on § 43-1239(a)(2), Nicholas argued that because the parties and children had moved to Arizona, the Nebraska court was no longer the exclusive forum. We agree with Nicholas, as did the district court. The statute is constructed such that jurisdiction may be relinquished based on either § 43-1239(a)(1) or § 43-1239(a)(2). Even assuming that Nebraska could maintain continuing jurisdiction over the child custody determination under § 43-1239(a)(1), the court did not err when it determined it had lost exclusiv- ity under § 43-1239(a)(2). This assignment of error is with- out merit. Subject Matter Jurisdiction. Brooke next contends that Nicholas conferred subject matter jurisdiction on the district court by filing a voluntary appear- ance and, in addition, that he acquiesced to proceedings in Nebraska when he agreed to application of Nebraska law in  - 404 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports HOGAN v. HOGAN Cite as 308 Neb. 397 the parties’ modified stipulated decree and parenting plan. It is axiomatic that parties cannot confer subject matter jurisdic- tion upon a judicial tribunal by consent, and we find no merit to this argument. [6-10] A voluntary appearance of a party is equivalent to service of process for purposes of personal jurisdiction. See Johnson v. Johnson, 282 Neb. 42 , 803 N.W.2d 420 (2011). Subject matter jurisdiction is the power of a tribunal to hear and determine a case in the general class or category to which the proceedings in question belong and to deal with the general subject matter involved. J.S. v. Grand Island Public Schools, 297 Neb. 347 , 899 N.W.2d 893 (2017). Parties cannot confer subject matter jurisdiction upon a judicial tribunal by either acquiescence or consent, nor may subject matter jurisdiction be created by waiver, estoppel, consent, or conduct of the parties. Id. Lack of subject matter jurisdiction may be raised at any time by any party or by the court sua sponte. Id. A court action taken without subject matter jurisdiction is void. Id. As we understand Brooke’s argument, she asks this court to ignore the UCCJEA and instead conclude that Nicholas’ vol- untary appearance created exclusive subject matter jurisdiction in the district court for Douglas County. Based on the proposi- tions outlined above, this argument fails. Brooke also claims that Nebraska must retain continuing exclusive jurisdiction because of a provision in the parties’ order of modification and attached parenting plan providing that a move to another state would not “in any way alter exist- ing Nebraska law.” This argument is also unpersuasive. By applying Nebraska’s UCCJEA, the Nebraska court did in fact employ “existing Nebraska law” as anticipated by previous orders. See § 43-1239(a)(2). This argument has no merit. CONCLUSION For the reasons set forth above, Brooke’s assignments of error are without merit, and accordingly, we affirm. Affirmed.

2021-01-27 07:14:43.518862+00

http://www.search.txcourts.gov/RetrieveDocument.aspx?DocId=27587&Index=%5c%5c10%2e20%2e4%2e7%5cTamesIndexes%5ccoa05%5cOrder

Order entered January 25, 2021 In The Court of Appeals Fifth District of Texas at Dallas No. 05-20-00981-CV IN THE INTEREST OF D.B.S., A CHILD On Appeal from the 469th Judicial District Court Collin County, Texas Trial Court Cause No. 469-52326-2020 ORDER On December 11, 2020, after being notified by court reporter Stephanie Hunn that the reporter’s record would not be filed because appellant had not requested it, we directed appellant to file, within ten days, written verification she had requested the record. Although we cautioned appellant that failure to comply could result in the appeal being submitted without the reporter’s record, she has not complied. See TEX. R. APP. P. 37.3(c). Accordingly, we ORDER the appeal submitted without the reporter’s record. See id. As the clerk’s record has been filed, we further ORDER appellant to file her brief no later than February 24, 2021. /s/ KEN MOLBERG JUSTICE

2020-06-05 14:08:41.551418+00

http://www.courts.state.ny.us/reporter/3dseries/2020/2020_03115.htm

Matter of Rosa Y. A. P. v Jose B. P. T. (2020 NY Slip Op 03115) Matter of Rosa Y. A. P. v Jose B. P. T. 2020 NY Slip Op 03115 Decided on June 3, 2020 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on June 3, 2020 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department REINALDO E. RIVERA, J.P. SHERI S. ROMAN ROBERT J. MILLER PAUL WOOTEN, JJ. 2019-08492 (Docket Nos. P-14904-18, P-14905-18) [*1]In the Matter of Rosa Y. A. P. (Anonymous), respondent, v Jose B. P. T. (Anonymous), appellant. Linda C. Braunsberg, Staten Island, NY, for appellant. Sandra M. Munoz, Jamaica, NY, for respondent. Joseph H. Rotkowitz, Flushing, NY, attorney for the children. DECISION & ORDER In related proceedings pursuant to Family Court Act article 5, Jose B. P. T. appeals from an order of the Family Court, Queens County (Dweynie E. Paul, J.), dated June 7, 2019. The order, after a hearing, granted the petitions and adjudicated Jose B. P. T. to be the father of the subject children. ORDERED that the order is affirmed, without costs or disbursements. Jose B. P. T. (hereinafter the appellant) and the petitioner (hereinafter the mother), who are originally from the Dominican Republic, were in a intimate relationship, though never married, during the time of conception of both of the subject children. The children were born in the Dominican Republic in 2003 and 2004, respectively. At the time of their birth, the appellant recognized both children as his own, he was present at the hospital during their delivery, and he registered both children's birth certificates, which list him as their father. Sometime during the children's early childhood, the parties separated, but the appellant continued to support the children financially, and occasionally visited with the children on weekends and during the summer. The children would also visit with the appellant's mother every summer, whom they identified as their grandmother. Both of the children know the appellant as their father. In or around 2016, the appellant emigrated to New York, and the mother and the children followed in February 2018. While in New York, the children spoke to the appellant over the phone, but they did not visit with him until July 2018. That same month the mother filed the instant petitions. During the proceedings, the appellant sought genetic marker testing. There is no evidence or claim that any other person could be the father of the children beyond the appellant's claim that the mother has circulated a rumor that he is not the father, a claim the mother denies, and which the appellant asserts as the basis for requesting genetic marker testing. Following a hearing, the Family Court concluded that the appellant was equitably estopped from denying paternity, denied his application for genetic marker testing, and adjudicated him to be the children's father. This appeal ensued. " Before a party can be estopped from denying paternity or from obtaining a DNA test that may establish that he is not the child's biological parent, the court must be convinced that applying equitable estoppel is in the child's best interest'" (Matter of Guy M.J. v Abiola N.S., 158 AD3d 764, 765, quoting Matter of Commissioner of Social Servs. v Julio J., 20 NY3d 995, 997; see Matter of Shondel J. v Mark D., 7 NY3d 320, 327). Here, where the appellant had long-assumed the role of a parent, led the children to believe he was their father, and provided financial support to the children for most of their lives, we agree with the Family Court's determination that it was in the children's best interests to apply the doctrine of equitable estoppel (see Matter of Shondel J. v Mark D., 7 NY3d at 327; Matter of Guy M.J. v Abiola N.S., 158 AD3d at 765; Matter of Merritt v Allen, 99 AD3d 1006, 1007). Neither the rumor allegedly perpetrated by the mother that the appellant was not the father, nor the deterioration of the appellant's relationship with the children beginning around the time the petitions in this matter were filed, militate against the application of the doctrine of equitable estoppel (see Matter of Shondel J. v Mark D., 7 NY3d at 331-332; Brian B. v Dionne B., 267 AD2d 188, 188). The appellant's remaining contentions are without merit. RIVERA, J.P., ROMAN, MILLER and WOOTEN, JJ., concur. ENTER: Aprilanne Agostino Clerk of the Court

2020-12-03 22:00:27.145949+00

https://www2.ca3.uscourts.gov/opinarch/201134np.pdf

NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________ No. 20-1134 _____________ In re: LANDSOURCE COMMUNITIES DEVELOPMENT LLC, a/k/a Lennar/LNR Funding, a/k/a LENR Properties LLC, a/k/a NWHL Investment, LLC, et al., Debtors v. CITIZENS AGAINST CORPORATE CRIME, LLC, Appellant _____________________________________ On Appeal from the United States District Court for the District of Delaware (District Court No.: 1:18-cv-01793) District Judge: Colm F. Connolly _____________________________________ Submitted under Third Circuit L.A.R. 34.1(a) September 25, 2020 (Opinion Filed: December 3, 2020) Before: McKEE, JORDAN and RENDELL, Circuit Judges. ___________ O P I N I O N* _________ * This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. RENDELL, Circuit Judge. Citizens Against Corporate Crime LLC (“CACC”) and its sole member and officer Nicholas Marsch III, appeal the District Court’s order affirming the decision of the Bankruptcy Court to reopen the Chapter 11 case of Debtor LandSource Communities Development LLC and to enforce its order confirming the final reorganization plan. By its order, the Bankruptcy Court enjoined CACC and Marsch—who was a participant in the Chapter 11 proceedings—from litigating claims against another Chapter 11 participant, Lennar Corporation. The claims against Lennar, the Bankruptcy Court concluded, were barred by the confirmation order. The District Court agreed with the Bankruptcy Court, as do we and, therefore, we will affirm. I. As we write for the parties, and they are well-acquainted with the circumstances of this case from their litigation here and in jurisdictions across the country,1 we set forth the following background only as necessary to resolve this appeal. In 2008, LandSource, a real estate development company, petitioned for Chapter 11 bankruptcy relief. At that time, Appellee Lennar was LandSource’s largest unsecured creditor. The Creditor’s Committee, of which Marsch and his other company— Briarwood Capital—were members, sought the release of Lennar’s claims to permit and 1 See, e.g., In re Nicholas Marsch, No. 10-02939-PB11, 2010 WL 5114726 (Bankr. S.D. Cal. Dec. 2, 2010); In re Briarwood Capital, LLC, No. 10-02677-PB11, 2010 WL 2884944 (Bankr. S.D. Cal. July 20, 2010); Briarwood Capital, LLC. v. Lennar Homes of Cal., Inc., Nos. D054803, D056061, 2010 WL 4873505 (Cal. Ct. App. Dec. 1, 2010); Briarwood Capital, LLC v. Lennar Corp., 160 So. 3d 544 (Fla. Dist. Ct. App. 2015). 2 maximize any distributions available for smaller unsecured creditors. Without such release, the lion’s share of distributions from the bankruptcy estate would likely have flowed to Lennar. Thus, the Creditor’s Committee negotiated a deal with Lennar. Under the deal, Lennar agreed to contribute nearly $140 million to the estate and to release its unsecured claims. In exchange, Lennar received, among other things, a broad release and waiver of “any and all Claims . . . or liabilities whatsoever” held by “any Person, in any way relating to the Debtors, the Chapter 11 Cases, or the Plan.” JA 11 (citing JA 1154) (emphasis added). Later, the Bankruptcy Court adopted the terms of this deal into its order confirming the final Chapter 11 plan. Neither Marsch nor his company, Briarwood, appealed from the final confirmation order. Over seven-and-a-half years later, Marsch, as sole owner and officer, formed Appellant CACC under Wyoming law and filed a whistleblower action against Lennar in California court. CACC alleged that Lennar, by its conduct leading up to and through the LandSource Chapter 11 bankruptcy, defrauded the California Public Employees’ Retirement System (“CalPERS”), which had been a major investor in LandSource. The California Office of the Attorney General reviewed CACC’s allegations and complaint, but ultimately declined to intervene. In response to the California whistleblower case, Lennar moved the Bankruptcy Court to reopen the LandSource Chapter 11 case and to enforce its final plan confirmation order by enjoining CACC and Marsch from proceeding with the suit. After a hearing, the Bankruptcy Court granted both Lennar’s motion to reopen and its motion to enforce, concluding that: 3  (1) it is undisputed that Marsch was the “sole and controlling member” of CACC and that Marsch “formed CACC as a way of trying to get around and avoid the release and injunction provision provided in the confirmed Chapter 11 plan of LandSource which was not appealed and [h]as long, long since become final; (2) there is “no question” that “Mr. Marsch is in privity with CACC [and] Briarwood and is bound by the injunction and release;” and (3) “the people of California do not oppose the relief that Lennar has requested” and the “actual relief sought by Lennar is limited to Mr. Marsch and CACC.”2 JA 17–18 (citing JA 2329). CACC appealed and the District Court affirmed in a thorough, well-reasoned thirty-three-page opinion. This timely appeal followed. II. The District Court had jurisdiction under 28 U.S.C. § 158 (a)(1). We have jurisdiction under 28 U.S.C. § 158 (d). “We exercise plenary review of an order from a district court sitting as an appellate court in review of a bankruptcy court.” In re Exide Techs., 607 F.3d 957 , 961– 62 (3d Cir. 2010) (citing In re CellNet Data Sys., Inc., 327 F.3d 242 , 244 (3d Cir. 2003)). In so doing, we review legal determinations by a bankruptcy court de novo and review factual findings for clear error. Id. (citing In re Gen. DataComm Indus., Inc., 407 F.3d 616 , 619 (3d Cir. 2005)). However, a bankruptcy court’s decision on a motion to reopen bankruptcy proceedings, like decisions interpreting its own confirmation orders, is 2 JA 2219 (filing from the California Attorney General expressing his “non-opposition to Lennar Corporation’s Motion to Enforce the Injunction and Release in Debtor’s Joint Chapter 11 Plan and Confirmation Order[.]”). 4 afforded greater deference and reviewed for abuse of discretion. In re Shenango Group Inc., 501 F.3d 338 , 346 (3d Cir. 2007) (“[A] bankruptcy court’s interpretation of its own order ought to be subject to review for an abuse of discretion.”); In re Zinchiak, 406 F.3d 214 , 224 (3d Cir. 2005) (“[T]he decision of the Bankruptcy Court to reopen a previously closed bankruptcy proceeding is reviewed for abuse of discretion.”). III. CACC’s and Marsch’s appeal rests on the contention that by reopening the bankruptcy case and enforcing the terms of the confirmation order against them, the Bankruptcy Court effectively and unfairly “enjoined non-parties never before the court, including millions of Californians, the California Department of Justice Office of the Attorney General, and even lawyers, from ever seeking relief under the False Claims Act laws of California and its qui tam remedy.” Appellant’s Br. 18, ECF No. 20. As we explain below, we, like the District Court, disagree with this central premise. After explaining why this premise is fundamentally flawed, we reject each of CACC’s and Marsch’s three other alleged errors that they contend warrant reversal. While CACC and Marsch characterize the Bankruptcy Court’s and District Court’s rulings as affecting “non-parties never before the [Bankruptcy] [C]ourt,” the undisputed facts show that the only parties affected are CACC and Marsch—who himself appeared before the Bankruptcy Court in connection with the LandSource Chapter 11 case over a decade ago. Indeed, Marsch did not merely appear before the Bankruptcy Court as the head of Briarwood, one of the unsecured creditors, but he played a central role in the final reorganization plan as a member of the Creditors’ Committee. It was the 5 Creditors’ Committee, after all, who negotiated the terms of the general release and waiver, which Marsch now seeks to circumvent. That the Bankruptcy Court and District Court’s rulings affect only Marsch and CACC is also evident from the plain terms of the Bankruptcy Court’s order, which granted injunctive relief expressly “limited to Mr. Marsch and CACC.” JA 30. The Bankruptcy Court enjoined only Marsch and CACC from pursuing claims against Lennar—no one else. In fact, the Bankruptcy Court eliminated any risk that its order might be misconstrued as affecting the rights of parties beyond Marsch and CACC in recognizing that “the people of California,” for whom Marsch and CACC purport to speak, in fact, “do not oppose” enjoining Marsch’s and CACC’s whistleblower claims. JA 2223 (emphasis added); see also JA 42–43 (limiting applicability of its order to CACC and Marsch). In view of the undisputed record and the care of the Bankruptcy Court in crafting its order, we are unpersuaded that this matter affects any party beyond CACC and Marsch. Having concluded that the essential premise of CACC’s and Marsch’s argument is meritless, we easily dispense with their other arguments advanced in favor of reversal. Contrary to their contentions, we hold that the District Court did not err in concluding: (1) that the Bankruptcy Court acted within its discretion in reopening the case; (2) that the Bankruptcy Court acted within its discretion in denying their motion for permissive abstention; and (3) that CACC and its sole owner and officer, Marsch, were bound by the terms of the plan confirmation order. 6  First, the Bankruptcy Court acted well within its discretion in reopening the LandSource Chapter 11 case. We regularly recognize the wide latitude of the bankruptcy courts to “reopen a closed case ‘to administer assets, to accord relief to the debtor or for other cause.’” In re Lazy Days’ RV Center, Inc., 724 F.3d 418 , 422 (3d Cir. 2013) (quoting 11 U.S.C. § 350 (b)). Such latitude is appropriate because it is the bankruptcy court that can “provide the best interpretation of its own order[.]” Id. at 423 (quoting In re Zinchiak, 406 F.3d at 224 ) (internal quotation marks omitted). Bankruptcy courts often reopen cases “to resolve [] dispute[s] regarding Settlement Agreement[s] it had previously confirmed . . . . ” Id. This is precisely what the Bankruptcy Court did here and we agree with the District Court that the decision to reopen was fully within the Bankruptcy Court’s discretion because it was “for the limited purpose of interpreting and enforcing [its own] Confirmation Order.” JA 24. Second, we have no jurisdiction to review the District Court’s and Bankruptcy Court’s decisions not to invoke permissive abstention under 28 U.S.C. § 1334 (c)(1). Section 1334(c)(1) provides that a district court may “in the interest of justice . . . abstain[] from hearing a particular proceeding arising under title 11 or arising in or related to a case under title 11.” 28 U.S.C. § 1334 (c)(1). “Any decision to abstain or not to abstain made under subsection (c) . . . is not reviewable by appeal or otherwise by the court of appeals . . . . ” 28 U.S.C. § 1334 (d) (emphasis added). We have explained that “appeals of orders denying permissive abstention unquestionably are not allowed.” In re Seven Fields Dev. Corp., 505 F.3d 237 , 252 (3d Cir. 2007). Thus, we have no jurisdiction to review the denial of CACC’s and Marsch’s underlying motion for 7 permissive abstention. If we had jurisdiction, however, we would agree with the District Court’s well-reasoned conclusion that the Bankruptcy Court did not abuse its discretion in refusing to abstain. Third, we agree with the District Court’s factual conclusion that CACC and Marsch, as CACC’s sole owner and officer in privity with Briarwood, are bound by the terms of the Bankruptcy Court’s confirmation order including the broad, unambiguous provisions by which Marsch and Briarwood released and waived all claims against Lennar. As the District Court explained, the terms of the confirmation order and the release and waiver provisions contained in it plainly bar Marsch’s and CACC’s claims because their claims clearly “relate to” the Chapter 11 bankruptcy case. We discern no error in either the judgment of the District Court or the Bankruptcy Court. IV. For these reasons, we will affirm the District Court’s order. 8

2020-12-03 22:00:35.398464+00

https://cdn.ca9.uscourts.gov/datastore/memoranda/2020/12/03/19-17133.pdf

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 3 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT FEDERAL NATIONAL MORTGAGE No. 19-17133 ASSOCIATION, D.C. No. Plaintiff-counter- 2:17-cv-01758-RFB-EJY defendant-Appellee, v. MEMORANDUM* CASA MESA VILLAS HOMEOWNERS ASSOCIATION, Defendant, and SATICOY BAY LLC SERIES 6671 W. TROPICANA 103, Defendant-counter-claimant- Appellant. Appeal from the United States District Court for the District of Nevada Richard F. Boulware II, District Judge, Presiding Submitted November 17, 2020** Pasadena, California * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Before: RAWLINSON, HUNSAKER, and VANDYKE, Circuit Judges. Saticoy Bay appeals from the district court’s summary judgment order in favor of the Federal National Mortgage Association (Fannie Mae). We have jurisdiction under 28 U.S.C. § 1291 , we review the grant of summary judgment de novo, Berezovsky v. Moniz, 869 F.3d 923 , 927 (9th Cir. 2017), and we affirm. 1. For purposes of 12 U.S.C. § 4617 (j)(3) (the Federal Foreclosure Bar) and Nevada law, Fannie Mae provided sufficient evidence to establish its interest in the Las Vegas residential property located at 6671 W. Tropicana Ave # 103 (Property) at and before the date of the Casa Mesa Villas Homeowners Association’s (HOA) foreclosure sale. See Daisy Tr. v. Wells Fargo Bank, N.A., 445 P.3d 846 , 849 n.3, 850–51 (Nev. 2019) (finding that business records supported by employee declarations and the judicially noticeable loan servicing guide sufficiently established Freddie Mac’s property interest even where it was omitted from the recorded deed of trust); Berezovsky, 869 F.3d at 932–33 (same). Here, Fannie Mae retained a secured interest in the Property because the deed’s recorded beneficiary, Mortgage Electronic Registration Systems, Inc. (MERS), had authority to foreclose on Fannie Mae’s behalf, and Fannie Mae could compel MERS to assign the deed to Fannie Mae. See In re Montierth, 354 P.3d 648 , 650–51 (Nev. 2015); see also Nationstar Mortg., LLC v. Guberland LLC-Series 3, 2018 WL 3025919 , at *2 (Nev. 2 June 15, 2018) (unpublished disposition)1 (applying Montierth’s rationale to facts nearly identical to those here). Saticoy Bay’s statute of frauds arguments likewise fail. Saticoy Bay was not party to Fannie Mae’s acquisition of the note and deed, so under current Nevada law, it may not invoke the statute of frauds. See Easton Bus. Opportunities, Inc. v. Town Exec. Suites, 230 P.3d 827 , 832 n.4 (Nev. 2010) (discussing “the general law that … statue of frauds … cannot ordinarily be asserted by third persons” (quoting Restatement (Second) of Contracts § 324 cmt. b (1981))). And the transaction Saticoy Bay impugns—Fannie Mae’s April 2007 purchase of the note and deed— fully closed long ago, which also renders Nevada’s statute of frauds inapplicable. See Edwards Indus., Inc. v. DTE/BTE, Inc., 923 P.2d 569 , 574 (Nev. 1996) (noting that full performance can render the statute of frauds inapplicable). There is moreover no evidence in the record that the Federal Housing Finance Agency (FHFA), which holds Fannie Mae and its assets in conservatorship, affirmatively consented to the extinguishment of the interest in the Property. See Berezovsky, 869 F.3d at 929 (rejecting that Freddie Mac and the FHFA could “implicitly consent[]” to the foreclosure of a property interest). In fact, the evidence 1 Under Nevada’s appellate rules, unpublished dispositions may “establish mandatory precedent … in a related case ….” Nev. R. App. P. 36(c)(2). The Nevada Supreme Court also permits citation to its unpublished dispositions for “persuasive value, if any ….” Id. at 36(c)(3). The unpublished Nevada Supreme Court dispositions we cite herein grapple with issues in all important respects identical to those before us, and therefore possess especially persuasive value. 3 runs contrary: “FHFA confirms that it has not consented, and will not consent in the future, to the foreclosure or other extinguishment of any Fannie Mae or Freddie Mac lien or other property interest in connection with HOA foreclosures of super-priority liens.” Clear precedent likewise forecloses Saticoy Bay’s remaining arguments that Fannie Mae failed to properly establish its property interest under Nevada law. See, e.g., Daisy Tr., 445 P.3d at 849 (“Nevada’s recording statutes did not require Freddie Mac to publicly record its ownership interest as a prerequisite for establishing that interest”); see also Berezovsky, 869 F.3d at 930–31 (“The Federal Foreclosure Bar’s declaration … supersede[s] any contrary law, including state law, that would allow foreclosure of Agency property without its consent.”). The Federal Foreclosure Bar accordingly applies, and the HOA foreclosure sale did not extinguish Fannie Mae’s interest in the Property.2 2. Saticoy Bay cannot seek refuge under the bona fide purchaser doctrine because it is not a bona fide purchaser—it had constructive notice of Fannie Mae’s interest in the property. See Shadow Wood HOA v. N.Y. Cmty. Bancorp., 366 P.3d 2 Saticoy Bay’s “conclusive statutory presumption” arguments that MERS—not Fannie Mae—is the beneficial owner of the deed also fail. Saticoy Bay was not party either to the deed of trust or its subsequent transfer to Fannie Mae, so it cannot invoke the presumption in NEV. REV. STAT. § 47.240(2). But § 47.240(2)’s presumption is inapplicable because Nevada law permits Fannie Mae to record its property interest as it did here. Daisy Tr., 445 P.3d at 849. And § 47.240(2) is similarly inapplicable because there’s no evidence Fannie Mae intentionally misled Saticoy Bay (or anyone) and falsified the deed. 4 1105, 1115 (Nev. 2016) (a purchaser is bona fide if it makes a purchase “without notice of facts which upon diligent inquiry would be indicated and from which notice would be imputed to him, if he failed to make such inquiry” (citation omitted)). We’ve already noted that Nevada law does not require Fannie Mae “to publicly record its ownership interest as a prerequisite for establishing [its property] interest.” Daisy Tr., 445 P.3d at 849; Berezovsky, 869 F.3d at 932–33. And the 2007 Deed of Trust contains a footer on every page that says: “NEVADA – Single Family – Fannie Mae/Freddie Mac UNIFORM INSTRUMENT – MERS.” This indicator of Fannie Mae’s potential interest provides sufficient notice to later purchasers under Nevada law. See CitiMortgage, Inc. v. TRP Fund VI, LLC, 2019 WL 1245886 , at *1 (Nev. Mar. 14, 2019) (unpublished disposition).3 3. Saticoy Bay’s remaining argument that the district court improperly granted Fannie Mae equitable relief is beside the point and lacks merit. When a court determines that a deed of trust survives a foreclosure sale by virtue of the Federal Foreclosure Bar, it grants relief “by operation of law.” Collegium Fund LLC Series 7 v. Ditech Fin., LLC, 2020 WL 3469189 , at *1 n.2 (Nev. June 24, 2020) (unpublished disposition). That is precisely what happened here. AFFIRMED. 3 Because Saticoy Bay is not a bona fide purchaser, we need not consider whether NEV. REV. STAT. § 111.325 is preempted by the Federal Foreclosure Bar. 5

2020-12-03 22:00:35.506876+00

https://cdn.ca9.uscourts.gov/datastore/memoranda/2020/12/03/19-16384.pdf

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 3 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT YOCHA DEHE WINTUN NATION; et al., No. 19-16384 Plaintiffs-Appellants, D.C. No. 2:19-cv-00025-JAM-AC v. GAVIN NEWSOM, Governor of the State MEMORANDUM* of California; STATE OF CALIFORNIA, Defendants-Appellees. Appeal from the United States District Court for the Eastern District of California John A. Mendez, District Judge, Presiding Argued and Submitted November 20, 2020 San Francisco, California Before: NGUYEN, HURWITZ, and BRESS, Circuit Judges. The Indian Gaming Regulatory Act (“IGRA”), 25 U.S.C. §§ 2701 et seq., allows tribes to offer gaming in Indian country. Class III gaming, consisting of the types of “high-stakes games usually associated with Nevada-style gambling,” is permitted pursuant to a compact with the state encompassing the tribe’s territory. In re Indian Gaming Related Cases, 331 F.3d 1094 , 1097 (9th Cir. 2003); see 25 U.S.C. * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. § 2710(d). “[G]eneral principles of contract interpretation” apply to compacts. Idaho v. Shoshone-Bannock Tribes, 465 F.3d 1095 , 1098 (9th Cir. 2006); see also Texas v. New Mexico, 482 U.S. 124 , 128 (1987) (stating that a compact, like a contract, is “construed and applied in accordance with its terms”). This action by the Yocha Dehe Wintun Nation, the Viejas Band of Kumeyaay Indians, and the Sycuan Band of the Kumeyaay Nation (collectively, the “Tribes”) against the State of California alleges breaches of gaming compacts that purportedly grant the Tribes exclusive rights to operate banked card games.1 The Tribes allege the State has violated the compacts, its duty of good faith and fair dealing, and article IV, section 19(f) of the California Constitution (“Proposition 1A”), by failing to prevent non-Indian cardrooms from also conducting banked card games. The Tribes seek an injunction directing the State to enforce its laws and specific performance of the purported compact obligations. The district court granted the State’s motion to dismiss for failure to state a claim. Reviewing de novo, see Nayab v. Capital One Bank (USA), N.A., 942 F.3d 480 , 487 (9th Cir. 2019), we affirm. The State contends that the compacts merely recognize, but do not grant, the 1 “A card game is ‘banked’ if a gaming operator participates in the game . . . and acts as a house bank, paying all winners and retaining all other players’ losses.” Rumsey Indian Rancheria of Wintun Indians v. Wilson, 64 F.3d 1250 , 1255 n.2 (9th Cir. 1994), amended on denial of reh’g, 99 F.3d 321 (9th Cir. 1996). IGRA classifies banked card games as Class III gaming. See 25 U.S.C. § 2703 (7)(B)(i), (8). 2 Tribes’ exclusive rights under Proposition 1A to operate legal banked card games. See Rincon Band of Luiseno Mission Indians of Rincon Rsrv. v. Schwarzenegger, 602 F.3d 1019 , 1037 (9th Cir. 2010) (noting that tribal gaming exclusivity is a “matter of state constitutional law”). The Tribes argue that through the compacts’ preambles and purposes and objectives clauses, the State promised to enforce the Tribes’ exclusivity. We need not today decide whether exclusivity is a compact term. Even assuming that it is, the remedy the Tribes seek, an injunction requiring the State to enforce its laws against non-Indian cardrooms that allegedly operate illegal banked card games, cannot be granted. Nothing in the compacts purports to impose on the State the obligation to enforce its laws against non-Indian cardrooms, and nothing in the contracts suggests the Tribes may seek that remedy based on an alleged breach of any exclusivity guarantee. We would also be reluctant to read such an extraordinary remedy into the compacts because California law does not permit the State to “contract away its right to exercise the police power.” Summit Media LLC v. City of Los Angeles, 211 Cal. App. 4th 921 , 934 (2012); see also Cotta v. City & County of San Francisco, 157 Cal. App. 4th 1550 , 1564 (2007) (holding that a city may not be “put to the choice between” exercising its police power and exposing itself to a breach of contract). Nothing in the compacts suggests we can order the State to turn its law enforcement priorities towards certain lawbreakers, as individual 3 law enforcement decisions are “particularly ill-suited to judicial review.” Wayte v. United States, 470 U.S. 598 , 607 (1985). AFFIRMED.2 2 The State’s request for judicial notice is denied. 4

2020-12-03 22:00:35.774589+00

https://cdn.ca9.uscourts.gov/datastore/memoranda/2020/12/03/19-10344.pdf

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 3 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 19-10344 Plaintiff-Appellee, D.C. No. 2:19-cr-00328-DWL-1 v. MEMORANDUM* FRANCISCO LOPEZ-REYES, a.k.a. Francisco G. Lopez, Defendant-Appellant. Appeal from the United States District Court for the District of Arizona Dominic Lanza, District Judge, Presiding Argued and Submitted November 17, 2020 Phoenix, Arizona Before: TALLMAN, BYBEE, and BADE, Circuit Judges. Francisco Lopez-Reyes appeals his conviction following his conditional guilty plea to one count of illegal reentry in violation of 8 U.S.C. § 1326 (a). Specifically, Lopez-Reyes collaterally challenges, under § 1326(d), the deportation order that served as a predicate for his illegal reentry conviction. He argues that the order was fundamentally unfair because he was not properly advised of his * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Fifth Amendment right to counsel and therefore did not validly waive that right, which deprived him of the opportunity to apply for a U visa based on his status as the victim of a stabbing that occurred when he was a teenager. Because the parties are familiar with the facts, we do not recite them except as necessary to explain our decision. We have jurisdiction under 28 U.S.C. § 1291 , and we affirm. We review de novo a district court’s denial of a motion to dismiss an indictment under § 1326(d). United States v. Cisneros-Rodriguez, 813 F.3d 748 , 755 (9th Cir. 2015). Factual findings are reviewed for clear error. Id. In order to prove that his 2011 administrative removal proceedings were “fundamentally unfair,” Lopez-Reyes must show that: (1) his “due process rights were violated by defects in [his] underlying deportation proceeding,” and (2) “[he] suffered prejudice as a result of the defects.” Id. at 756 (citation omitted). In evaluating his claim, the district court elected not to decide whether Lopez-Reyes’s due process rights were violated, instead finding that Lopez-Reyes could not show that his removal was fundamentally unfair because he failed to demonstrate prejudice resulting from the alleged violation. We agree. Although Lopez-Reyes “does not have to show that he actually would have been granted relief” from removal to establish prejudice, he still must “show that he had a ‘plausible’ ground for relief from deportation.” United States v. Ubaldo- Figueroa, 364 F.3d 1042 , 1050 (9th Cir. 2004) (quoting United States v. Arrieta, 2  224 F.3d 1076 , 1079 (9th Cir. 2000)). Plausibility requires a showing “that relief was more than ‘possible,’” but not “that it was ‘probable.’” Cisneros-Rodriguez, 813 F.3d at 761. Here, the district court correctly found that Lopez-Reyes did not show that it was plausible that he would have received a U visa. A U visa application would have required a certification from the Phoenix Police Department (“PPD”) attesting that Lopez-Reyes was a victim of a qualifying crime, possessed information about the crime, and “[had] been, is being, or [was] likely to be helpful to an investigation or prosecution of” the crime. 8 C.F.R. § 214.14 (c)(2)(i). Additionally, because of his prior state-law convictions for armed robbery and attempted armed robbery Lopez-Reyes would have had to obtain a discretionary waiver of inadmissibility from U.S. Citizenship and Immigration Services (“USCIS”).1 The district court weighed the evidence, including the police reports documenting the investigation into the stabbing of Lopez-Reyes and several others in 2007, and two expert declarations submitted on behalf of Lopez-Reyes opining that he would have received the necessary certification and waiver of inadmissibility. The district court found that Lopez-Reyes was the only witness in 1 If USCIS determined that Lopez-Reyes’s prior convictions were for “violent or dangerous crimes,” it would “only exercise favorable discretion” to grant a waiver of inadmissibility in the presence of “extraordinary circumstances.” 8 C.F.R. § 212.17 (b)(2). 3 the stabbing investigation “who was singled out by the police as having lied to them,” and that “although Lopez-Reyes initially suggested he was willing to assist in the prosecution, the case fell apart after he and the other witnesses refused to return the PPD detective’s messages.” Given these facts, and because of the “seriousness of his criminal history,” the court properly concluded that Lopez- Reyes would have presented as a “particularly poor candidate” for a U visa, notwithstanding the views expressed by his expert witnesses. In the words of the district court, Lopez-Reyes was “a three-time armed robber whose half-hearted efforts to cooperate with the police concerning an earlier crime were marred by lies and a failure to follow through when it counted.” The district court did not clearly err in its findings. As a result, we conclude that Lopez-Reyes has not shown that it is plausible he would have obtained a discretionary U visa if he had been advised by counsel during his 2011 administrative removal proceedings. Accordingly, the district court did not err in denying Lopez-Reyes’s motion to dismiss the indictment under § 1326(d). AFFIRMED. 4

2020-12-03 22:00:35.852278+00

https://cdn.ca9.uscourts.gov/datastore/memoranda/2020/12/03/19-55920.pdf

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 3 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT SCOTT STONER, No. 19-55920 Plaintiff-Appellee, D.C. No. 5:16-cv-01045-JAK-PLA v. DOES, 1 - 10, inclusive; MICHAEL MEMORANDUM* HEUER, Deputy, Defendants, and COUNTY OF RIVERSIDE; RICHARD FRANSIK, Deputy, Defendants-Appellants. Appeal from the United States District Court for the Central District of California John A. Kronstadt, District Judge, Presiding Argued and Submitted August 11, 2020 Pasadena, California Before: WARDLAW and VANDYKE, Circuit Judges, and HILLMAN,** District Judge. * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Timothy Hillman, United States District Judge for the District of Massachusetts, sitting by designation.  Memorandum joined by Judge VANDYKE and Judge HILLMAN Dissent by Judge WARDLAW Defendants County of Riverside and Deputy Fransik appeal the district court’s grant of Plaintiff Stoner’s Rule 59(e) motion to amend the judgment reached by the jury. We have jurisdiction under 28 U.S.C. § 1291 and review the grant of a Rule 59(e) motion for abuse of discretion. Sch. Dist. No. 1J, Multnomah Cty. v. ACandS, Inc., 5 F.3d 1255 , 1262 (9th Cir. 1993). The district court may grant Rule 59(e) motions where it “(1) is presented with newly discovered evidence, (2) committed clear error or the initial decision was manifestly unjust, or (3) if there is an intervening change in controlling law.” Id. at 1263 . Based on the jury instructions and jury verdict form, we hold that the district court abused its discretion in amending the verdict and reverse. Stoner filed a claim under 42 U.S.C. § 1983 alleging Defendants used excessive force to arrest him in violation of the Fourth Amendment. The case proceeded to a jury trial and the parties’ attorneys agreed to the jury instructions. Jury Instruction 26 listed eight factors for the jury to consider “[i]n determining whether the officer used excessive force.” Question 1 on the jury verdict form asked whether Deputy Fransik “use[d] excessive or unreasonable force against Scott Stoner” and the jurors checked “yes.” But that was only the initial step in the analysis. The jury verdict form then asked in Question 2 whether Deputy Fransik’s actions were “the moving force in causing harm to Scott Stoner,” and the jurors 2 checked “no.” According to the form, the jurors did not have to answer further questions after answering Question 2 in the negative. The district court initially entered the verdict as a defense judgment. The district court then granted Stoner’s Rule 59(e) motion to amend the judgment to a Plaintiff’s verdict, concluding that “the jury found that Corporal Fransik violated Plaintiff’s Fourth Amendment rights” because in answering “yes” to Question 1, the jurors found “that Corporal Fransik had not acted in an ‘objectively reasonable’ manner.” But the former does not follow from the latter, especially in light of Jury Instruction 27, which stated that “to establish that the acts of [the officer] deprived the plaintiff of particular rights … the plaintiff must prove … that the [officer’s] acts were ... the moving force that caused the ultimate injury.” (emphasis added). This instruction was explicit and consistent with precedent: both factual and proximate causation are required to find a constitutional violation. Harper v. City of Los Angeles, 533 F.3d 1010 , 1026 (9th Cir. 2008); see also Preschooler II v. Clark Cty. Sch. Bd. of Trs., 479 F.3d 1175 , 1183 (9th Cir. 2007). Under the jury instructions that both parties agreed to, there could be no constitutional violation unless under Question 2 the jury found Deputy Fransik’s unreasonable force was the proximate cause of Stoner’s injuries. We presume jurors follow jury instructions, see Weeks v. Angelone, 528 U.S. 225 , 234 (2000), and the jurors concluded through Question 2 on the jury verdict 3 form that Deputy Fransik was not the “moving force,” or proximate cause, of Stoner’s injuries. The jurors thus necessarily did not find a constitutional violation.1 The district court’s conversion of the jury’s defense verdict grant to a Plaintiff’s verdict was clearly erroneous and an abuse of discretion. REVERSED.2 1 This case involves a finding of excessive force coupled with a finding that the force used was not the proximate cause of the plaintiff’s injury, and thus not a constitutional violation. The cases cited by the Plaintiff and the district court that address jury findings of a confirmed constitutional violation, but with no compensable injury, are thus inapposite. See Guy v. City of San Diego, 608 F.3d 582 , 585 (9th Cir. 2010); George v. City of Long Beach, 973 F.2d 706 , 708 (9th Cir. 1992); Romberg v. Nichols, 953 F.2d 1152 , 1160–61 (9th Cir. 1992), opinion amended and superseded, 970 F.2d 512 (9th Cir. 1992), cert. granted, judgment vacated, 506 U.S. 1075 (1993); Floyd v. Laws, 929 F.2d 1390 , 1402–03 (9th Cir. 1991). 2 Because we find no constitutional violation and reverse, we do not reach Defendants’ second argument that Stoner’s § 1983 claim violated the Heck bar. 4  FILED Stoner v. County of Riverside, No. 19-55920 DEC 3 2020 MOLLY C. DWYER, CLERK WARDLAW, Circuit Judge, dissenting: U.S. COURT OF APPEALS I respectfully dissent. I am not “convinced firmly that the reviewed decision lies beyond the pale of reasonable justification under the circumstances.” Estate of Diaz v. City of Anaheim, 840 F.3d 592 , 601 (9th Cir. 2016) (quoting Harman v. Apfel, 211 F.3d 1172 , 1175 (9th Cir. 2000)). Here, the jury was not tasked with returning a general verdict in favor of one party or the other; it was asked to make three factual findings in response to questions on a special verdict form. The jury’s answers to the first two questions created an ambiguity as to whether it found a constitutional violation—in other words, whether the court should enter a verdict in favor of the plaintiff or the defense. When there is ambiguity in a jury’s answers on a special verdict form, “it is the duty of the courts to attempt to harmonize the answers,” including “by exegesis if necessary.” Gallick v. Balt. & Ohio R.R., Co., 372 U.S. 108 , 119 (1963). Here, the district court concluded that the jury’s answers could be “harmonized” because “under the instruction to which both sides agreed, the jury could conclude that, although Corporal Fransik used excessive force when he released Whiskey and/or when he did not remove him sooner from Plaintiff, those actions were not the ‘moving force’ behind Plaintiff’s severe and atypical injuries.” The district court concluded that, by answering “yes” to Question 1, “the jury 1 found that Corporal Fransik violated Plaintiff’s Fourth Amendment rights.” “[T]hat the jury answered ‘no’ to Question 2 . . . does not mean that it found no constitutional violation. It instead shows that the jury made a finding that precludes Plaintiff from recovering compensatory damages for the injuries he sustained.” That is, though there was excessive use of force in violation of the Fourth Amendment, as the jury was instructed in Jury Instruction No. 26, that force was not “the moving force that caused the ultimate injury,” as instructed by Jury Instruction No. 27. This was a reasonable conclusion in light of the two instructions, read together. Instruction No. 26 described excessive force in violation of the Fourth Amendment. Verdict Question 1 asked whether Fransik used excessive force, and the jury responded affirmatively, finding the constitutional violation. Instruction No. 27 introduced the requirement of causation, and in verdict Question 2 the jury found Fransik’s use of unconstitutional force did not cause Stoner’s “ultimate injury.” Ample evidence in this particular record supported the jury’s finding, as after the dog seized Stoner, he fought with the dog, creating the atypical injuries Stoner ultimately suffered. This interpretation of the verdict does not “lie[] beyond the pale of reasonable justification.’” Estate of Diaz, 840 F.3d at 601. Because the majority reverses on the jury verdict issue, it does not reach Fransik’s claim that Stoner’s suit against him was Heck-barred. The district court 2 did not err by denying Fransik’s motion for judgment as a matter of law on Heck grounds. Stoner was convicted for “knowingly resist[ing], by the use of force or violence,” Deputy Heuer’s undisputedly lawful attempt to arrest him. Cal. Penal Code § 69 (West). Whether or not Corporal Fransik used illegal excessive force when he released the K-9 is irrelevant to the “lawful[ness]” of Deputy Heuer’s actions. People v. Smith, 57 Cal. 4th 232 , 241 (2013). Therefore, “a judgment in favor of” Stoner against Fransik does not “necessarily imply the invalidity of [Stoner’s] conviction or sentence.” 512 U.S. 477 , 487 (1994). For the above reasons, I would affirm the district court’s judgment in full. 3

2020-12-03 22:00:35.998706+00

https://cdn.ca9.uscourts.gov/datastore/memoranda/2020/12/03/19-60068.pdf

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 3 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT In re: JOSEPH L. WILCZAK; JUDITH A. No. 19-60068 WILCZAK, BAP No. 19-1038 Debtors, ------------------------------ MEMORANDUM* JOSEPH L. WILCZAK; JUDITH A. WILCZAK, Appellants, v. SELECT PORTFOLIO SERVICING, INC.; THE BANK OF NEW YORK MELLON, as trustee, on behalf of the holders of the Alternative Loan Trust 2007-OA10, Mortgage Pass-Through Certificates Series 2007-OA10, Appellees. Appeal from the Ninth Circuit Bankruptcy Appellate Panel Faris, Brand, and Gan, Bankruptcy Judges, Presiding Submitted November 30, 2020** * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision Before: GOODWIN, SCHROEDER, and SILVERMAN, Circuit Judges. Joseph L. and Judith A. Wilczak, Chapter 11 debtors, appeal pro se the Bankruptcy Appellate Panel’s judgment affirming the bankruptcy court’s order overruling the Wilczaks’ objection to the claim of creditors Select Portfolio Servicing, Inc., and the Bank of New York Mellon. We have jurisdiction under 28 U.S.C. § 158 (d). We review for clear error the bankruptcy court’s findings of fact. Arrow Elecs., Inc. v. Justus (In re Kaypro), 218 F.3d 1070 , 1073 (9th Cir. 2000). We affirm. The bankruptcy court did not clearly err in finding that the signatures on the loan documents were valid. First, the record, including the Wilczaks’ admissions at trial, supports the bankruptcy court’s finding that the Wilczaks signed the loan documents. Second, “we give singular deference to a trial court’s judgments about the credibility of witnesses,” including the bankruptcy court’s determinations that notary Cindy North’s testimony was credible and the Wilczaks’ testimony was implausible. Cooper v. Harris, 137 S. Ct. 1455 , 1474 (2017). Finally, the Wilczaks’ contention that the bankruptcy court erred by noting irregularities in the signatures without finding them forged lacks merit. To the extent the Wilczaks contend that their own counsel engaged in without oral argument. See Fed. R. App. P. 34(a)(2). 2 misconduct, the record discloses no misconduct affecting fundamental fairness. See Bird v. Glacier Elec. Coop., Inc., 255 F.3d 1136 , 1145, 1148 (9th Cir. 2001) (limiting review in civil cases to whether attorney misconduct affected fundamental fairness where the error is alleged for the first time on appeal). To the extent the Wilczaks raise the issue on appeal, the bankruptcy court did not abuse its discretion by rejecting expert testimony by Nancy Cole because Cole’s qualifications were out of date and her testimony would not have been helpful or reliable. See Fed. R. Evid. 702(a) (qualified witnesses may testify as experts if their “scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue”); Samuels v. Holland Am. Line-USA Inc., 656 F.3d 948 , 952 (9th Cir. 2011) (“a trial court has broad discretion in assessing the relevance and reliability of expert testimony” (citation and internal quotation marks omitted)). The Wilczaks’ contention that the issue decided at trial was different than the issue raised in their objection to the proof of claim lacks merit. AFFIRMED. 3

2020-12-03 22:00:36.074592+00

https://cdn.ca9.uscourts.gov/datastore/memoranda/2020/12/03/19-55816.pdf

FILED NOT FOR PUBLICATION DEC 3 2020 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT GRACE BAEK; RICHARD BAEK; No. 19-55816 BAEK 153, LLC; PACIFIC COMMERCIAL GROUP, LLC, D.C. No. 8:18-cv-00143-JVS Appellants, MEMORANDUM* v. JOHN OLAF HALVORSON; WENETA M.A. KOSMALA, Chapter 7 Trustee; DAN HALVORSON; JERRY ANN RANDALL, Appellees. Appeal from the United States District Court for the Central District of California James V. Selna, District Judge, Presiding Submitted November 16, 2020** Pasadena, California Before: FERNANDEZ, PAEZ, and OWENS, Circuit Judges. * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).  Grace Baek, Richard Baek, Baek 153, LLC, and Pacific Commercial Group, LLC (collectively, “the Baeks”) appeal the district court’s order affirming the bankruptcy court’s order denying the Baeks’ motion to recuse the bankruptcy judge in the main bankruptcy proceeding. We dismiss for lack of jurisdiction. We lack jurisdiction to review the denial of the Baeks’ motion to recuse the bankruptcy judge. Denial of a motion to recuse is not a final order. See Stewart Enters., Inc. v. Horton (In re Horton), 621 F.2d 968 , 970 (9th Cir. 1980); United States v. Washington, 573 F.2d 1121 , 1122 (9th Cir. 1978). The pragmatic approach to finality in bankruptcy appeals under 28 U.S.C. § 158 (d)(1) does not change this conclusion. See Eden Place, LLC v. Perl (In re Perl), 811 F.3d 1120 , 1126–27 (9th Cir. 2016); SS Farms, LLC v. Sharp (In re SK Foods, L.P.), 676 F.3d 798 , 802 (9th Cir. 2012). A bankruptcy court order is final under § 158(d)(1) when it “1) resolves and seriously affects substantive rights and 2) finally determines the discrete issue to which it is addressed.” Gugliuzza v. FTC (In re Gugliuzza), 852 F.3d 884 , 894 (9th Cir. 2017) (internal quotation marks omitted). The order denying the Baeks’ motion to recuse is not final; it merely preserves the status quo. The bankruptcy judge’s actions “may be reviewed throughout the bankruptcy proceedings” and may be revisited later should additional grounds for recusal become apparent. SK Foods, 676 F.3d at 802; see also Liteky v. United States, 510 2 U.S. 540 , 543, 114 S. Ct. 1147 , 1151, 127 L. Ed. 2d 474 (1994).1 DISMISSED. 1 The fact that the Baeks chose to file their recusal motion in the main bankruptcy proceeding rather than in the bankruptcy adversary proceedings where the alleged bases for recusal arose does not affect our conclusion. 3

2020-12-03 22:00:36.139717+00

https://cdn.ca9.uscourts.gov/datastore/memoranda/2020/12/03/19-35760.pdf

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 3 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT DEANGELO A. GREEN, No. 19-35760 Plaintiff-Appellant, D.C. No. 3:17-cv-05898-RBL v. MARGARET GILBERT, et al., MEMORANDUM* Defendants-Appellees. Appeal from the United States District Court for the Western District of Washington Ronald B. Leighton, District Judge, Presiding Submitted December 2, 2020** Before: O’SCANNLAIN, TROTT, and N.R. SMITH, Circuit Judges. DeAngelo Green, a Washington state prisoner, appeals from the district court’s grant of summary judgment in favor of prison officials at the Stafford Creek Corrections Center in Aberdeen, Washington. The facts are known to the parties, so we repeat them only as necessary to explain our decision. * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).  I Summary judgment was proper on Green’s Eighth Amendment claim. Prison officials must take reasonable measures to ensure inmate safety. Farmer v. Brennan, 511 U.S. 825 , 832 (1994). “It is not, however, every injury suffered by one prisoner at the hands of another that translates into constitutional liability for prison officials responsible for the victim’s safety.” Id. at 834 . Instead, a prison official can only be liable for deliberate indifference to a “substantial risk of serious harm,” id., when the official “knows of and disregards” that risk. Id. at 837 . Here, the record shows that prison officials had no knowledge of any risk to Green before the incident on August 1, 2015. And no facts in the record suggest that Green expressed to Gleason any more than a general fear of danger before the incident on November 26, 2015. But to be liable, the official “must have more than a mere suspicion that an attack will occur.” Berg v. Kincheloe, 794 F.2d 457 , 459 (9th Cir. 1986). II Summary judgment was proper on Green’s Due Process claim. We first decide “whether there exists a liberty or property interest of which a person has been deprived.” Swarthout v. Cooke, 562 U.S. 216 , 220 (2011). Green’s general claims about prison discipline and housing decisions do not implicate cognizable liberty interests under the Fourteenth Amendment. Ramirez v. Galaza, 334 F.3d 2 850, 860 (9th Cir. 2003) (“[I]nmates lack a separate constitutional entitlement to a specific prison grievance procedure.”); Anderson v. County of Kern, 45 F.3d 1310 , 1315 (9th Cir. 1995), as amended, 75 F.3d 448 (9th Cir. 1995) (“[T]here is no liberty interest in remaining in the general population”). III Summary judgment was proper on Green’s Equal Protection claim. Green must show that “the defendants acted with an intent or purpose to discriminate against the plaintiff based upon membership in a protected class.” Furnace v. Sullivan, 705 F.3d 1021 , 1030 (9th Cir. 2013) (quoting Barren v. Harrington, 152 F.3d 1193 , 1194 (9th Cir. 1998)). No facts in the record support such a showing.1 IV Because Defendants-Appellees are entitled to summary judgment on all the underlying claims, the Court declines to reach whether they enjoy qualified immunity. Saucier v. Katz, 533 U.S. 194 , 201 (2001) (“If no constitutional right would have been violated were the allegations established, there is no necessity for further inquiries concerning qualified immunity.”).2 AFFIRMED. 1 Since Green failed to advance any specific arguments implicating Correctional Officers Boling, Estes, and Kilwien and Sergeant Rothwell, his claims against these four Defendants-Appellees are “deemed abandoned.” Leer v. Murphy, 844 F.2d 628 , 634 (9th Cir. 1988). 2 Appellees’ three motions to strike, filed with this court on February 19, 2020, April 2, 2020, and July 21, 2020 are DENIED as moot. Appellant’s motion to add documents to the record, filed with this court on August 31, 2020, is also DENIED as moot. 3

2020-12-03 22:00:36.200412+00

https://cdn.ca9.uscourts.gov/datastore/memoranda/2020/12/03/19-17448.pdf

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 3 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT CITIZENS FOR FREE SPEECH, LLC; No. 19-17448 MICHAEL SHAW, D.C. No. Plaintiffs-Appellants, 4:19-cv-01026-SBA v. MEMORANDUM* COUNTY OF ALAMEDA, Defendant-Appellee. Appeal from the United States District Court for the Northern District of California Saundra B. Armstrong, District Judge, Presiding Argued and Submitted November 16, 2020 San Francisco, California Before: NGUYEN, HURWITZ, and BRESS, Circuit Judges. This is the third suit by Citizens for Free Speech and Michael Shaw (collectively, “Plaintiffs”) challenging the County of Alameda’s efforts to abate billboards that Plaintiffs erected on Shaw’s property in violation of Title 17 of the County’s General Ordinance Code (“Zoning Ordinance”). The district court granted * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. the County’s motion to dismiss Plaintiffs’ First Amendment free speech and Fourteenth Amendment due process claims without leave to amend and declined to exercise supplemental jurisdiction over Plaintiffs’ state law claims. We have jurisdiction under 28 U.S.C. § 1291 and affirm. 1. The First Amendment claims are barred by claim preclusion. Identical claims were litigated in Citizens for Free Speech, LLC v. County of Alameda (“Citizens I”), No. 3:14-cv-02513-CRB (N.D. Cal. 2017), which resulted in a final judgment on the merits. See Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg’l Plan. Agency, 322 F.3d 1064 , 1077 (9th Cir. 2003). Plaintiffs’ argument that preclusion does not apply because the County had not yet initiated nuisance abatement procedures under the Zoning Ordinance when Citizens I was decided is unavailing. The nuisance abatement procedures are predicated on the same Zoning Ordinance provisions challenged in the prior action. Plaintiffs’ claims therefore “were raised or could have been raised in the prior action.” Owens v. Kaiser Found. Health Plan, Inc., 244 F.3d 708 , 713 (9th Cir. 2001) (cleaned up). 2. Plaintiffs failed to respond to the County’s contentions concerning the due process claims in the County’s motion to dismiss, thereby abandoning those claims. See Carvalho v. Equifax Info. Servs., LLC, 629 F.3d 876 , 888 (9th Cir. 2010). In any event, the Fourteenth Amendment due process claims fail on the merits. Plaintiffs have not identified “a denial of adequate procedural protections” 2 at the abatement hearing before the Board of Zoning Adjustments or the appeals hearing before the Board of Supervisors. Brewster v. Bd. of Educ. of Lynwood Unified Sch. Dist., 149 F.3d 971 , 982 (9th Cir. 1998). And, because Plaintiffs do not dispute that the signs are illegal under the Zoning Ordinance, it is also unclear how additional hearing procedures would have mitigated “the risk of an erroneous deprivation.” Mathews v. Eldridge, 424 U.S. 319 , 335 (1976). Plaintiffs’ Federal Rule of Civil Procedure 13(a) due process theory—which would require the County to pursue nuisance abatement proceedings in federal court once a constitutional challenge is raised—is unsupported by any authority and was impliedly rejected by this Court in Citizens for Free Speech, LLC v. County of Alameda (“Citizens II”), 953 F.3d 655 , 657-58 (9th Cir. 2020), which affirmed the dismissal of Plaintiffs’ second suit against the County under Younger v. Harris, 401 U.S. 37 (1971), because it improperly sought to enjoin ongoing state administrative proceedings. 3. Because the district court dismissed all federal claims, it did not abuse its discretion in declining to assert supplemental jurisdiction. See 28 U.S.C. § 1367 (c)(3); Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343 , 350 n.7 (1988). 4. The district court did not abuse its discretion in denying leave to amend given the legal deficiencies in Plaintiffs’ federal claims. See Bell v. City of Kellogg, 922 F.2d 1418 , 1425 (9th Cir. 1991). 3 AFFIRMED.1 1 The County’s motion to take judicial notice, Dkt. 14, is GRANTED. 4

2020-11-20 19:13:45.257609+00

ESTATE OF DARWIN A. MILLER, DECEASED, VIRGINIA P. MILLER, TESTAMENTARY EXECUTRIX AND SURVIVING SPOUSE, AND VIRGINIA P. MILLER, Petitioners v. COMMISSIONER OF INTERNAL REVENUE, Respondent Miller v. Commissioner Docket No. 5875-88 United States Tax Court T.C. Memo 1991-515; 1991 Tax Ct. Memo LEXIS 564; 62 T.C.M. 997; T.C.M. (RIA) 91515; October 9, 1991, Filed 1991 Tax Ct. Memo LEXIS 564">*564 Decision will be entered under Rule 155. Michael E. Guarisco, David A. Aymond, and Richard K. Leefe, for the petitioners. Stevens E. Moore, for the respondent. RUWE, Judge. RUWE MEMORANDUM FINDINGS OF FACT AND OPINION Respondent determined the following deficiencies and additions to tax in petitioners' Federal income taxes: Addition to Tax YearDeficiencySec. 6659 1 1981$ 820,422.00$ 246,126.60 1982154,623.0046,386.90 1983182,966.0042,854.40 198469,257.5015,014.70 1985107,920.7026,603.16 After concessions by the parties, the issues for decision are: (1) Whether the burden of proof on certain issues is on respondent; (2) whether petitioners are entitled to a deduction for purported charitable contributions of animal trophies made to the1991 Tax Ct. Memo LEXIS 564">*565 State of Louisiana during the years in issue; and, if so, (3) what is the amount of the allowable deductions; (4) whether the charitable contribution deductions claimed by petitioners are limited to the fair market value of the animal trophies reduced by the amount of gain which would not have been long-term capital gain if the animal trophies had been sold at their fair market value; (5) whether petitioners can deduct expenses incurred in connection with hunting and mounting animal trophies that they purportedly donated to the State of Louisiana; (6) whether petitioners can deduct expenses associated with the care and maintenance of the animal trophies incurred after they purportedly donated the trophies to the State of Louisiana; (7) whether petitioners are liable for additions to tax for valuation overstatements under section 6659 for the taxable years 1981, 1983, and 1984; and (8) whether petitioners are entitled to deductions for the taxable years 1983, 1984, and 1985 for expenses incurred in connection with the operation of the Ram Head Hunting Lodge. FINDINGS OF FACT Some of the facts have been stipulated and are so found. The first and second stipulation of facts and the1991 Tax Ct. Memo LEXIS 564">*566 attached exhibits are incorporated herein by this reference. Petitioners Darwin A. Miller and Virginia P. Miller were husband and wife and resided in Houma, Louisiana, at the time of filing their petition in this case. On November 26, 1989, Darwin A. Miller died. On June 1, 1990, this Court ordered that the Estate of Darwin A. Miller be substituted as a party petitioner for the deceased Darwin A. Miller. All references to petitioner in the singular shall hereinafter refer solely to Darwin A. Miller. For the taxable years 1981 through 1985, petitioners timely filed their joint income tax returns. During the years in issue, petitioners claimed deductions for "noncash" charitable contributions which were identified as "museum donations" on Schedule A of these returns. Petitioners did not designate the recipient of the "noncash" contributions on their 1981 and 1982 tax returns. On their 1983, 1984, and 1985 tax returns, petitioners stated that the State of Louisiana received the "noncash" contributions. 2 Petitioners also claimed deductions for certain "cash" contributions for the taxable years 1981 through 1985. On their 1981, 1982, and 1983 tax returns, petitioners did not1991 Tax Ct. Memo LEXIS 564">*567 indicate the nature of these "cash" contributions. On their 1984 and 1985 tax returns, petitioners identified the "cash" contributions as "Hunts and Taxidermy," "From K-1 Entity," and "Misc. Contributions." Respondent disallowed all of the "noncash" contributions claimed on petitioners' 1981 through 19851991 Tax Ct. Memo LEXIS 564">*568 income tax returns. Respondent disallowed all of the deductions claimed as "cash" contributions, except those items identified as "Misc. Contributions," on petitioners' 1981 through 1985 tax returns. 3 The following table reflects the "cash" and "noncash" contributions that petitioners reported on their 1981 through 1985 tax returns: Petitioners' Reported Contributions YearCashNon CashTotal 1981$ 301,498$ 1,229,650$ 1,531,148 1982255,41654,050309,466 1983151,146134,550285,696 1984138,82560,300* 199,125 198567,23344,575 111,808 Totals$ 914,118$ 1,523,125 $ 2,437,243 1991 Tax Ct. Memo LEXIS 564">*569 Donation of the Animal Trophies Petitioner has hunted and trapped all his life. In the 1970s, petitioner began game and sport hunting. Petitioner has hunted throughout the world including Africa, Russia, Mongolia, Iran, Canada, Australia, New Zealand, Alaska, and South America. Sometime during the 1970s, petitioner began thinking about establishing a wildlife museum. Petitioner wanted to place full-body trophies of animals that he shot on his hunting trips in this museum. Petitioner felt that a wildlife museum would educate and benefit the children of Louisiana. Petitioner decided that the way to accomplish his goal would be to hunt the animals, have them mounted, and then hold them for the State of Louisiana (the State) until the State could build a facility to house the trophies. In 1978, petitioner arranged a meeting with the Governor of Louisiana, Edwin W. Edwards (Governor Edwards). 4 Prior to this meeting, petitioner had never met Governor Edwards. During this meeting, petitioner explained his idea of a wildlife museum to Governor Edwards. Governor Edwards asked petitioner if he could help. Petitioner replied that an official designation by the Governor would1991 Tax Ct. Memo LEXIS 564">*570 help him gain access to hunting areas that were not otherwise accessible. Petitioner could use this access to hunt and collect animals which would later be placed in the wildlife museum. Accordingly, on June 29, 1978, Governor Edwards designated petitioner "The Official Big Game Hunter of Louisiana." Governor Edwards made the designation in order to assist petitioner in obtaining access to restricted hunting areas. The designation did not direct petitioner on when and where to hunt, nor did the State agree to pay petitioner's hunting expenses. Moreover, petitioner did not believe that he was under a legal obligation to donate the trophies he obtained with the help of the State's designation. In 1979, petitioner again met with Governor Edwards. During this meeting, petitioner took Governor Edwards into a building located behind petitioner's house. The building housed trophies1991 Tax Ct. Memo LEXIS 564">*571 collected by petitioner. Petitioner told Governor Edwards: "these are your animals." The collection impressed Governor Edwards, and he told petitioner that he would try to obtain funding for a State facility to house the trophies. In a letter dated January 9, 1980, Governor Edwards accepted the donation of "the animals listed." 5 During the years in issue, 1981 through 1985, petitioner continued to hunt, mount, and place animals in the building behind his house. The animals were never removed from the building. During the years 1981, 1982, and 1983, no State official accepted the donations which petitioner claims to have made in each of those respective years. When Governor Edwards resumed being Governor in March 1984, the State had no record of the donations which petitioner claimed to have made during these years. During the period between March 1981 and March 1984, petitioner unsuccessfully attempted to contact Louisiana Governor1991 Tax Ct. Memo LEXIS 564">*572 Treen about the animal trophies which he intended to give to the State. Sometime prior to February 16, 1984, respondent began examining petitioner's deductions for the alleged donations. Respondent requested an opinion from the Louisiana Attorney General's office on whether petitioner had made a valid donation of the trophies under Louisiana law. Respondent provided the Attorney General with a copy of the letter from Governor Edwards dated January 9, 1980. On July 6, 1984, the Attorney General informed respondent that, based on the information provided by respondent, petitioner had not made a valid donation to the State. Governor Edwards was reelected Governor of Louisiana and took office in March 1984. On December 29, 1984, petitioner and Governor Edwards executed a notarized document entitled "Donation Inter Vivos." In this document, petitioner states, under oath, that he donated various trophies during the years 1979 through 1983 to the State and that the State accepted the donations. The document also states that because the State was unable to store the trophies, it requested that petitioner "maintain the property until appropriate facilities were acquired and made available." 1991 Tax Ct. Memo LEXIS 564">*573 6 The document lists the trophies which petitioner claims he donated to the State during the years 1979, 1981, 1982, and 1983. The document does not state how the donations were made or who accepted the donations on behalf of the State during those respective years, nor does it give specific dates on which the purported donations were made. On December 30, 1985, the same parties executed a similar "Donation Inter Vivos" which covers the trophies petitioner allegedly donated to the State in 1985. 7 On March 26, 1991 Tax Ct. Memo LEXIS 564">*574 1985, petitioner petitioned the 32d Judicial District Court (State Court) for an order declaring that the trophies which were listed in the 1984 Donation Inter Vivos were legally donated to the State. In its answer, the State denied that petitioner donated these items to it. In January 1986, petitioner moved for summary judgment and, in April 1986, his motion was granted. In holding for petitioner, the State Court did not find that a valid donation had in fact occurred. Instead, the State Court ruled in favor of petitioner on the basis of the notarial act executed on December 29, 1984. In short, the State Court ruled that if the State previously acknowledged that it had accepted an otherwise valid donation from petitioner, it was in effect estopped from denying that the donation had occurred. On April 10, 1986, the State appealed the State Court's judgment. On August 20, 1986, petitioner's attorney sent a letter to Governor Edwards and informed him of the dispute over the trophies and requested his assistance. Governor Edwards intervened on petitioner's behalf. Subsequent to this intervention, petitioner agreed to donate the buildings behind his house to the State, and in1991 Tax Ct. Memo LEXIS 564">*575 exchange, the State agreed to drop its appeal. Ram Head Hunting Lodge On January 25, 1982, petitioner and Ron Hayes, a guide and outfitter in Alaska, purchased the Ram Head Hunting Lodge with the intent to operate it as a hunting lodge. However, they were never able to obtain the proper license necessary to operate the hunting lodge. Consequently, they sold the Ram Head Hunting Lodge in 1985. On Schedule C of their 1983 income tax return, petitioners deducted various expenses under section 162 and depreciated certain recovery property under section 168. On their 1984 and 1985 income tax returns, petitioners claimed depreciation deductions similar to the ones they took in 1983, and they deducted attorneys fees as business expenses. Aside from these expenses, petitioners deducted no other expenses incurred in connection with the Ram Head Hunting Lodge for the years 1984 and 1985. Petitioners reported no gross receipts or sales from the Ram Head Hunting Lodge for any of the years in issue. OPINION 1. Burden of Proof The first issue for decision is whether the burden of proving that valid donations of the trophies were made to the State is on respondent. Generally, 1991 Tax Ct. Memo LEXIS 564">*576 the burden of proof is on the taxpayer. Welch v. Helvering, 290 U.S. 111">290 U.S. 111, 78 L. Ed. 212">78 L. Ed. 212, 54 S. Ct. 8">54 S. Ct. 8 (1933); Rule 142(a). Respondent bears the burden of proof, however, with "respect of any new matter, increases in deficiency, and affirmative defenses, pleaded in the answer." Rule 142(a). A new theory that is presented to sustain a deficiency is treated as a new matter when it increases the amount of the original deficiency or requires the presentation of different evidence. Colonnade Condominium, Inc. v. Commissioner, 91 T.C. 793">91 T.C. 793, 91 T.C. 793">795 n.3 (1988); Achiro v. Commissioner, 77 T.C. 881">77 T.C. 881, 77 T.C. 881">890 (1981). A new theory which merely clarifies or develops the original determination is not a new matter in respect of which respondent bears the burden of proof. 77 T.C. 881">Achiro v. Commissioner, supra at 890; Estate of Jayne v. Commissioner, 61 T.C. 744">61 T.C. 744, 61 T.C. 744">748-749 (1974); McSpadden v. Commissioner, 50 T.C. 478">50 T.C. 478, 50 T.C. 478">492-493 (1968). In his notice of deficiency, respondent states: The form of making a gift * * * was met, however the substance of actually making a donation * * * has not been verified. There was1991 Tax Ct. Memo LEXIS 564">*577 no verification submitted to indicate that the State of Louisiana (donee) has any plans or funds allocated to maintain this museum or of ever taking actual possession of the mounted animals at any site other than your property. For all practical purposes the trophies given to the State of Louisiana have in substance been returned to you for your control and care. There has been no verification that the State of Louisiana accounts for * * * or evidences any responsibility for the exhibit. Petitioners argue that the notice of deficiency indicates that respondent did not question the validity of the donation, and that the only issue raised in the notice of deficiency was whether the State had returned the gifts to petitioner. Petitioners further argue that respondent's position that the original donation is not valid is a new theory, and that this new theory rises to the level of a new matter because it requires the presentation of new evidence. The notice of deficiency indicates that respondent is disallowing the charitable contribution deduction because the substance of the donations had not been verified. The notice of deficiency alerted petitioner that he would have to1991 Tax Ct. Memo LEXIS 564">*578 prove that he actually made the donations. Respondent did not assert a new deficiency, raise an affirmative defense, or take a position at trial which was inconsistent with his position in his notice of deficiency or which required the presentation of different evidence. Accordingly, the burden of proof remains with petitioners. 2. Donation of Trophies The second issue for decision is whether petitioners may claim the deduction for charitable contributions for the donation of trophies petitioner allegedly made to the State during the taxable years 1981 through 1985. Section 170(a) allows a deduction for charitable contributions to any entity described in section 170(c). The State of Louisiana is an entity described in section 170(c). A charitable contribution is made at the time that delivery is effected. Sec. 1.170A-1(b), Income Tax Regs. In determining the existence and timing of a charitable contribution, the analysis applied is the same analysis applied in determining the existence and timing of an inter vivos gift. DeJong v. Commissioner, 36 T.C. 896">36 T.C. 896, 36 T.C. 896">899 (1961), affd. 309 F.2d 373">309 F.2d 373 (9th Cir. 1962). This Court has consistently1991 Tax Ct. Memo LEXIS 564">*579 held that there are six essential elements to a bona fide inter vivos gift. These six elements are: (1) A donor competent to make a gift; (2) a donee capable of accepting a gift; (3) a clear and unmistakable intention on the part of the donor to absolutely and irrevocably divest himself of title, dominion, and control of the subject matter of the gift, in praesenti; (4) the irrevocable transfer of the present legal title and dominion and control of the entire gift to the donee, such that the donor can exercise no further act of dominion or control over it; (5) delivery by the donor to the donee of the subject matter of the gift or of the most effectual means of commanding dominion over it; and (6) acceptance of the gift by the donee. Guest v. Commissioner, 77 T.C. 9">77 T.C. 9, 77 T.C. 9">15-16 (1981); Weil v. Commissioner, 31 B.T.A. 899">31 B.T.A. 899, 31 B.T.A. 899">906 (1934), affd. 82 F.2d 561">82 F.2d 561 (5th Cir. 1936). A. 1981 Through 1984 For the taxable years 1981 through 1984, petitioner fails to establish the final three elements of an inter vivos gift. 8 Petitioner argues that he, acting as the State's agent, effectuated a valid donation by accepting delivery of the 1991 Tax Ct. Memo LEXIS 564">*580 gifts on the State's behalf. In effect, petitioner argues that he donated the trophies in his capacity as an individual and accepted the trophies in his capacity as the State's agent. The linchpin of petitioner's position is his purported agency relationship with the State. Under Louisiana law, a donee (in this case the State) may appoint an agent to accept gifts on its behalf. La. Civ. Code Ann. art. 1542 (West 1985). 9 This agency relationship may be created orally, but proof of the agency relationship must comport with the Louisiana statutes regarding conventional obligations. La. Civ. Code Ann. art. 2992 (West 1985); 10Savoie v. Estate of Rogers, 410 So. 2d 683">410 So. 2d 683, 410 So. 2d 683">688 (1982). The Louisiana statutes regarding conventional obligations require that petitioner prove the 1991 Tax Ct. Memo LEXIS 564">*581 agency relationship with at least one credible witness and other corroborating circumstances. La. Civ. Code Ann. art. 1846 (West 1985); 11410 So. 2d 683">Savoie v. Estate of Rogers, supra. 1991 Tax Ct. Memo LEXIS 564">*582 Petitioner has failed to prove that the agency relationship existed as required by La. Civ. Code Ann. arts. 2992 and 1846. Petitioner never testified that he was appointed to act as the State's agent for purposes of accepting the purported donations. Instead, he only testified that Governor Edwards asked him to store the animals until the State could provide proper facilities for them. Assuming this is what Governor Edwards told petitioner, we are unable to discern from petitioner's testimony any evidence that Governor Edwards specifically designated him to act as the State's agent and accept donations on its behalf. Even if petitioner intended to donate the animals to the State by placing them in the building behind his house, no one acting on the State's behalf accepted the donations, which is a prerequisite for a completed gift. The only other witness called by petitioner to testify on the agency relationship was Governor Edwards. Governor Edwards' testimony does not support petitioner's agency theory. Governor Edwards never testified that he appointed petitioner to act as the State's agent to accept delivery of the donations. Governor Edwards testified that at his meeting1991 Tax Ct. Memo LEXIS 564">*583 with petitioner in 1979, he and petitioner were "lax" in establishing a mechanism for effectuating future "gifts" from petitioner to the State. His explanation of how petitioner's donations were to be accepted by the State after 1979 reflects this. He testified that he accepted the donations on behalf of the State. However, Governor Edwards was not in office from March 1980 until March 1984. We fail to see how he could have accepted gifts on behalf of the State during this period. He also testified that he asked petitioner to place the trophies in the building behind his house and a representative from the State would come by and take a formal inventory. However, no such inventory was taken during these years and, until the execution of the Donation Inter Vivos on December 29, 1984, the State did not have any record of items which petitioner purportedly donated to the State during 1981, 1982, and 1983. In fact, petitioner testified that between March 1980 and March 1984, he could not even get Governor Treen to return his phone calls, much less send someone out to take an inventory. Because petitioner has not presented "one witness and other corroborating circumstances" to 1991 Tax Ct. Memo LEXIS 564">*584 prove the agency relationship as required by La. Civ. Code Ann. art. 1846 (West 1985), he has not established the requisite agency relationship upon which his theory of completed donations rests. Accordingly, we hold that petitioners may not claim deductions for petitioner's alleged charitable contributions for the taxable years 1981 through 1984. Petitioners argue on brief that petitioner's position that he is both the donor and the agent of the donee "should not in any way vitiate the agency contract that he had with the State of Louisiana as such a dual capacity is not prohibited under Louisiana law." Although we are unaware of any statute expressly prohibiting the donor from acting as the donee's agent, such an arrangement is inconsistent with requiring a clear and unmistakable manifestation of the intent by the donor to part with legal title, dominion, and control of the subject matter of the gift. In the case where the donee has someone other than himself accept the donation on his behalf, the intent is still evidenced by the transfer of the subject matter of the gift from the donor to a third party, be it the donee or his agent. Louisiana jurisprudence acknowledges this 1991 Tax Ct. Memo LEXIS 564">*585 rationale and incorporates it in its decisions. Under Louisiana law, a donation inter vivos by manual gift accompanied by real delivery occurs only when the donor's intent to donate and actual possession of the movable property by the donee operate simultaneously. Adams v. Security Ins. Co. of Hartford, 533 So. 2d 140">533 So. 2d 140, 533 So. 2d 140">145 (La. Ct. App. 1988), affd. in part and revd. in part 543 So. 2d 480">543 So. 2d 480 (1989); Mitchell v. Mitchell, 489 So. 2d 483">489 So. 2d 483, 489 So. 2d 483">486 (La. Ct. App. 1986); Succession of Broussard, 306 So. 2d 399">306 So. 2d 399 (La. Ct. App. 1975). Hand to hand delivery from donor to donee is not required; all that is necessary is a manifestation of intent of the donor to give, accompanied by some form of real delivery. Succession of Young, 563 So. 2d 502">563 So. 2d 502, 563 So. 2d 502">507 (La. Ct. App. 1990); Succession of McCrocklin, 126 So. 2d 364">126 So. 2d 364, 126 So. 2d 364">367 (La. Ct. App. 1960), affd. 242 La. 404">242 La. 404, 137 So. 2d 274">137 So. 2d 274 (1961); Succession of Moran v. Moran, 25 So. 2d 302">25 So. 2d 302, 25 So. 2d 302">303 (La. Ct. App. 1946); Ory Bros. v. Muller, 14 La. App. 35, 128 So. 903, 905 (La. Ct. App. 1930). In Succession of Zacharie, 119 La. 150">119 La. 150, 43 So. 988">43 So. 988 (1907),1991 Tax Ct. Memo LEXIS 564">*586 the issue before the Louisiana Supreme Court was whether moneys placed by an agent on behalf of a donor into the donees' bank account was a completed manual gift. The court stated that the bank received the gift as the agent of the donee and that upon receipt, manual delivery was effectuated as the subject matter of the gift was no longer within the dominion and control of the donor. As to the delivery to the donees' agent as a means of completing the gift, the court stated: "He [the donor] wisely placed the funds * * * in a savings bank, and by so doing assured their [the donees'] future against the accidents of a business life and the contingency of his death. This object could only have been accomplished by divesting himself irrevocably of his ownership." Succession of Zacharie, 43 So. 988">43 So. at 991. Implicit in the Zacharie decision is the notion that delivery to a third party provides an objective manifestation of the donor's intent to divest himself of ownership of the subject matter of the gift. By contrast, where, as in the instant case, the donor purportedly also acts as the donee's agent, there is no objective manifestation of this intent. 1991 Tax Ct. Memo LEXIS 564">*587 The purported transfer and acceptance occur only in the donor's mind. There is no tangible proof of the donation, and the donor is free to retain the "donated" property. In the event of the donor's death, the donee could not establish the gift. In the instant case, the subject matter of the gift never left petitioner's possession. The State never took possession, dominion, or control of the trophies. There was never any objective manifestation of real delivery during the respective years in which the purported gifts were made. Under these circumstances, we find that petitioner has not effectuated a manual gift. We note that there are significant practical problems with petitioner's agency theory. Foremost is the fact that no one from the State appears to have known what was purportedly being donated to the State during the years in which the donations were allegedly made. The legal effect of a completed gift is the transfer of property from the donor to the donee. Surely someone with authority to bind the State would have to know what was being donated and accept it before the gift could be completed. For example, during the years 1981, 1982, and 1983, we do not believe1991 Tax Ct. Memo LEXIS 564">*588 that the State would have accepted any attendant liabilities associated with ownership of the property. It is clear that the State was unable and unwilling to assume even the cost of maintaining and storing the trophies. If, on the other hand, petitioner or his estate had disputed the State's ownership of the property, the State would have had great difficulty proving that it owned the animals. This is because petitioner never made an objective, unequivocal manifestation of his donations which would indicate to third parties his intent to donate. The State possessed no information identifying which property petitioner claims to have donated to the State and no proof of these donations. We also question whether Governor Edwards, just a few months before leaving office, could legally appoint someone to act as the State's agent during the next administration, especially without reducing the appointment to writing or otherwise recording the agency with the State government. Petitioner argues, without citation to any authority, that "obviously, Mr. Miller's agency relationship with the State * * * did not terminate when Governor Edwards left office * * *. Governor Edwards is not1991 Tax Ct. Memo LEXIS 564">*589 the principal in this relationship, the State of Louisiana is." Without further citation to authority, we are unable to grasp the "obviousness" of this position and consider the validity of petitioner's "appointment" an additional problem with petitioner's position. Finally, we address the effect of the State court litigation on the issue of whether a completed gift occurred for purposes of Federal income taxes during the taxable years 1981 through 1984. As the State court decision is not a decision of the highest court in Louisiana, and we are unaware of a ruling by the Louisiana high court on this exact issue, we are only required to give the lower court decision "proper regard." Commissioner v. Estate of Bosch, 387 U.S. 456">387 U.S. 456, 387 U.S. 456">465, 18 L. Ed. 2d 886">18 L. Ed. 2d 886, 87 S. Ct. 1776">87 S. Ct. 1776 (1967). Our review indicates that the State court did not make an independent finding of fact that petitioner completed the purported gifts in the years claimed on petitioners' tax returns. Instead, the court relied on the Donation Inter Vivos executed by the parties in 1984 to establish the facts upon which summary judgment in favor of petitioner was granted. The Donation Inter Vivos only referred to gifts allegedly made in the1991 Tax Ct. Memo LEXIS 564">*590 years 1979 through 1983. Petitioners argue that the facts stated in the Donation Inter Vivos are sufficient to establish that the donation occurred in the years claimed. However, the State court did not determine that the facts stated in the Donation Inter Vivos actually occurred. Instead, the State court decided that, for purposes of the State court litigation, the State was bound to the recitation of events it agreed to in the Donation Inter Vivos executed on December 29, 1984, regardless of whether these events in fact occurred during the years 1979 through 1983. Thus, the court's judgment was not based on its own independent factual findings. Under these circumstances, we give no weight to the State court's judgment. 12 1991 Tax Ct. Memo LEXIS 564">*591 Petitioners concede that the 1984 Donation Inter Vivos does not effectuate a gift for any years other than 1979 through 1983. 13 Because of this explicit concession, we do not address whether the Donation Inter Vivos executed on December 29, 1984, resulted in a completed gift in that year. B. 1985 As to the claimed 1985 donation, we find that a valid donation occurred. This donation is not based on petitioner's agency theory. Instead, this1991 Tax Ct. Memo LEXIS 564">*592 donation was effectuated by an Act of Donation Inter Vivos executed on December 30, 1985. Respondent concedes that this document was properly executed. Under Louisiana law, the effect of executing the Act of Donation Inter Vivos is the present and irrevocable divestment of the subject matter of the gift from the donor in favor of the donee, who accepts it. La. Civ. Code Ann. art. 1468 (West 1985). 14 Thus, the fourth and sixth essential elements of a gift are present. We also find that the fifth element, delivery, is present. The regulations do not define delivery. In order to determine whether delivery was effectuated, we look to State law. See Greer v. Commissioner, 70 T.C. 294">70 T.C. 294, 70 T.C. 294">304 (1978), affd. 634 F.2d 1044">634 F.2d 1044 (6th Cir. 1980); see also1991 Tax Ct. Memo LEXIS 564">*593 Alioto v. Commissioner, T.C. Memo 1980-360. Louisiana law permits parties to consent to delivery if the property is not transportable. La. Civ. Code Ann. art. 2478 (West 1985). 15 In this case, it appears that removal of the trophies was not practical, and in the notarial act executed on December 30, 1985, the parties consented to delivery. Accordingly, we find that delivery occurred. We also find that petitioner was competent to make the gift, that the State was capable of accepting the gift, and that petitioner intended to divest himself of title, dominion, and control of the subject matter of the gift. Accordingly, we hold that a valid inter vivos gift occurred in 1985 of the items listed on the notarial act executed on December 30, 1985. 3. Valuation of 1985 Trophy1991 Tax Ct. Memo LEXIS 564">*594 Donations The next issue for decision is the value of the property donated to the State for purposes of the section 170 deduction for charitable contributions. The value of a charitable contribution is purely a factual issue and one that this Court has traditionally admonished the parties for not deciding among themselves. Messing v. Commissioner, 48 T.C. 502">48 T.C. 502, 48 T.C. 502">512 (1967). "The legal standard defining fair market value is 'the price at which the property would change hands between a willing buyer and a willing seller, neither being under any compulsion to buy or sell and both having reasonable knowledge of relevant facts.'" Cupler v. Commissioner, 64 T.C. 946">64 T.C. 946, 64 T.C. 946">955 (1975) (citing Mauldin v. Commissioner, 60 T.C. 749">60 T.C. 749, 60 T.C. 749">758 (1973)); sec. 1.170A-1(c)(1) and (2), Income Tax Regs. The fact that the property is unique and that there is no "market price" is not a barrier to valuation. 64 T.C. 946">Cupler v. Commissioner, supra at 955. In determining value, the use to which the donated property will be put is a relevant factor. Guggenheim v. Rasquin, 312 U.S. 254">312 U.S. 254, 312 U.S. 254">258, 85 L. Ed. 813">85 L. Ed. 813, 61 S. Ct. 507">61 S. Ct. 507 (1941). In short, valuation1991 Tax Ct. Memo LEXIS 564">*595 issues are questions of fact, and all relevant evidence is to be considered in their resolution. Skripak v. Commissioner, 84 T.C. 285">84 T.C. 285, 84 T.C. 285">320 (1985); 64 T.C. 946">Cupler v. Commissioner, supra; 60 T.C. 749">Mauldin v. Commissioner, supra at 759; Kaplan v. Commissioner, 43 T.C. 663">43 T.C. 663, 43 T.C. 663">665 (1965). Both parties rely heavily on expert opinions to support their contentions as to the value of the contributions. We evaluate such opinions in light of the demonstrated qualifications of the expert and all other evidence of value. Estate of Newhouse v. Commissioner, 94 T.C. 193">94 T.C. 193, 94 T.C. 193">217 (1990); Parker v. Commissioner, 86 T.C. 547">86 T.C. 547, 86 T.C. 547">561 (1986); Johnson v. Commissioner, 85 T.C. 469">85 T.C. 469, 85 T.C. 469">477 (1985). We are not bound, however, by the opinion of any expert witness when that opinion is contrary to our judgment, especially where the expert's opinion of value is so exaggerated that the opinion is incredible. 94 T.C. 193">Estate of Newhouse v. Commissioner, supra at 217; 86 T.C. 547">Parker v. Commissioner, supra at 561. While we may accept the opinion of an expert 1991 Tax Ct. Memo LEXIS 564">*596 in its entirety, Buffalo Tool & Die Mfg. Co. v. Commissioner, 74 T.C. 441">74 T.C. 441, 74 T.C. 441">452 (1980), we may be selective in the use of any portion of such an opinion. 86 T.C. 547">Parker v. Commissioner, supra at 562. Consequently, we will take into account expert testimony to the extent it aids us in arriving at the fair market value of the donated property. Respondent relies primarily on the testimony of his expert, Larry C. Blomquist. Mr. Blomquist is a taxidermist who has received national recognition in his field. Mr. Blomquist has never hunted abroad, but he claims that he is aware of the costs of hunting abroad and the expenses of shipping trophies back to the United States because he has many clients who do hunt abroad. Mr. Blomquist has visited museums similar to the one that petitioner wanted to establish and states that through these visits and conversations with individuals connected with these museums, he became familiar with the needs of a museum of this type. Although Mr. Blomquist does not hold himself out as a professional appraiser, he has done appraisals on many occasions. Mr. Blomquist's valuation is based on his finding that, although limited, 1991 Tax Ct. Memo LEXIS 564">*597 a market for animal trophies exists. In cases where Mr. Blomquist knew of comparable sales, he valued petitioner's trophies at the sale price. Mr. Blomquist admits that he is unaware of comparable sales for the majority of items in the collection, and he never specifically identified the trophies for which he did find comparables. If there was not a comparable sale, Mr. Blomquist assigned a value based on the sale of a trophy which had a comparable replacement cost. For instance, if there was a trophy for which no comparable sale existed, that trophy received the same value as a trophy which had approximately the same replacement cost and for which there was a comparable sale. Mr. Blomquist testified that by using the term "replacement cost," he meant the cost of obtaining the skin, horns, and other parts domestically, mounting these parts to create a trophy, and adding an additional amount to cover the cost of bringing these elements together. On cross-examination, Mr. Blomquist admitted that it would be difficult to obtain the parts necessary to replace the majority of the trophies in petitioner's collection and that it would be necessary to incur the cost of going into the1991 Tax Ct. Memo LEXIS 564">*598 field in order to replace these trophies. Nevertheless, Mr. Blomquist's report states that he did not include the cost of hunting in his computation of replacement cost because the skins could be obtained from other sources. If the trophy's replacement cost was not the same as a trophy for which Mr. Blomquist had a comparable sale, he would assign a value to the trophy based on his experience and general knowledge of sales of wildlife trophies. Mr. Blomquist considered aspects such as popularity of the species, position and style of mount, availability of the mount, and scarcity of the specimen when determining fair market value. Once Mr. Blomquist established a value for each trophy in the collection, he totaled all of the values and then reduced this total to arrive at a value for the whole collection. Mr. Blomquist reduced the total value because he felt that a volume purchaser would expect a discount and also to reflect the limitations which may be imposed by law on the sale of certain trophies in certain States. 16 1991 Tax Ct. Memo LEXIS 564">*599 Mr. Blomquist admits that he did not have time to identify several subspecies during his inspection, that he was rushed for time, and that he was forced to identify (and presumably evaluate) some of the trophies based on photographs. Mr. Blomquist also admits that he did not have time to value the trophies as of the day donated, and that instead, he determined the value of the trophies as of December 31, 1988. Finally, Mr. Blomquist admits that he did not increase the value assigned to the trophies which were Safari Club International (SCI) records, even though he admits that this status could increase the value of the trophies from 50 to 500 percent. Petitioner relies primarily on the testimony of Jack B. Perry. 17 Mr. Perry is a taxidermist, president of the World Wildlife Museum, SCI measurer, and an SCI recertification measurer. Mr. Perry has also been employed by respondent to appraise animal collections. Of all the experts who testified at trial, Mr. Perry has the most experience appraising trophies. Mr. Perry examined petitioner's trophies for 4 days in preparation of his evaluation. 1991 Tax Ct. Memo LEXIS 564">*600 Mr. Perry began his evaluation by first determining the cost of replacing the trophy. He included the cost of the safari, trophy fees, taxidermy, and shipping in the replacement cost. Mr. Perry recognized that more than one specimen may be taken in a safari and therefore did not include the total cost of a safari in each trophy's replacement cost. Once the replacement cost was established, Mr. Perry adjusted the cost upward to reflect the specimen's rarity, world record class standing artistic value, and current restrictions on hunting the species. With respect to the premium that he attached to a trophy because of its world class status, Mr. Perry testified that a significant element of this factor represented the increased cost of replacing the trophy caused by the fact that it could take several trips to replace a world class trophy. He then totaled the appraisal value assigned to each trophy to arrive at a total value for the entire collection. Respondent argues on brief that Mr. Perry's reliance on replacement costs in his evaluation is improper because a probative correlation between replacement costs and fair market value has not been demonstrated as required by Rev. Proc. 66-49, 1966-2 C.B. 1257, 1258.1991 Tax Ct. Memo LEXIS 564">*601 We find that petitioner has demonstrated a probative correlation between replacement costs and fair market value. As this Court has noted in the past, a correlation between replacement costs and fair market value is generally demonstrated when the property is unusual in nature and other methods of valuation, such as comparable sales or income capitalization, are not applicable due to the property's uniqueness and non-income-producing use. 18 Moreover, the experts agree that a museum could not purchase many of the trophies in petitioner's collection and, instead, would go into the field to collect it. Thus, replacement costs indicate the amount of money that a willing buyer would pay to obtain a trophy. Finally, respondent's own expert admitted that he used replacement value in his evaluation. This also indicates that the probative correlation exists. 1991 Tax Ct. Memo LEXIS 564">*602 We find that it is appropriate to consider replacement costs in arriving at fair market value. We do not believe that respondent has shown that the reconstructed "market" created by Mr. Blomquist accurately indicates the price at which petitioner's trophies would sell. However, we do agree with Mr. Blomquist that a purchaser of an entire collection would expect some type of volume discount and that a museum would not pay petitioner full replacement value for a trophy, because for that amount of money, a museum would go into the field and replace the trophy itself. Finally, we find that Mr. Perry's adjustment for world record status is too generous. The testimony of other witnesses for petitioner indicates that, although a museum would display world class mounts, it would not reject other mounts of the same species. Based on the entire record, we find the total value of the trophies contributed to the State in 1985 to be $ 71,000. 4. Limits on Amount of Deduction for Donation of Trophies The next issue for decision is whether the charitable contribution deductions claimed by petitioners are limited to the fair market value of the animal trophies reduced by the amount1991 Tax Ct. Memo LEXIS 564">*603 of gain which would not have been long-term capital gain if the animal trophies had been sold at their fair market value. See sec. 170(e). On brief, respondent acknowledges that he raised this issue for the first time after trial. Respondent has not sought to amend his answer to include this additional ground for his deficiency determination as required by Rule 41. Therefore, the issue is not properly before us. However, even if respondent had moved to amend his pleadings under Rule 41, it appears that such an amendment would prejudice petitioner, who did not have an opportunity to present evidence on this issue at trial. Under these circumstances, we would be inclined to deny such a motion. See Law v. Commissioner, 84 T.C. 985">84 T.C. 985, 84 T.C. 985">991 (1985). Finally, if the issue was properly before us, respondent would bear the burden of proof as this issue constitutes a new matter. 19 Rule 142(a). Respondent is unable to satisfy his burden of proof. He failed to present any evidence on petitioner's basis in the trophies. Moreover, we value petitioner's trophies at a value which is less than the replacement costs which Jack Perry determined. 20 This indicates that 1991 Tax Ct. Memo LEXIS 564">*604 petitioner's cost basis in the trophies may have exceeded their fair market value. In that case, the exclusion of built-in ordinary income from the deduction for charitable contributions does not apply. Accordingly, we hold for petitioner on this issue. 5. Hunting and Mounting Expenses The next issue for decision is whether petitioners can deduct the "cash contributions" that they allegedly made to the State. The cash contributions represent payment of expenses which petitioner allegedly incurred while hunting and mounting the trophies that he claims he contributed to the State. Section 1.170A-1(g), Income Tax Regs., provides in part: "unreimbursed expenditures made incident to the rendition of services to an organization contributions to1991 Tax Ct. Memo LEXIS 564">*605 which are deductible may constitute a deductible contribution." There is no argument that petitioner was not reimbursed for his alleged expenses and that payment of expenses incident to rendering services to the State would constitute a deductible contribution. The parties disagree on whether petitioner was rendering services to the State when he incurred the expenses. Petitioner argues that, pursuant to his commission as the Official Big Game Hunter for the State, he was required to travel the world and obtain trophies to be placed in the State's wildlife museum. In executing his commission, petitioner incurred expenses for which he was not reimbursed. These expenses form the basis for petitioners' claimed deduction for the "cash contributions." Respondent argues that the expenses incurred by petitioner on his hunting trips were not incident to the rendition of services to the State as required by section 1.170A-1(g), Income Tax Regs. Instead, respondent argues that these expenses were incurred while petitioner was on personal trips during which he acquired personal property. Respondent further argues that petitioner was designated as the Official Big Game Hunter for the State1991 Tax Ct. Memo LEXIS 564">*606 in order to assist him in obtaining access to certain hunting areas and that the designation did not create an agency relationship under which the trophies taken became the State's property. We agree with respondent. Petitioner testified that the trophies he acquired were his own personal property, and that he was under no legal obligation to donate them to the State. If petitioner were on the hunting trips as the State's agent, then the property he acquired would belong to the State. This is because, under agency law, the benefits derived from the agent's efforts inure to the principal. La Civ. Code Ann. art. 3005 (West 1985); 21Neal v. Daniels, 217 La. 679">217 La. 679, 47 So. 2d 44">47 So. 2d 44, 47 So. 2d 44">45 (1950); Restatement, Agency 2d, sec. 388 (1957). Petitioner considered the trophies to be his property. The trips to acquire them were also personal to petitioner and not incident to the rendition of services for the State. Thus, the expenses are not deductible. 1991 Tax Ct. Memo LEXIS 564">*607 Moreover, if we permitted petitioners to deduct both the expenses for the "cash contributions" and the fair market value of the property that petitioner contributed to the State, we would in effect permit petitioners to take a double deduction. Petitioners could first deduct their acquisition cost, and then they could deduct the fair market value of the property computed on the basis of replacement costs. Not only is this illogical, it is not permitted under the regulations, which require that a taxpayer incur the expenses incident to the rendition of services to the State. If the services are rendered on behalf of the State, then the property is the State's property, and petitioner could not subsequently contribute the property and claim a deduction. If petitioner acquires the property on his own behalf, then he is not rendering services to the State and, therefore, may not deduct the expenses incurred in connection with the acquisition. Petitioners cite Cupler v. Commissioner, 64 T.C. 946">64 T.C. 946 (1975); LaGarde v. United States, 1975 U.S. Dist. LEXIS 14883">1975 U.S. Dist. LEXIS 14883, 37 A.F.T.R.2d (RIA) 556, 76-1 U.S. Tax Cas. (CCH) P9248 (N.D. Ala. 1975); and Jersig v. United States, 1968 U.S. Dist. LEXIS 11806">1968 U.S. Dist. LEXIS 11806, 27 A.F.T.R.2d (RIA) 1102">27 A.F.T.R.2d (RIA) 1102, 69-1 U.S. Tax Cas. (CCH) P9311 (W.D. Tex. 1969),1991 Tax Ct. Memo LEXIS 564">*608 for the proposition that they may deduct both the expense of acquiring the trophies and the fair market value of the trophies. Petitioners' reliance on these cases is misplaced. None of these cases establish whether the taxpayers obtained the property on behalf of the charitable organization or for themselves. Because this factual issue is not established, these cases are distinguishable. 22 6. Expenses for Maintenance of Trophies The next issue for decision is whether petitioners may deduct expenses incurred in connection with 1991 Tax Ct. Memo LEXIS 564">*609 the care and maintenance of the trophies that petitioner donated to the State. Since we find that petitioner did not donate the trophies that he claims he donated in the years 1981 through 1984, the expenses incurred in connection with the care and maintenance of these trophies are nondeductible personal expenses. Because we find that petitioner donated trophies in 1985, we will consider whether the expenses incurred in connection with the care and maintenance of these trophies are deductible. At trial, the only evidence petitioner presented on this issue was his own testimony. Petitioner presented no other evidence to substantiate his claim that he incurred the expenses he deducted. We find that petitioner has failed to satisfy his burden of proving that he actually incurred the expenses which he deducted. Accordingly, we hold for respondent on this issue. 23 1991 Tax Ct. Memo LEXIS 564">*610 7. Addition to Tax for Overvaluation The next issue for decision is whether petitioners are liable for additions to tax for valuation overstatements of property under section 6659 for the taxable years 1981, 1983, and 1984. 24 Section 6659 imposes a graduated addition to tax on individuals whose underpayment of tax equals or exceeds $ 1,000 and is attributable to a valuation overstatement. Sec. 6659(d). A valuation overstatement exists if "the value of any property, or the adjusted basis of any property, claimed on any return is 150 percent or more of the amount determined to be the correct amount of such valuation or adjusted basis (as the case may be)." Sec. 6659(c)(1). Where a determination that a taxpayer is not entitled to the claimed deductions is upheld without regard to any claim of basis or without findings with respect to fair market value, the addition to tax under section 6659 may be1991 Tax Ct. Memo LEXIS 564">*611 inapplicable because the resulting underpayment of tax may be attributable solely to the disallowed deductions, not to a valuation overstatement. Todd v. Commissioner, 862 F.2d 540">862 F.2d 540 (5th Cir. 1988), affg. 89 T.C. 912">89 T.C. 912 (1987); McCrary v. Commissioner, 92 T.C. 827">92 T.C. 827, 92 T.C. 827">851-855 (1989); Suna v. Commissioner, T.C. Memo 1988-541, affd. 893 F.2d 133">893 F.2d 133 (6th Cir. 1990). In this case, the deductions for charitable contributions for the years 1981, 1983, and 1984 were disallowed because the contributions were not completed. However, we made no findings of fact as to the correct value of the trophies that petitioner purportedly donated to the State during these years. Thus, the valuation overstatements, if any, regarding the trophies were not integral to, and inseparable from, our disallowance of the deductions for the charitable contributions. The underpayments, therefore, were not "attributable to" valuation overstatements. Under these circumstances, the additions to tax under section 6659 are not applicable. 862 F.2d 540">Todd v. Commissioner, supra.Accordingly, we hold for petitioners on1991 Tax Ct. Memo LEXIS 564">*612 this issue. 8. Deduction Related to Hunting Lodge The final issue for decision is whether petitioners are entitled to business expenses and depreciation deductions for the taxable years 1983 through 1985 for expenses allegedly incurred in connection with the operation of the Ram Head Hunting Lodge. Petitioners deducted business expenses under section 162 on Schedule C of their 1983, 1984, and 1985 income tax returns. In order to deduct expenses under section 162, the expenses must be paid or incurred in connection with an active trade or business. Thus, petitioners must demonstrate that they actively engaged in the trade or business of operating a hunting lodge. Rule 142(a). Petitioners argue that the expenses "were directly related to the operation of the business." Respondent, on the other hand, argues that the expenses are not deductible because the Ram Head Hunting Lodge was not operated as a trade or business. We find that petitioners were not engaged in an active trade or business. The record clearly indicates that petitioner never obtained the license necessary to operate the hunting lodge. The record also indicates that no revenues were ever generated by this1991 Tax Ct. Memo LEXIS 564">*613 activity. Petitioner acknowledges that he could not operate the hunting lodge business without the license, and that he was unable to obtain that license. Under these circumstances, we do not believe it was possible for petitioners to have engaged in a trade or business as required by section 162. The expenses which petitioners purportedly incurred are at best preoperating expenses. These expenses are clearly not deductible. Richmond Television Corp. v. United States, 345 F.2d 901">345 F.2d 901, 345 F.2d 901">907 (4th Cir. 1965), vacated and remanded on other issues 382 U.S. 68">382 U.S. 68 (1965), original holding on this issue reaffd. 354 F.2d 410">354 F.2d 410, 354 F.2d 410">411 (4th Cir. 1965), overruled on other grounds NCNB v. United States, 684 F.2d 285">684 F.2d 285, 684 F.2d 285">289 (4th Cir. 1982); Hardy v. Commissioner, 93 T.C. 684">93 T.C. 684 (1989); Bennett Paper Corp. v. Commissioner, 78 T.C. 458">78 T.C. 458 (1982), affd. 699 F.2d 450">699 F.2d 450 (8th Cir. 1983). The instant case is analogous to 345 F.2d 901">Richmond Television Corp. v. United States, supra.In Richmond Television Corp., the taxpayer incurred expenses in connection with training its1991 Tax Ct. Memo LEXIS 564">*614 employees prior to obtaining a broadcast license from the Federal Communications Commission (FCC). The taxpayer deducted these expenses in the year incurred and prior to obtaining the FCC license or broadcasting television signals. The Fourth Circuit held that the expenses were incurred before the taxpayer obtained the proper licensing to engage in the business of television broadcasting. Therefore, the expenses were preoperating expenses and not deductible under section 162 as that section requires that the taxpayer actively engage in the trade or business in order to deduct expenses. In the instant case, petitioner lacked the proper licensing to engage in the trade or business of operating a hunting lodge. As a result of his inability to obtain this license, he abandoned his pursuit of this activity. Because petitioner never engaged in the trade or business of operating a hunting lodge, expenses incurred in connection with the Ram Head Hunting Lodge are not deductible under section 162. Petitioners also claimed depreciation deductions under section 168. Section 168(c) allows for accelerated cost recovery of property which is "of a character subject to the allowance for depreciation." 1991 Tax Ct. Memo LEXIS 564">*615 Sec. 168(c). Thus, section 168(c) imposes the same limitations on deductions as section 167. In order to depreciate property under section 167, the property must be used in a trade or business or held for the production of income within the meaning of section 167(a). Porreca v. Commissioner, 86 T.C. 821">86 T.C. 821, 86 T.C. 821">843 (1986); Flowers v. Commissioner, 80 T.C. 914">80 T.C. 914, 80 T.C. 914">931-932 (1983). The trade or business and production of income requirements under section 167 are the same as those under sections 162 and 212. Lemmen v. Commissioner, 77 T.C. 1326">77 T.C. 1326, 77 T.C. 1326">1340 n.16 (1981). Because section 168 recovery property must be of the same character as depreciable property under section 167, the property must meet either the trade or business or production of income requirements of either section 162 or section 212. We have already held that petitioners were not engaged in a trade or business for purposes of section 162. Accordingly, the property they depreciated in connection with the same activity does not satisfy the trade or business requirement of section 162 for purposes of section 168. As to the held-for-production-of-income requirement under1991 Tax Ct. Memo LEXIS 564">*616 section 212, this Court has held that the preoperating expense doctrine applies to deductions claimed under section 212 and that section 212 requires that the taxpayer actually enter into the income-producing activity in order for the property to be considered held for the production of income. 93 T.C. 684">Hardy v. Commissioner, supra at 693. As with the costs of starting up a new trade or business, the cost of starting up a new income-producing activity is inherently capital as such expenses are incurred in creating or acquiring a capital asset. 93 T.C. 684">Hardy v. Commissioner, supra at 690. Capital expenses are not deductible under section 212. Sec. 1.212-1(n), Income Tax Regs. Because petitioners failed to prove that they satisfied the trade or business requirement of either section 162 or the held-for production-of-income requirement of section 212, we hold for respondent on this issue. Decision will be entered under Rule 155. APPENDIX Tax Year 1981 Appraisal ReportAppraised Value Brian GaisfordcJack Perry SPANISH IBEX$ 5,000$ 4,500 SIBERIAN IBEX6,50017,500 SIBERIAN IBEX6,0006,000 SPANISH IBEX14,00027,000 ARGALI GOBI11,00025,000 MOUFLON SHEEP6,00016,000 TUR9,50017,500 MOUNTAIN LION4,5004,500 ALASKAN BROWN BEAR7,500* ASIATIC FOUR HORNED SHEEP3,5003,500 WILD TURKEY1,0001,000 SPANISH GOAT3,0003,500 OPOSSUM VIRGINIA750500 RACOON900500 MONGOLIAN WILD CAT1,2006,000 WATER BUFFALO3,5005,500 DALL SHEEP25,00025,000 DALL SHEEP**12,500 ARMENIAN SHEEP3,50015,000 STONE SHEEP9,0009,000 URIAL RAM12,00035,000 MOUNTAIN GOAT4,5005,000 DESERT SHEEP12,00020,000 BARBARY SHEEP6,5008,500 ASIAN BUFFALO4,5006,500 SIBERIAN IBEX4,5006,000 MARAL STAG4,5004,500 ELK3,500 MOUFLON SHEEP4,5005,500 CORSICAN SHEEP3,0003,500 BLACK BEAR4,5004,500 ARGALI ALTAI50,00045,000 ARGALI ALTAI50,00045,000 FALLOW DEER3,0004,500 1991 Tax Ct. Memo LEXIS 564">*617 Appraisal ReportAppraised Value Brian GaisfordJack Perry FALLOW DEER4,0004,500 BLACK BEAR5,0005,000 JAVELINA OR PECCARY: (3) Male2,5002,500 Female2,2002,500 Piglet1,5001,500 FOX SQUIRREL350250 GREY DUCK950500 WOOD DUCK950500 WHITE-TAILED DEER: (3) Female3,5003,500 Fawn1,5001,500 Base1,2001,200 HAWK800350 WARTHOG1,2003,500 WARTHOG1,2003,500 ELAND-GIANT8,5007,250 HARTEBEEST LICHTENSTEIN4,5004,250 BUFFALO CAPE5,0005,500 WILDEBEEST-GNU4,5005,500 ARTIC FOX1,6001,200 ARTIC FOX1,6001,200 WALRUS: (2)7,0007,000 WOLF BLACK4,0004,000 FOX RED MONGOLIAN1,7002,500 ARTIC FOX1,6001,200 ARTIC HARE900500 MOUNTAIN CARIBOU8,0008,000 MUSXOX: (3) Male11,00020,000 Female9,00015,000 Calf6,00015,000 WOLF ARTIC4,5004,500 POLAR BEAR18,00025,000 FOX1,5001,200 EMPERIOR GOOSE1,000500 PTARMIGAN: (2)800250 ea. MARTEN FISHER1,1001,100 FOX CROSS PHASE1,6001,200 FOX ARTIC BLUE PHASE1,6001,200 ARTIC HARE1,200400 SNOWY OWL2,0002,000 WOLF4,500 OTTER1,2001,200 BEAVER3,6003,600 NILGAI8,00018,000 NYALA5,5006,000 NYALA4,0006,000 ZEBRA COMMON7,5007,500 SASSABY6,0008,500 BLESBOK5,00055,000 RED FOX1,600750 WILD TURKEY1,1001,000 ORIBI: (2) Male3,5007,400 Female3,0007,500 BUSHBUCK: (2) Male5,50010,000 Female4,5005,500 SPRINGBUCK3,0004,750 HARTEBEEST RED6,5006,500 LLAMA3,5003,500 COKES HARTEBEEST6,50020,500 ORYX OR GEMSBOK7,5007,500 REED BUCK4,00055,000 ERITREAN GAZELLE4,00020,000 JAVELINA OR PECCARY: (3)6,2005,000 1991 Tax Ct. Memo LEXIS 564">*618 Appraisal ReportAppraised Value Brian GaisfordJack Perry ROAN ANTELOPE10,00017,000 ZEBRA9,5009,500 JAGUAR8,5009,000 ELEPHANT60,00060,000 GIRAFFE RETICULATED40,00027,000 SABLE ANTELOPE9,0009,000 IMPALA RAM4,5005,750 IMPALA RAM4,5005,750 WHITE-TAILED GAZELLE4,50040,000 GIVENUTS (2)1,200600 ea. WHITE EARED KOB5,50012,000 WILDEBEEST6,5009,500 ORYX SCIMITAR HORNED10,00010,000 WATERBUCK6,5006,500 WARTHOG4,50012,000 WATERBUCK KUDU7,00011,500 KUDU5,0007,500 RED LECHWE8,0008,500 TIANG5,5006,500 LESSER KUDU5,0007,500 YELLOW BACKED DUIKER4,00040,000 NILE LECHWE9,5009,500 BUSH PIG4,0004,000 COLOBUS MONKEY7,5007,500 MONGALLA GAZELLE4,0008,500 MONGALLA GAZELLE4,00025,000 TAHR-HIMALAYAN5,0005,500 BLACK TAILED GAZELLE4,5006,000 BLACK TAILED GAZELLE4,5006,000 DUIKER4,0009,500 DIK-DIK3,00055,000 DIK-DIK2,5005,500 STEINBOK3,0006,250 PUDU DEER3,50015,500 MUNTJAC4,50017,500 HYENA-SPOTTED3,5004,500 SPRINGBUCK4,00010,000 WHITE EARED KOB7,50025,000 LEOPARD8,5009,500 BABOON3,0004,500 BLACK BUCK4,5004,500 ADDAX11,00020,000 DAMA GAZELLE6,00017,000 OSTRICH4,0005,500 LION14,00014,000 LION14,00014,000 PHEASANTS: (4)2,500500 ea. JACKAL2,5002,500 RED LEGGED CHUCKERS: (2)1,200600 ea. GRANTS GAZELLE4,5006,500 DINKA TRIBE SPEARS: (2)400 DINKA TRIBE ARROWS: (6)150 SEAL SKIN GLOVES550 WOLF SKIN GLOVES550 AZANDE KNIVES750 OULU SKINNERS KNIFE100 ESKIMO HAND WOVEN CALENDAR500 MONGOLIAN TRIBAL BOOTS1,100 SEAL SKIN COAT15,000 SEAL SKIN BOOTS450 RED SHEEP7,50015,000 NUBIAN IBEX7,50012,500 BOBCAT: (3)4,5001,000 ea. CORSICAN RAM6,0004,000 TAHR HIMALAYAN6,0006,000 ERITREAN GAZELLE4,0005,500 GRIZZLY BEAR8,50010,000 QUEBEC-LABRADOR CARIBOU8,0008,000 SIKA DEER3,5003,500 SIKA DEER4,0003,500 MULE DEER5,5005,500 MARAL STAG (Elk)7,5007,500 AMERICAN ELK7,0007,000 ELK6,0006,000 ELK3,5003,500 COYOTE1,8001,500 FOX SQUIRREL300300 SPRINGBUCK4,0008,500 RED LION OR MOUNTAIN LION6,5007,500 WHITE-TAILED GAZELLE4,50055,000 AXIS DEER4,5004,500 AXIS DEER4,0004,000 BISON11,0009,600 BROWN BEAR9,00013,000 RED DEER5,5005,500 RED DEER4,5004,500 RED DEER4,0004,000 MOOSE60,00060,000 CARIBOU-MOUNTAIN8,0008,000 CARIBOU-QUEBEC5,0004,500 CARIBOU-BARREN GROUND5,500 MOOSE5,500 Total:$ 1,154,650$ 1,749,250 1991 Tax Ct. Memo LEXIS 564">*619 Replacement ValueValue Assigned Jack PerryLarry Blomquistc SPANISH IBEX$ 4,500$ 5,333 SIBERIAN IBEX6,0006,000 SIBERIAN IBEX6,0006,000 SPANISH IBEX5,5005,333 ARGALI GOBI12,50010,000 MOUFLON SHEEP5,5005,000 TUR12,0005,500 MOUNTAIN LION4,5003,500 ALASKAN BROWN BEAR ASIATIC FOUR HORNED SHEEP3,5003,500 WILD TURKEY1,000500 SPANISH GOAT3,5002,400 OPOSSUM VIRGINIA500200 RACOON500350 MONGOLIAN WILD CAT6,0002,000 WATER BUFFALO5,500 DALL SHEEP25,00010,000 DALL SHEEP12,500 ARMENIAN SHEEP15,0004,500 STONE SHEEP9,0004,665 URIAL RAM15,0006,000 MOUNTAIN GOAT5,0004,000 DESERT SHEEP20,00016,500 BARBARY SHEEP8,5003,500 ASIAN BUFFALO5,500 SIBERIAN IBEX6,0001,000 MARAL STAG4,500 ELK MOUFLON SHEEP5,5005,000 CORSICAN SHEEP3,5002,500 BLACK BEAR4,5003,700 ARGALI ALTAI35,00010,000 ARGALI ALTAI35,00010,000 FALLOW DEER4,5002,600 FALLOW DEER4,500 BLACK BEAR5,0001,200 JAVELINA OR PECCARY: (3)1,800 Male2,500 Female2,500 Piglet1,500 Replacement ValueValue Assigned Jack PerryLarry Blomquistc FOX SQUIRREL250100 GREY DUCK500343 WOOD DUCK500343 WHITE-TAILED DEER: (3) Female3,5001,800 Fawn1,500700 Base1,200 HAWK350343 WARTHOG3,500800 WARTHOG3,500800 ELAND-GIANT7,2501,500 HARTEBEEST LICHTENSTEIN4,250800 BUFFALO CAPE5,5001,500 WILDEBEEST-GNU5,500850 ARTIC FOX1,200900 ARTIC FOX1,200850 WALRUS: (2)7,000 WOLF BLACK4,0002,350 FOX RED MONGOLIAN2,5001,000 ARTIC FOX1,200900 ARTIC HARE500300 MOUNTAIN CARIBOU6,5005,200 MUSXOX: (3)17,000 Male15,000 Female15,000 Calf15,000 WOLF ARTIC4,5002,350 POLAR BEAR25,00020,000 FOX1,200850 EMPERIOR GOOSE500343 PTARMIGAN: (2)250 ea.343 MARTEN FISHER1,100200 FOX CROSS PHASE1,200750 FOX ARTIC BLUE PHASE1,200950 ARTIC HARE400300 SNOWY OWL2,000400 WOLF2,350 OTTER1,200450 BEAVER3,600840 NILGAI8,0007,500 NYALA6,0004,000 NYALA6,000 ZEBRA COMMON7,5006,000 SASSABY6,5004,000 BLESBOK55,0003,500 RED FOX750300 WILD TURKEY1,000350 ORIBI: (2)3,000 Male4,000 Female4,000 BUSHBUCK: (2)5,500 Male4,500 Female5,500 SPRINGBUCK4,7503,000 HARTEBEEST RED6,5004,000 LLAMA3,5003,000 COKES HARTEBEEST6,5004,000 ORYX OR GEMSBOK7,5004,000 REED BUCK55,0003,500 ERITREAN GAZELLE5,5003,367 JAVELINA OR PECCARY: (3)5,0002,400 ROAN ANTELOPE8,5006,500 ZEBRA9,5006,000 JAGUAR9,0008,000 ELEPHANT60,00040,000 GIRAFFE RETICULATED27,00025,000 SABLE ANTELOPE9,0006,000 IMPALA RAM4,5002,500 IMPALA RAM4,5002,500 WHITE-TAILED GAZELLE6,0003,367 GIVENUTS (2)600 ea.1,200 WHITE EARED KOB5,5004,500 WILDEBEEST6,5004,000 ORYX SCIMITAR HORNED10,0007,500 WATERBUCK6,5004,500 WARTHOG5,5005,000 WATERBUCK4,500 KUDU7,5005,000 KUDU7,5004,000 RED LECHWE7,5004,500 TIANG6,5004,000 LESSER KUDU7,5003,500 YELLOW BACKED DUIKER5,0001,788 NILE LECHWE9,5006,500 BUSH PIG4,0003,000 COLOBUS MONKEY7,5007,500 MONGALLA GAZELLE4,5003,367 MONGALLA GAZELLE4,5003,367 TAHR-HIMALAYAN5,5003,500 BLACK TAILED GAZELLE6,0003,367 BLACK TAILED GAZELLE6,0003,367 DUIKER4,5001,750 DIK-DIK55,0002,500 DIK-DIK4,250 STEINBOK4,2501,500 1991 Tax Ct. Memo LEXIS 564">*620 Replacement ValueValue Assigned Jack PerryLarry Blomquistc PUDU DEER15,5002,500 MUNTJAC6,5003,000 HYENA-SPOTTED4,5002,000 SPRINGBUCK4,5003,000 WHITE EARED KOB7,5004,800 LEOPARD9,50010,000 BABOON4,5002,500 BLACK BUCK4,5002,000 ADDAX11,0004,800 DAMA GAZELLE6,5003,367 OSTRICH5,5004,000 LION14,00010,000 LION14,00010,000 PHEASANTS: (4)500 ea.325 JACKAL2,500800 RED LEGGED CHUCKERS: (2)600 ea.343 GRANTS GAZELLE5,5003,367 DINKA TRIBE SPEARS: (2) DINKA TRIBE ARROWS: (6) SEAL SKIN GLOVES WOLF SKIN GLOVES AZANDE KNIVES OULU SKINNERS KNIFE ESKIMO HAND WOVEN CALENDAR MONGOLIAN TRIBAL BOOTS SEAL SKIN COAT SEAL SKIN BOOTS RED SHEEP15,0004,000 NUBIAN IBEX7,500 BOBCAT: (3)1,000 ea.2,500 CORSICAN RAM4,0002,200 TAHR HIMALAYAN6,0005,000 ERITREAN GAZELLE5,5003,367 GRIZZLY BEAR10,0007,500 QUEBEC-LABRADOR CARIBOU8,0005,200 SIKA DEER3,5002,000 SIKA DEER3,5002,000 MULE DEER5,5003,000 MARAL STAG (Elk)7,5006,000 AMERICAN ELK7,0005,000 ELK6,0006,000 ELK3,5005,000 COYOTE1,500900 FOX SQUIRREL300100 SPRINGBUCK5,5003,000 RED LION OR MOUNTAIN LION7,5001,500 WHITE-TAILED GAZELLE55,0003,367 AXIS DEER4,5002,500 AXIS DEER4,0001,500 BISON9,6005,800 BROWN BEAR13,0007,500 RED DEER5,5006,300 RED DEER4,500 RED DEER4,000 MOOSE60,00015,000 CARIBOU-MOUNTAIN8,0005,200 CARIBOU-QUEBEC4,5005,200 CARIBOU-BARREN GROUND5,200 MOOSE7,000 Total:$ 1,391,100$ 661,712 1991 Tax Ct. Memo LEXIS 564">*621 Tax Year 1982 Appraisal ReportAppraised Value Brian GaisfordJack Perry LEOPARD$ 5,000$ 9,000 DESERT BIG HORN4,00020,000 DESERT BIG HORN4,00025,000 DESERT BIG HORN3,50017,000 OSTRICH (4 chicks)450450 PYTHON1,2002,600 RAINBOW TROUT350* RAINBOW TROUT300 IBEX NUBIAN4,0007,500 BARREN GROUND CARIBOU6,00018,000 COUGAR AND MULE DEER (Mounted Together)6,0009,300 BARASINGHA2,0003,300 BONGO8,00040,000 SITATUNGA3,50027,000 ORYX BEISA2,5006,500 DOMESTIC COW (DINKA TRIBE)2,0005,500 Total:$ 52,800$ 191,150 Replacement ValueValue Assigned Jack PerryLarry Blomquist LEOPARD$ 9,000$ 10,000 DESERT BIG HORN17,00018,000 DESERT BIG HORN17,00018,000 DESERT BIG HORN17,00018,000 OSTRICH (4 chicks)450800 PYTHON2,6003,000 RAINBOW TROUT RAINBOW TROUT IBEX NUBIAN7,5004,000 BARREN GROUND CARIBOU12,8005,200 COUGAR AND MULE DEER (Mounted Together)9,3007,000 BARASINGHA3,3005,000 BONGO32,0005,500 SITATUNGA7,0005,500 ORYX BEISA6,5004,000 DOMESTIC COW (DINKA TRIBE)5,5004,500 Total:$ 146,950$ 108,500 1991 Tax Ct. Memo LEXIS 564">*622 Tax Year 1983 Appraisal ReportAppraised Value Brian GaisfordJack Perry ELEPHANT TUSKS: (2)$ 23,000$ 28,400 HARTEBEEST LELWEL3,5009,500 HARTEBEEST LICHTENSTEIN3,5008,000 GRYSBOK: (2)3,4006,000 PYTHON1,200* WILD DOG1,8004,500 SITATUNGA3,5008,500 WHITE-TAILED DEER2,5003,500 JAGUAR5,0009,000 PRONGHORN ANTELOPE2,0003,500 RED DUIKER2,0005,600 BLACK LECHWE5,50020,000 BUSHBABY: (2)1,2001,200 NARWHAL TUSK6,0006,000 VERVET MONKEY4501,500 VERVET MONKEY4501,500 MONGOOSE400400 LARGE SPOTTED GENET600750 SERVEL CAT1,2002,500 SILVER BACKED JACKAL1,0002,500 CIVET8002,500 MONITOR LIZARD1,0001,000 BROWN BEAR: (2)18,00026,000 DALL SHEEP25,000* BLACK COYOTE1,8001,800 MARABOU STORK900900 HAMMERHEAD: (2)800800 SPOONBILL400400 GOLDEN EAGLE1,2004,000 GOLDEN EAGLE1,2004,000 BROWN HARRIER EAGLE1,5001,500 BROWN HARRIER EAGLE1,5001,500 RED-BILLED HORNBILL900900 AFRICAN GROUND HORNBILL750750 SACRED IBIS900900 LILAC ROBBERS: (3)750750 SPURWING GOOSE750750 SPURWING GOOSE800800 EGYPTIAN GOOSE750700 EGYPTIAN GOOSE700700 EGYPTIAN GOOSE700700 BROWN EARED PHEASANT600600 ELLIOT'S PHEASANT1,8001,800 TOPKNOP DOVE300300 GREATER BUSHBABY OR GALAGO1,2001,200 TARUCO450450 BLACK VULTURE900900 Total:$ 134,550$ 179,450 1991 Tax Ct. Memo LEXIS 564">*623 Replacement ValueValue Assigned Jack PerryLarry Blomquist ELEPHANT TUSKS: (2)$ 28,400$ 9,000 HARTEBEEST LELWEL7,0004,000 HARTEBEEST LICHTENSTEIN7,0004,000 GRYSBOK: (2)6,0006,000 PYTHON* WILD DOG4,5001,500 SITATUNGA7,0005,500 WHITE-TAILED DEER3,5002,900 JAGUAR9,0008,000 PRONGHORN ANTELOPE3,5002,500 RED DUIKER5,6001,788 BLACK LECHWE7,2004,500 BUSHBABY: (2)1,200* NARWHAL TUSK6,000 VERVET MONKEY1,500500 VERVET MONKEY1,500500 MONGOOSE400350 LARGE SPOTTED GENET7501,500 SERVEL CAT2,5001,000 SILVER BACKED JACKAL2,500800 CIVET2,5001,200 MONITOR LIZARD1,000200 BROWN BEAR:(2)26,00020,000 DALL SHEEP BLACK COYOTE1,800750 MARABOU STORK900343 HAMMERHEAD: (2)800 SPOONBILL400343 GOLDEN EAGLE4,0002,000 GOLDEN EAGLE4,0002,000 BROWN HARRIER EAGLE1,5001,486 BROWN HARRIER EAGLE1,5001,486 RED-BILLED HORNBILL900500 AFRICAN GROUND HORNBILL750500 SACRED IBIS900343 LILAC ROBBERS: (3)750 SPURWING GOOSE750343 SPURWING GOOSE800* EGYPTIAN GOOSE700343 EGYPTIAN GOOSE700343 EGYPTIAN GOOSE700343 BROWN EARED PHEASANT600343 ELLIOT'S PHEASANT1,800343 TOPKNOP DOVE300343 GREATER BUSHBABY OR GALAGO1,200 TARUCO450 BLACK VULTURE900343 Total:$ 161,650$ 88,233 1991 Tax Ct. Memo LEXIS 564">*624 Tax Year 1984 Appraisal ReportAppraised Value Brian GaisfordJack Perry ORIBI$ 800$ 2,850 WILDEBEEST COOKSAN4,0008,500 BLACK COBRA600600 BLUE DUIKER1,75014,000 PUKU3,50015,000 LORD DERBY ELAND5,00025,000 LECHWE KAFUE3,0008,000 SABLE ANTELOPE5,00020,000 SERVAL CAT1,0002,500 BUSHBUCK HARNESSES2,0007,500 ZEBRA3,5007,500 KLIPSPRINGER7503,750 PETERS DUIKER1,75030,000 PETERS DUIKER1,7505,600 LEOPARD4,0009,000 LIVINGSTONS ELAND4,5009,500 ELK4,500* CARIBOU BARREN GROUND4,500 REEDBUCK BOHAR NIGERIAN3,00040,000 WOLVERINE1,2001,500 OTTER800800 OTTER800800 COYOTE1,2001,200 FRANCOLIN450450 CROWNED CRANE800800 CROWNED CRANE800800 CROWNED CRANE800800 DUCK ZAMBIA400400 MARABOU STORK800800 RED FISH250 Total:$ 63,200$ 217,650 Replacement ValueValue Assigned Jack PerryLarry Blomquist ORIBI$ 2,850No Report WILDEBEEST COOKSAN6,000 BLACK COBRA600 BLUE DUIKER5,000 PUKU6,000 LORD DERBY ELAND14,000 LECHWE KAFUE5,900 SABLE ANTELOPE8,000 SERVAL CAT2,500 BUSHBUCK HARNESSES5,500 ZEBRA7,500 KLIPSPRINGER3,750 PETERS DUIKER5,600 PETERS DUIKER5,600 LEOPARD9,000 LIVINGSTONS ELAND9,500 ELK CARIBOU BARREN GROUND REEDBUCK BOHAR NIGERIAN5,700 WOLVERINE1,500 OTTER800 OTTER800 COYOTE1,200 FRANCOLIN450 CROWNED CRANE800 CROWNED CRANE800 CROWNED CRANE800 DUCK ZAMBIA400 MARABOU STORK800 RED FISH Total:$ 111,350 1991 Tax Ct. Memo LEXIS 564">*625 Tax Year 1985 Appraisal ReportAppraised Value Brian GaisfordJack Perry ATLANTIC PUFFIN$ 750$ 750 BLACK DUCK300300 BLACK LEOPARD5,0009,000 COYOTE (Cub)500500 DORCAS GAZELLE1,80019,000 EIDER-COMMON250250 EIDER KING250250 GUGUINEFOWL175175 HARLEQUIN DUCK250250 HARTEBEEST SENEGAL3,00018,000 LION5,50012,000 LORD DERBY ELAND7,00016,000 MOOSE SHIRAS5,5009,000 MURRE DUCK250250 NUTRIA300300 OLD SQUAW DUCK500500 REED BUCK2,50030,000 ROAN ANTELOPE3,50025,000 SCIMITAR HORNED ORYX3,500* SING SING WATERBUCK3,0009,000 STELLA EIDER DUCK250250 TUFTED PUFFIN500500 Total:$ 44,575$ 151,275 Replacement ValueValue Assigned Jack PerryLarry Blomquist ATLANTIC PUFFIN$ 750$ 343 BLACK DUCK300343 BLACK LEOPARD9,0004,500 COYOTE (Cub)500300 DORCAS GAZELLE5,9003,367 EIDER-COMMON250343 EIDER KING250343 GUGUINEFOWL175343 HARLEQUIN DUCK250343 HARTEBEEST SENEGAL6,800 LION12,00010,000 LORD DERBY ELAND14,00010,000 MOOSE SHIRAS7,2007,000 MURRE DUCK250343 NUTRIA300610 OLD SQUAW DUCK500343 REED BUCK5,7003,500 ROAN ANTELOPE5,0005,000 SCIMITAR HORNED ORYX SING SING WATERBUCK6,700 STELLA EIDER DUCK250343 TUFTED PUFFIN500343 Total:$ 76,575$ 47,707 1991 Tax Ct. Memo LEXIS 564">*626 Footnotes

2020-12-03 22:00:39.341133+00

http://media.ca11.uscourts.gov/opinions/pub/files/201814336.pdf

USCA11 Case: 18-14336 Date Filed: 12/03/2020 Page: 1 of 31 [PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 18-14336 ________________________ D.C. Docket No. 9:17-cr-80222-KAM-2 UNITED STATES OF AMERICA, Plaintiff-Appellant, versus LATECIA WATKINS, Defendant-Appellee. ________________________ Appeal from the United States District Court for the Southern District of Florida ________________________ (December 3, 2020) Before LUCK, ED CARNES, and MARCUS, Circuit Judges. ED CARNES, Circuit Judge: The Postal Service is as old as the United States, and during the past two- and-a-half centuries more than a million Americans have honorably served this  USCA11 Case: 18-14336 Date Filed: 12/03/2020 Page: 2 of 31 country through it. Among the more notable ones are Benjamin Franklin who was the first Postmaster General, and Abraham Lincoln who as a young man was postmaster in the village of New Salem, Illinois. Franklin and Lincoln did not betray the trust placed in them. The same cannot be said of Latecia Watkins. Watkins was a supervisor at the Boca Raton, Florida Post Office until her arrest in 2017 on charges stemming from the importation of more than five kilograms of cocaine into the United States with the intent to distribute it. She was caught red-handed and voluntarily confessed, but she convinced the district court to suppress the evidence of her guilt on Fourth Amendment grounds. This is the government’s interlocutory appeal from the district court’s suppression order and its order denying a motion for reconsideration. I. FACTS Two packages were sent into this country from Trinidad and Tobago. Both had cocaine hidden inside. And both were oddly addressed. One was addressed to “Margaret Simpson” at the Boca Raton Post Office, but with no post office box number. The other was addressed to “Jason Stanley” at a UPS Store that was a couple of hundred feet from the Boca Raton Post Office, but there was no box number included in that address either. The absence of box numbers was notable because neither a post office nor a UPS store accepts packages addressed for delivery there unless the addressee rents a box at that location. 2  USCA11 Case: 18-14336 Date Filed: 12/03/2020 Page: 3 of 31 At the international mail facility, after finding cocaine hidden in the two packages, law enforcement agents had removed the drugs from them, placed a GPS tracking device and sham cocaine into each package, and then put both packages into the mail stream, headed to their original destinations. The agents monitored the packages’ locations using both the inserted tracking devices and the Postal Service’s internal tracking system, which is routinely used on all packages. They also set up surveillance of the Boca Raton Post Office on the morning of August 11, 2017, when they expected the packages to be delivered. But that morning the GPS tracking devices the agents had put into both packages unexpectedly stopped working. That happened around 9:42 a.m. Unlike the GPS tracking devices used by law enforcement, the Postal Service’s routine package tracking system does not continuously pinpoint a package’s location as it moves or is stationary. Instead, it uses scans of a package’s unique tracking number to show the history of its journey: where the package came into the postal system, some of the stops along the way, and where it was finally delivered. The package is scanned at each stage, and unless it is tampered with, the tracking system automatically updates to the database the location, date, and time a package is manually scanned as it proceeds through the postal system to delivery. 3  USCA11 Case: 18-14336 Date Filed: 12/03/2020 Page: 4 of 31 A few of the codes that are routinely entered as a package is scanned while it proceeds along the way are important here. One of them is the code that occurs when a package is scanned as it comes into a post office en route to its final destination; the resulting code shows when the package arrived at the post office. Another code results from the scanning that occurs when the package is delivered to its intended address. That final code records the delivery time. One wrinkle is that if a package is addressed to a post office box but is too large to fit into that box, it is scanned into the tracking system with the code: “Scanned Notice Left.” That means the postal carrier left a notice slip in the recipient’s post office box, which she can take to the counter to exchange for her package. As for the two packages involved in this case, law enforcement agents could tell from the codes produced by the routine postal tracking system that both packages had been on a journey that was not routine. The package addressed to Jason Stanley was reported by the postal tracking system to have arrived (having been scanned in) at the post office at 8:33 a.m. that morning. The system also reported that the package had then been delivered to the UPS store near the post office at 11:06 a.m. But when the agents called the UPS store, they learned that no one named “Jason Stanley” rented a box there, and that no package addressed to that name had been delivered to the store. 4  USCA11 Case: 18-14336 Date Filed: 12/03/2020 Page: 5 of 31 The package tracking system also told an odd tale about the package addressed to Margaret Simpson. According to the system, that package had been delivered to the Boca Raton Post Office at 11:06 a.m. that same morning. But, as we’ve mentioned, there was no post office box number in the address on the package, no one named “Margaret Simpson” rented a post office box there, and without a rented box generally no one could receive mail or a package at that post office. Not only that, but even though the package was too large to fit into a post office box, it had not been scanned as “Scanned Notice Left.” And neither of the two packages of (sham) cocaine was anywhere to be seen. How could all of this be? To the agents all signs pointed to an inside job. A postal employee had to have been helping sneak the packages through the mail system, leaving only a few otherwise inexplicable traces. And the culprit most likely was not just any postal employee. The agents knew that a supervisor would have had what one agent called “unique access to certain aspects” of the scanning system. That unique access would allow a supervisor to scan the two packages in ways that indicated they had arrived and been delivered at times and places they had not been. From the facts they knew, the agents deduced that a supervisor had known that the packages would be arriving, had manipulated their scan history once they did arrive, and had taken the packages. 5  USCA11 Case: 18-14336 Date Filed: 12/03/2020 Page: 6 of 31 One postal worker stood out as a suspect: Latecia Watkins. She was a supervisor, which was important. She also had “some issues with the postal service,” and one of the agents believed that “her character fit this” crime. Because of their suspicions, the agents looked up Watkins in one of their databases and obtained her driver’s license information and home address. The agents’ suspicion of Watkins grew throughout the day that the packages were delivered. At one point that day, two of the agents entered the post office to see if they could find the packages. As they were entering, they encountered Watkins. Her response to seeing them, one of whom she knew to be a postal inspector, was dramatic. Even before they had spoken a word to her she appeared anxious, nervous, and scared –– so much so that her knees buckled and she looked like she was going to faint. When they asked Watkins if she was okay or if anything was wrong, she just stared at them. Only after the agents told her that they were there to get some documents (which was a ruse) did she finally calm down. Watkins’ extreme reaction to seeing them deepened the agents’ suspicions that she was involved in smuggling the drugs. The agents maintained surveillance at the post office until it closed at 6:30 p.m. that same day. As the supervisor in charge of closing the office that night, Watkins was the last employee to leave. No agent followed her or otherwise attempted to surveil her. With the post office closed, the agents decided to enter 6  USCA11 Case: 18-14336 Date Filed: 12/03/2020 Page: 7 of 31 and search for the packages because they had not noticed anyone leave there with the packages during the day. They expected their search of the post office to take a couple of hours. As the agents searched the post office, they did not have a fixed plan for what they would do if they did not find the packages there. But, later in testimony that the magistrate judge credited, the agents stated that their next step “probably” would have been to conduct a knock and talk at Watkins’ house, which was located at an address they had already looked up before the tracking device unexpectedly came back to life. The agents would have done a knock and talk anyway because she was their “prime suspect” and, in fact, their only suspect. They did not have “any other leads.” As one agent testified, a knock and talk at Watkins’ house “was the plan being discussed,” and “that was the plan [they] had begun to formulate” and were in the process of formulating when the tracking device began to function again. They had felt pressure to “act[] quickly” because “it would have been exponentially harder to locate the packages” had they not. One of the agents testified that if the device had not come back on they would have done the knock and talk that night anyway after searching the post office instead of waiting until the next day to do it. 7  USCA11 Case: 18-14336 Date Filed: 12/03/2020 Page: 8 of 31 But, as we have mentioned, while the search at the post office continued and the agents were discussing their next step, one of the two tracking devices unexpectedly began working again at 8:29 p.m. (Both devices had gone silent nearly eleven hours earlier, around 9:42 a.m. that morning.) The device indicated that it was in a location that the agents immediately recognized as the area where Watkins lived, and they used a Google search to confirm that the device was at her house. At that point, they stopped searching the post office and went immediately to Watkins’ house. At least six law enforcement agents drove there in unmarked vehicles. At least five of the agents approached the front of Watkins’ house and three of those five approached her front door wearing tactical vests over civilian clothes. They arrived at the door at around 9:08 p.m. One of the agents knocked on Watkins’ door in a “normal” way, without pounding on it. Before the door opened, at least one of the three agents at the door could smell marijuana, and after Watkins opened the door all three of them could smell marijuana coming from inside the house. At that point, Agent Rivera identified herself as a law enforcement officer and calmly asked Watkins, “Do you know why we are here[?]” In response, Watkins “just put her head down” and answered either, “Yes, the boxes,” or, “The packages.” 8  USCA11 Case: 18-14336 Date Filed: 12/03/2020 Page: 9 of 31 Agent Rivera then asked Watkins to step outside the house so they could talk. She did so. They walked to the end of the driveway, and Agent Rivera asked her, “You know why we [are] here about the boxes.” Again, Watkins said “yes.” Then Agent Rivera asked her, “Can I take a look at the boxes? Can you show me wh[ere] they are?” At that point, Watkins turned and, without saying anything, began walking back to her house. Though Watkins had not expressly said so, Agent Rivera interpreted her actions as consent to follow her into the house. Before they actually went into the house, two other agents stopped them so a security sweep could be completed inside the house. The sweep was in response to the smell of marijuana and the agents’ concern that the evidence of the marijuana might be destroyed. The agents also planned to apply for a search warrant based on that smell, and one of them did get a warrant after the sweep, but no additional evidence relevant to this case was located through the warrant. During the sweep, which took only a few minutes, the agents found marijuana in plain view. They also saw in plain view two packages lying on the floor in Watkins’ bedroom, which they recognized as being the ones with the fake drugs in them. Once the security sweep was done, Agent Rivera followed Watkins to her bedroom where the packages were. Watkins, who was not in handcuffs, signed written Garrity and Miranda waiver forms, consented to a search of her cellphone, and in a recorded interview made several incriminating statements. See Garrity v. 9  USCA11 Case: 18-14336 Date Filed: 12/03/2020 Page: 10 of 31 New Jersey, 385 U.S. 493 (1967); Miranda v. Arizona, 384 U.S. 436 (1966). Watkins explained to the agents how she had met her co-defendant, as well as their scheme for him to mail drugs into the country and for her to use her position to get the drugs through the post office without detection. Watkins also told the agents that her co-defendant’s telephone was going straight to voicemail when she called it, that she had no other way to get in touch with him, and that she thought he had already been arrested. II. PROCEDURAL HISTORY Watkins was charged with four crimes. 1 She moved to suppress “all physical evidence and statements obtained as a result of law enforcement’s warrantless installation of and surveillance using tracking devices hidden inside two postal packages.” A. The Magistrate Judge’s Report and Recommendation Watkins’ motion to suppress was referred to Magistrate Judge William Matthewman. He held an evidentiary hearing, which included four government witnesses, three of whom were law enforcement agents who had been involved in 1 Those charges were: Conspiracy to import five kilograms or more of cocaine into the United States, in violation of 21 U.S.C. §§ 963 , 952(a), and 960(b)(1)(B) (Count 1); importation of five kilograms or more of cocaine into the United States, in violation of 21 U.S.C. §§ 952 (a) and 960(b)(1)(B) (Count 2); conspiracy to possess five kilograms or more of cocaine with the intent to distribute, in violation of 21 U.S.C. §§ 846 , 841(a)(1), and 841(b)(1)(A) (Count 3); and attempted possession of five kilograms or more of cocaine with attempt to distribute, in violation of 21 U.S.C. §§ 846 , 841(a)(1), and 841(b)(1)(A) (Count 4). 10  USCA11 Case: 18-14336 Date Filed: 12/03/2020 Page: 11 of 31 the search of the post office and the knock and talk at Watkins’ house. Watkins called two of her own witnesses; they had been with her in the house when the law enforcement agents arrived. The judge issued a report recommending that Watkins’ motion be denied. In it, he expressly and repeatedly found that the testimony of the law enforcement agents was credible in all respects. He also found that Watkins’ witnesses were not credible. The report gave several reasons for recommending denial of the motion to suppress. It said that the initial search and seizure of the two packages was lawful, and that the monitoring of the one tracking device that was functioning inside Watkins’ house was also lawful. In the alternative, the report concluded that even without the reactivated tracking device, law enforcement had reasonable suspicion to do a knock and talk at Watkins’ house that night, and that they would have gone to her house to do it anyway. According to the report, Watkins consented to the agents entering her home, and her consent and all of her incriminating statements were voluntary. Finally, it concluded that after Watkins opened the door, probable cause and exigent circumstances justified a security sweep of the house because of the marijuana smell and concerns about the destruction of evidence as well as for the safety of the agents. 11  USCA11 Case: 18-14336 Date Filed: 12/03/2020 Page: 12 of 31 B. The District Court’s Orders Watkins objected to the magistrate judge’s report and recommendation. Without conducting a new evidentiary hearing, the district court issued an order sustaining Watkins’ objections and granting her motion to suppress. The court agreed with the magistrate judge that the initial search and placement of the tracking devices by the government was lawful. But relying on the Supreme Court’s Karo and Jones decisions, the court concluded that the government had to have a warrant to monitor the tracking device inside Watkins’ house because it was no longer open to visual surveillance from a public place and Watkins had a justified privacy interest in her house. See United States v. Jones, 565 U.S. 400 (2012); United States v. Karo, 468 U.S. 705 (1984). Because the agents did not have a warrant at that time, the court concluded that Watkins’ Fourth Amendment rights were violated by the government’s warrantless monitoring of the tracking device when it reactivated and showed them that the packages were in her house. The district court also ruled that, even though Watkins’ consent to the search of her home was voluntary, it was tainted because it was the product of the unlawful monitoring of the tracking device and, for that reason, the attenuation exception to the exclusionary rule did not apply. The court acknowledged that the magistrate judge had “found that even without the tracking of the box, law enforcement would have conducted a ‘knock and announce.’” But the court 12  USCA11 Case: 18-14336 Date Filed: 12/03/2020 Page: 13 of 31 viewed that finding as irrelevant “in view of the fact that law enforcement did, in fact, track the box with the monitoring device which led them to [Watkins’] residence.” The government filed a motion for reconsideration of the district court’s order, contending that the inevitable discovery exception made the evidence admissible. It noted that the court had declined to consider the inevitability of the discovery based on the court’s finding that law enforcement had illegally tracked one of the packages. But, as the government pointed out, “analysis under the inevitable discovery doctrine presupposes an illegal search did, in fact, occur, [and] considers whether there is a reasonable probability that the evidence would otherwise have been discovered by lawful means.” It argued that the suppressed evidence would inevitably have been discovered because, even before the tracking device came back to life, Watkins was the sole suspect and the agents had already searched for and found her address; and the agents testified that going to Watkins’ house that same night to do a knock and talk was probably the next step in their investigation. They had no other leads. The district court denied the motion to reconsider. First, the court stated that it was “purely speculative to conclude” that law enforcement agents would have gone to Watkins’ house after they completed their search at the post office, and that it was “purely speculative to conclude” Watkins would have responded in the 13  USCA11 Case: 18-14336 Date Filed: 12/03/2020 Page: 14 of 31 same way if they had approached her house “at a different time and under different circumstances.” Second, the court ruled that the inevitable discovery exception did not apply because it found that although the lawful means of obtaining the evidence — the knock and talk — was being considered, it “was not actually being pursued when the unlawful tracking occurred, and law enforcement abandoned their search of the post office to approach” Watkins’ house. III. ANALYSIS In its brief to this Court, the government concedes that law enforcement violated Watkins’ Fourth Amendment rights by the warrantless monitoring of the tracking device once it reactivated inside Watkins’ house. We are not bound to accept that concession, see Roberts v. Galen of Va., Inc., 525 U.S. 249 , 253 (1999), but for purposes of this case we will assume that the warrantless monitoring of the signal from the package once it entered the house was a violation of the Fourth Amendment. We can make that assumption because it does not affect the bottom line of our decision. A. The Exclusionary Rule and the Inevitable Discovery Exception A Fourth Amendment violation can trigger the exclusionary rule, which requires courts to suppress illegally obtained evidence, but that rule has several exceptions. Exceptions exist because the exclusionary rule “has always been our last resort, not our first impulse.” Utah v. Strieff, 136 S. Ct. 2056 , 2061 (2016) 14  USCA11 Case: 18-14336 Date Filed: 12/03/2020 Page: 15 of 31 (quotation marks omitted). We are not quick to “indiscriminate[ly] appl[y]” the rule because it “generates substantial social costs, which sometimes include setting the guilty free and the dangerous at large” and which take a “costly toll upon truth- seeking and law enforcement objectives.” United States v. Delancy, 502 F.3d 1297 , 1314 (11th Cir. 2007) (quoting Hudson v. Michigan, 547 U.S. 586 , 591 (2006)). Instead, we reserve the exclusionary rule “‘only [for] where its remedial objectives are thought most efficaciously served — that is, where its deterrence benefits outweigh its substantial social costs.’” Id. (quoting Hudson, 547 U.S. at 591 ). And to justify application of the rule those deterrence benefits cannot be merely incremental, marginal, or simply possible; they must be substantial and must actually outweigh the costs. Herring v. United States, 555 U.S. 135 , 141, 147–48 (2009). One of the exceptions to the exclusionary rule is for inevitable discovery, which “allows for the admission of evidence that would have been discovered even without the unconstitutional source.” Strieff, 136 S. Ct. at 2061. That exception is akin to the harmless error rule that is applied for constitutional violations generally, a kinship that the Supreme Court pointed out in its Nix opinion. See Nix v. Williams, 467 U.S. 431 , 443 n.4 (1984) (“The ultimate or inevitable discovery exception to the exclusionary rule is closely related in purpose to the harmless- error rule . . . .”); see generally United States v. Roy, 855 F.3d 1133 , 1167 (11th 15  USCA11 Case: 18-14336 Date Filed: 12/03/2020 Page: 16 of 31 Cir. 2017) (en banc) (recognizing that “the harmless error doctrine is alive and well” because it “serves vital interests and promotes public respect for the criminal process”). When there is a reasonable probability that the evidence discovered by a violation of the Fourth Amendment would have turned up anyway, the violation is harmless and in that circumstance “the ‘public interest in having juries receive all probative evidence of a crime’ outweighs the need to discourage police misconduct.” Jefferson v. Fountain, 382 F.3d 1286 , 1296 (11th Cir. 2004) (quoting Nix, 467 U.S. at 443 ). The Supreme Court has explained that the purpose of the inevitable discovery exception is to “put[] the police in the same, not a worse, position tha[n] they would have been in if no police error or misconduct had occurred.” Nix, 467 U.S. at 443 ; accord United States v. Johnson, 777 F.3d 1270 , 1275 (11th Cir. 2015). Excluding evidence where it would have been discovered anyway “would not restore the parties to their previous positions and would upset the careful weighing of competing interests underlying the exclusionary rule.” Jefferson, 382 F.3d at 1296 . It would “put the police in a worse position than they would have been in if no unlawful conduct had transpired,” and would “fail[] to take into account the enormous societal cost of excluding truth in the search for truth in the administration of justice.” Nix, 467 U.S. at 445 . And it “would place courts in the 16  USCA11 Case: 18-14336 Date Filed: 12/03/2020 Page: 17 of 31 position of withholding from juries relevant and undoubted truth that would have been available to police absent any unlawful police activity,” which would “add[] nothing to either the integrity or fairness of a criminal trial.” Id. at 445–46. Illegally obtained evidence is admissible under the inevitable discovery exception if the government can make two showings. One is a showing that if there had been no constitutional violation there is “a reasonable probability that the evidence in question would have been discovered by lawful means.” Johnson, 777 F.3d at 1274 (quotation marks omitted); accord United States v. Terzado-Madruga, 897 F.2d 1099 , 1114 (11th Cir. 1990). That does not require establishing an “absolute inevitability of discovery but simply a reasonable probability that the evidence in question would have been discovered other than by the tainted source.” United States v. Brookins, 614 F.2d 1037 , 1042 n.2 (5th Cir. 1980).2 The other requirement the government must meet is “that the lawful means which made discovery inevitable were being actively pursued prior to the occurrence of the illegal conduct.” Johnson, 777 F.3d at 1274 (quotation marks omitted). But “active pursuit” in this sense does not “require that police have already planned the particular search that would obtain the evidence” but only “that the police would 2 In Bonner v. City of Prichard, 661 F.2d 1206 , 1209 (11th Cir. 1981) (en banc), we adopted as binding precedent all decisions of the former Fifth Circuit issued before October 1, 1981. 17  USCA11 Case: 18-14336 Date Filed: 12/03/2020 Page: 18 of 31 have discovered the evidence by virtue of ordinary investigations of evidence or leads already in their possession.” Id. (quotation marks omitted). B. Application of the Inevitable Discovery Exception After conducting an evidentiary hearing in this case, the magistrate judge found the three agents to be not just credible but “very credible” and credited their testimony. (The judge found the two defense witnesses whose testimony went to another issue not credible.) The report and recommendation concluded that the motion to suppress should be denied based on the inevitable discovery exception. Watkins’ objections brought the matter before the district court. Without hearing any testimony itself, the district court twice rejected the government’s inevitable discovery argument. Both times it erred. 1. The Reasonable Probability that the Evidence Would Have Been Discovered Anyway In its initial order suppressing the evidence, the only place that the district court addressed the magistrate judge’s finding that the evidence would have been found even without the Fourth Amendment violation is in a two-sentence footnote that stated: The Court recognizes that the Magistrate Judge found that even without the tracking of the box, law enforcement would have conducted a “knock and announce” of Defendant’s residence in any event. However, in view of the fact that law enforcement did, in fact, track the box with the monitoring device which led them to Defendant’s 18  USCA11 Case: 18-14336 Date Filed: 12/03/2020 Page: 19 of 31 residence, and this Court has concluded a warrant was required, the analysis required by Delancy and Santa must be performed. Doc. 113 at 9 n.3. The district court cited the parts of Delancy and Santa that deal with whether consent to search is sufficiently attenuated from a constitutional violation to be voluntary. See Doc. 113 at 9–10 (citing Delancy, 502 F.3d at 1308–10; United States v. Santa, 236 F.3d 662 , 676–77 (11th Cir. 2000)). It did not cite the inevitable discovery exception part of Delancy, and Santa did not mention inevitable discovery. More fundamentally, the fact that a constitutional violation occurred never precludes applying the exception. To the contrary, the inevitable discovery exception does not even come up unless there is a real or assumed constitutional violation to begin with. There must have been a violation for it to make sense to ask whether the violation made a difference. As the Supreme Court has stated: “It is clear that the cases implementing the exclusionary rule begin with the premise that the challenged evidence is in some sense the product of illegal governmental activity.” Nix, 467 U.S. at 444 (quotation marks omitted). The Court followed up that observation of the obvious by stating: “[o]f course, this does not end the inquiry,” and if that evidence would have been discovered anyway by lawful means “the deterrence rationale has so little basis that the evidence should be 19  USCA11 Case: 18-14336 Date Filed: 12/03/2020 Page: 20 of 31 received.” Id. (footnote omitted).3 Anything else, the Court stressed, “would reject logic, experience, and common sense.” Id. In its motion for reconsideration, the government pointed out that flaw in the district court’s reasoning, and it asked the court to rule that the inevitable discovery exception did apply. In its order denying reconsideration, the court did not insist on its earlier rationale, but stated a new one: “The Court rejects the premise of the Government’s motion that, absent the tracking of the package as being located in Defendant’s residence, the law enforcement officers would have conducted the ‘knock and announce’ and the events would have unfolded in the same way.” That replacement reasoning is flawed in three respects. First, it misstates the predictive standard. As we have already pointed out, under binding precedent the standard is not whether the evidence in fact “would have” been discovered, but whether there is a reasonable probability that it would have been. Johnson, 777 3 The footnote at the end of that quotation was about the measure of proof required to establish inevitable discovery. See Nix, 467 U.S. at 444 n.5. Nix was a federal habeas case involving an Iowa conviction, and that state’s law required that inevitable discovery be shown by a preponderance of evidence. Id. at 437–38. The defendant contended that the burden should be higher, that it should be proof by clear and convincing evidence. Id. at 439–40. The Supreme Court rejected that contention, holding that proof by a preponderance was enough. Id. at 444 n.5. The Court did not, however, have before it the issue of whether a reasonable probability that the challenged evidence would have been found anyway was enough. See generally id. It said nothing about that issue in Nix or any other decision. We have consistently held that the government is required to show a reasonable probability that the evidence in question would have been discovered by lawful means. Johnson, 777 F.3d at 1274; Jefferson, 382 F.3d at 1296 ; Brookins, 614 F.2d at 1042 n.2, 1048. That standard was first announced by our predecessor Court in Brookins, and as we stated in Jefferson: “Since the Nix decision, we have continued to follow the Brookins decision, which is entirely consistent with it.” 382 F.3d at 1296 . 20  USCA11 Case: 18-14336 Date Filed: 12/03/2020 Page: 21 of 31 F.3d at 1274; Jefferson, 382 F.3d at 1296 ; Terzado-Madruga, 897 F.2d at 1114 ; Brookins, 614 F.2d at 1042 n.2. In concluding that the inevitable discovery exception did not apply, the district court used the wrong standard. Second, the district court’s reasoning is wrong because it is based on the district court’s own findings of fact instead of those of the magistrate judge. The magistrate judge heard all of the testimony and was in a position to make credibility determinations, and he made findings based on those credibility choices. The district court did not hear any of the testimony and without conducting its own evidentiary hearing was in no position to substitute its own credibility determinations and findings of fact for those of the magistrate judge. It abused its discretion in doing so. See United States v. Powell, 628 F.3d 1254 , 1256–57 (11th Cir. 2010) (recognizing that “a district court abuses its discretion when it squarely reject[s] the magistrate judge’s findings of fact and credibility determinations and substitute[s] its own, without hearing so much as a single witness”) (alterations in original) (quotation marks omitted); Amlong & Amlong, P.A. v. Denny’s, Inc., 500 F.3d 1230 , 1245 (11th Cir. 2007) (noting that our decisions “have unambiguously and repeatedly observed that a district court may not reject a magistrate judge’s factual and credibility findings” that were based on testimony the magistrate judge heard, unless the district court conducts its own evidentiary hearing). 21  USCA11 Case: 18-14336 Date Filed: 12/03/2020 Page: 22 of 31 Third, and in any event, the district court clearly erred in finding that the government had not established a reasonable probability that if the tracking device had not reactivated and been monitored, the agents would have conducted a knock and talk at Watkins’ house that night anyway and with the same result. The evidence the magistrate judge relied on to reach the opposite finding bears repeating. The oddly addressed packages had been received at the post office and taken out of the mail stream by an insider. The person who had done that had also manipulated the post office’s internal scan-and-track system to evade detection. To do that, the culprit more than likely was a supervisor. Watkins was a supervisor and was on duty that day. She had also had “issues with the postal service.” And when she encountered two of the agents, one of whom she knew to be a postal inspector, in the post office that day, she acted in a highly suspicious way. Before the two agents said anything to her, Watkins appeared anxious, nervous, and scared, her knees buckled, and she seemed ready to faint. When the agents asked if she was okay, she just stared at them. It is no wonder that Watkins was the lead suspect — in fact, the only one. And it is no wonder that while conducting the search of the post office after it closed, the agents discussed going to Watkins’ house and conducting a knock and talk if they did not find the packages at the post office. All three agents testified, without dispute, that even if the tracking device had not come back to life 22  USCA11 Case: 18-14336 Date Filed: 12/03/2020 Page: 23 of 31 and let them know where one of the packages was, they probably still would have gone to Watkins’ house and done the knock and talk just like they did after the tracking device reactivated. They had, after all, already obtained Watkins’ address before they knew they would hear from the device again. Despite all of those facts, which the district court was not at liberty to ignore, the district court dismissed as “purely speculative” the magistrate judge’s finding that even if the tracking device had not reactivated, the agents still would have gone to Watkins’ house that night and conducted a “knock and announce.” The only authority the district court gave for dismissing as pure speculation the magistrate judge’s finding about inevitable discovery is the statement in Nix that “inevitable discovery involves no speculative elements but focuses on demonstrated historical facts capable of ready verification or impeachment.” Nix, 467 U.S. at 444 n.5. But that cuts against what the district court did, not in favor of it, because the magistrate judge’s subsidiary and ultimate findings were not based on speculative elements. They were based on historical facts proven by the consistent testimony of three agents, each of whom had personal knowledge of the facts. All of that testimony was subject to verification or impeachment through the usual means employed at evidentiary hearings: examination, cross-examination, and the 23  USCA11 Case: 18-14336 Date Filed: 12/03/2020 Page: 24 of 31 opportunity to present other evidence. The findings the district court dismissed were not based on speculation, much less “pure speculation.” The magistrate judge’s finding of inevitable discovery incorporates an implicit subsidiary finding that if the knock and talk had taken place one or two hours later than it did, Watkins would have reacted the same way she reacted earlier, which would have resulted in discovery of the same incriminating evidence. See Calixto v. Lesmes, 909 F.3d 1079 , 1093 (11th Cir. 2018) (“We recognize that in the context of a bench trial we can ‘infer[ ] from a . . . court’s explicit factual findings and conclusion [other] implied factual findings that are consistent with its judgment although [they are] unstated.”) (alterations in original) (citations omitted); United States v. Robertson, 493 F.3d 1322 , 1334 (11th Cir. 2007) (inferring that the trial court made implicit findings consistent with its conclusion); United States v. $242,484.00, 389 F.3d 1149 , 1154 (11th Cir. 2004) (“[W]e and other federal appellate courts have inferred from a [trial] court’s explicit factual findings and conclusion implied factual findings that are consistent with its judgment although unstated.”); see generally Hightower v. Terry, 459 F.3d 1067 , 1072 n.9 (11th Cir. 2006) (“[A] trial court’s dispositive ruling may contain implicit findings, which, though unstated, are necessary to that ruling.”). The district court rejected that implicit finding of the magistrate judge as well, with the same “purely speculative” characterization it applied to the judge’s 24  USCA11 Case: 18-14336 Date Filed: 12/03/2020 Page: 25 of 31 explicit findings. But, like the explicit findings of the magistrate judge, this implicit one was not speculative. It is undisputed that when the agents went to her house after the tracking device reactivated, Watkins was anxious and nervous; she had not been able to get in touch with her co-conspirator; she thought that he had been arrested, leaving her all alone in the crime. The record reveals that he was not in the country at the time, meaning that the person most likely to retrieve the packages from her could not have done so and, as a result, they likely still would have been in her house later that evening. Within moments after the agents knocked on her door, Watkins began making incriminating statements and let the agents into her house where the packages were. There is no reason at all to believe that an hour or two later that night her reaction to seeing the agents would have changed, that she would not have been anxious and nervous, that she would not have feared her co-conspirator had been caught, or that she would for some other reason not have made the statements she did or let the agents into the house as she did an hour or two earlier. The magistrate judge not only found that “even without the tracker notification to law enforcement that the package was located in Defendant’s residence, the agents would have gone to Defendant’s home and conducted a knock and talk in this 25  USCA11 Case: 18-14336 Date Filed: 12/03/2020 Page: 26 of 31 case,” the context in which that finding appears makes it clear that the judge also found the agents would have done it that same evening.4 Labeling application of the facts underlying an inevitable discovery conclusion as speculation, as the district court did, may have reflected some discomfort with the lack of certainty about what would have happened if something that happened had not happened. But, as we have said: “Certainty is illusory in human affairs.” United States v. Roy, 855 F.3d 1133 , 1167 (11th Cir. 2017) (en banc). Which probably is why the law seldom, if ever, requires certainty. Take, for example, the prejudice element of an ineffective assistance of counsel claim. For at least a third of a century it has been firmly established that “actual ineffectiveness claims alleging a deficiency in attorney performance are subject to a general requirement that the defendant affirmatively prove prejudice.” Strickland v. Washington, 466 U.S. 668 , 693 (1984). And it has also been 4 The government argued to the magistrate judge that it had “established that . . . law enforcement would have gone to [Watkins’] house that evening to conduct a knock and talk.” (Emphasis added.) The judge found that “law enforcement in the case at hand clearly had reasonable suspicion to conduct a knock and talk at [Watkins’] home on the evening of August 11, 2017, even if” the tracking device had not shown them that one of the packages was in Watkins’ house. (Emphasis added.) Thereafter, the magistrate judge found that even without the tracking device notification “the agents would have gone to [Watkins’] home and conducted a knock and talk in this case.” There was sufficient evidence to support the finding that it would have been done that night. The agents who testified at the evidentiary hearing were unanimous that they probably would have conducted a knock and talk at Watkins’ house anyway, and they were discussing doing that when the device reactivated. Not only that, but they felt an urgency to do it before the packages became harder to retrieve. 26  USCA11 Case: 18-14336 Date Filed: 12/03/2020 Page: 27 of 31 established just as firmly and for just as long that to meet the prejudice requirement the defendant or petitioner must establish: “there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt.” Id. at 695 (emphasis added); see also id. (holding that a capital defendant claiming ineffective assistance at the sentence stage must show a reasonable probability of a sentence less than death but for counsel’s deficient performance); id. at 694 (pointing out that the reasonable probability of a different result standard is also “the test for materiality of exculpatory information not disclosed to the defense by the prosecution”) (citing United States v. Agurs, 427 U.S. 97 , 104, 112– 113 (1976)). Not certainty, but a reasonable probability. Applying the reasonable probability standard in ineffective assistance of counsel cases and in cases involving the government’s suppression of exculpatory evidence is no less “speculative” than applying a reasonable probability standard in inevitable discovery exception cases in general and this one in particular. Yet the reasonable probability standard has been applied in more than a hundred thousand ineffective assistance of counsel cases since it was announced in the Strickland decision more than a third of a century ago. 5 If application of the standard 5 At last check, the parts of the Strickland decision discussing the prejudice component, including the reasonable probability standard, had been cited by more than 106,000 cases. (That number comes from a Westlaw search on December 3, 2020 for all cases listed as citing the part of the Strickland opinion organized under headnote 19.) 27  USCA11 Case: 18-14336 Date Filed: 12/03/2020 Page: 28 of 31 involves speculation, there’s been a whole lot of speculating going on. See Roy, 855 F.3d at 1167 (discussing the reasonable probability measure used in deciding the prejudice component of ineffective assistance claims and stating that: “If that is speculation, then speculation is rampant in the nation’s courts”). The law is comfortable with the reasonable probability standard. To say that applying that standard involves “speculation” is to use the term “in [the] broad sense, which equates with the lack of certainty,” and if the lack of certainty is speculation, it “is not impermissible; it is inevitable.” Id. at 1166. What we are talking about is not “pure speculation,” as the district court put it, but “the exercise of a court’s best judgment,” id. at 1167, which is part and parcel of the act of judging. 2. Evidence or Leads Already in the Possession of Law Enforcement Alternatively, or additionally, the district court ruled that the inevitable discovery exception was inapplicable because under our Satterfield decision the lawful means of obtaining the evidence must actually have been pursued before the constitutional violation occurred. See United States v. Satterfield, 743 F.2d 827 (11th Cir. 1984), superseded by statute on other grounds as stated in United States v. Edwards, 728 F.3d 1286 , 1292 & n.2 (11th Cir. 2013). The Satterfield decision did say that in the circumstances of that particular case. Id. at 846 . The circumstances were that the lawful means by which the evidence in a house would 28  USCA11 Case: 18-14336 Date Filed: 12/03/2020 Page: 29 of 31 have been discovered was a search warrant that had not been obtained until after the defendant’s rights were violated. See id. at 846–47. We stressed the importance of that fact, explaining: “Because a valid search warrant nearly always can be obtained after the search has occurred, a contrary holding would practically destroy the requirement that a warrant for the search of a home be obtained before the search takes place. Our constitutionally-mandated preference for substituting the judgment of a detached and neutral magistrate for that of a searching officer would be greatly undermined.” Id. (citation omitted). But we have since made clear Satterfield’s requirement that the alternative means of discovery be actively underway at the time of the violation is limited to cases in which the alternative means was a search warrant. See Johnson, 777 F.3d at 1274–75. As we have explained: “In Satterfield, we were concerned with the efficacy of the warrant requirement. . . . Any concern about circumnavigating warrants is misplaced here, where no one argues that [the officer] would have applied for a search warrant.” Id. at 1276. Johnson held that in cases where the means by which the challenged evidence would have been discovered anyway is not a search warrant, “active pursuit” does not require the government to “have already planned the particular [legal] search that would obtain the evidence.” Id. at 1274. Instead, as we held in Johnson, the government must show only “that the police would have discovered the evidence by virtue of ordinary investigations of 29  USCA11 Case: 18-14336 Date Filed: 12/03/2020 Page: 30 of 31 evidence or leads already in their possession.” Id. (quotation marks omitted) (emphasis added). We stated that requirement is enough to serve the purpose of the active pursuit requirement, which is to “exclude evidence that was not being sought in any fashion.” Id. at 1275. The evidence incriminating Watkins would have been discovered through ongoing investigation and the pursuit of leads that were already in the possession of the agents at the time the device started functioning and they monitored it. She was their lead suspect and for good reason. See supra at pp. 22–23. They had already looked up information about her and had obtained her address. They were discussing doing a knock and talk at her house, which would not have required a search warrant. Not only was it their probable next step, but at the moment the tracking device reactivated, they were actively discussing doing it. And it is not as if the knock and talk is a novel or unfamiliar investigative technique: collectively the agents had done hundreds of them. IV. CONCLUSION For the reasons we have discussed, not applying the inevitable discovery exception in this case would “put the police in a worse position than they would have been in if no unlawful conduct had transpired,” and would “fail[] to take into account the enormous societal cost of excluding truth in the search for truth in the administration of justice.” Nix, 467 U.S. at 445 . It “would place [us] in the 30  USCA11 Case: 18-14336 Date Filed: 12/03/2020 Page: 31 of 31 position of withholding from juries relevant and undoubted truth that would have been available to police absent any unlawful police activity.” Id. It would do that while “add[ing] nothing to either the integrity or fairness of a criminal trial.” Id. at 446 . The order suppressing the challenged evidence is REVERSED. 31

2020-12-03 22:00:43.847136+00

http://www.cadc.uscourts.gov/internet/judgments.nsf/517898CF4BFFBC9B852586330073941C/$file/20-5190-1874313.pdf

United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT ____________ No. 20-5190 September Term, 2020 1:20-cv-00031-APM Filed On: December 3, 2020 Martin Reiner, Appellant v. John Roberts, et al., Appellees ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA BEFORE: Rogers and Walker, Circuit Judges; Sentelle, Senior Circuit Judge JUDGMENT This appeal was considered on the record from the United States District Court for the District of Columbia and on the brief and appendix filed by appellant. See Fed. R. App. P. 34(a)(2); D.C. Cir. Rule 34(j). It is ORDERED AND ADJUDGED that the district court’s dismissal order, filed April 3, 2020, and the district court’s subsequent minute orders denying reconsideration, filed April 29, 2020, May 19, 2020, and June 5, 2020, be affirmed. The district court correctly concluded that it lacks subject matter jurisdiction over appellant’s complaint. Tooley v. Napolitano, 586 F.3d 1006 , 1009 (D.C. Cir. 2009) (“A complaint may be dismissed on jurisdictional grounds when it is ‘patently insubstantial,’ presenting no federal question suitable for decision.”) (quoting Best v. Kelly, 39 F.3d 328 , 330 (D.C.Cir.1994)). And the Rooker-Feldman doctrine is applicable to appellant’s claim seeking review of his disbarment by the California Supreme Court. See Gray v. Poole, 275 F.3d 1113 , 1119 (D.C. Cir. 2002) (“The Rooker-Feldman doctrine prevents lower federal courts from hearing cases that amount to the functional equivalent of an appeal from a state court.”); Reiner v. California, 612 F. App'x 473 , 474 (9th Cir. 2015) (holding that the district court properly dismissed appellant’s claim under the Rooker-Feldman doctrine where the claim challenged a prior order of suspension by the California Supreme Court); Scott v. Frankel, No. 15-5028, 2015 WL 4072075 , at *1 (D.C. Cir. June 8, 2015) (declining to apply a fraud exception to the Rooker-Feldman doctrine because “appellant has not suggested any reason why he could not have presented his claims of fraud in the state court disciplinary proceeding.”).  United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT ____________ No. 20-5190 September Term, 2020 Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after resolution of any timely petition for rehearing or petition for rehearing en banc. See Fed. R. App. P. 41(b); D.C. Cir. Rule 41. Per Curiam FOR THE COURT: Mark J. Langer, Clerk BY: /s/ Michael C. McGrail Deputy Clerk Page 2

2020-12-03 22:01:27.566715+00

http://www.cit.uscourts.gov/sites/cit/files/20-173.pdf

Slip Op. 20- UNITED STATES COURT OF INTERNATIONAL TRADE MANCHESTER TANK & EQUIPMENT CO. AND WORTHINGTON INDUSTRIES, Plaintiffs, v. Before: Mark A. Barnett, Judge UNITED STATES, Court No. 19-00147 Defendant, and SAHAMITR PRESSURE CONTAINER PLC., Defendant-Intervenor. [Sustaining the U.S. Department of Commerce’s final determination in the antidumping duty investigation of steel propane cylinders from Thailand.] Dated:'HFHPEHU Paul C. Rosenthal, Kelley Drye & Warren LLP, of Washington, DC, argued for Plaintiffs. With him on the brief were David C. Smith, Jr., Matthew G. Pereira, and R. Alan Luberda. Alison S. Vicks, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of Washington, DC, argued for Defendant. With her on the brief were Joseph H. Hunt, Assistant Attorney General, Jeanne E. Davidson, Director, and Tara K. Hogan, Assistant Director. Of counsel on the brief was Vania Wang, Attorney, Office of the Chief Counsel for Trade Enforcement and Compliance, U.S. Department of Commerce, of Washington, DC. Ron Kendler, White & Case LLP, of Washington, DC, argued for Defendant-Intervenor. With him on the brief was David E. Bond. Court No. 19-00147 Page 2 Barnett, Judge: This matter is before the court following the final determination of the U.S. Department of Commerce (“Commerce” or “the agency”) in the antidumping duty investigation of steel propane cylinders (“cylinders”) from Thailand for the period of investigation April 1, 2017, through March 31, 2018 (“the POI”).1 See Steel Propane Cylinders From Thailand, 84 Fed. Reg. 29,168 (Dep’t Commerce June 21, 2019) (final determination of sales at less than fair value) (“Final Determination”), ECF No. 22-4, and accompanying Issues and Decision Mem., A-549-839 (June 17, 2019) (“I&D Mem.”), ECF No. 22-5. On June 18, 2018, Commerce initiated this investigation. See Steel Propane Cylinders From the People’s Republic of China, Taiwan, and Thailand, 83 Fed. Reg. 28,196 (Dep’t Commerce June 18, 2018) (initiation of less-than-fair-value investigations), PR 40, CJA (Vol. I) Tab 4. During the investigation, Plaintiffs Manchester Tank & Equipment Co. and Worthington Industries (collectively, “Plaintiffs,” or when in reference to the administrative proceeding, “Petitioners”) and Defendant- Intervenor Sahamitr Pressure Container Plc. (“Sahamitr” or “SMPC”)2 each 1 The administrative record for this case is divided into a Public Administrative Record (“PR”), ECF No. 22-2, and a Confidential Administrative Record (“CR”), ECF No. 22-3. The Parties submitted joint appendices containing record documents cited in their briefs. See Nonconfidential Joint Appendix, ECF Nos. 47 (Vol. I), 47-1 (Vol. II), 47-2 (Vol. III), 47-3 (Vol. IV), 47-4 (Vol. V); Confidential Joint Appendix (“CJA”), ECF Nos. 46 (Vol. I), 46-1 (Vol. II), 46-2 (Vol. III), 46-3 (Vol. IV), 46-4 (Vol. V). Citations are to the confidential joint appendix unless stated otherwise. 2 Commerce selected Sahamitr as the sole mandatory respondent. See Respondent Selection Mem. (July 9, 2018), PR 52, CJA (Vol. I) Tab 7. Court No. 19-00147 Page 3 recommended different model-match criteria.3 See, e.g., Pet’rs’ Cmts. on the Important Prod. Characteristics and Prod. Matching Hierarchy (July 6, 2018), PR 48, CJA (Vol. I) Tab 5; [SMPC] Cmts. on AD Questionnaire Prod.-Matching Characteristics (July 6, 2018), PR 49, CJA (Vol. I) Tab 6. For the portion of the CONNUM related to the external coating of the cylinder, Commerce initially instructed Sahamitr to report codes that indicate whether a cylinder is coated or uncoated. See Ltr. Physical Characteristics for the Antidumping Duty Investigation of Steel Propane Cylinders from Thailand (July 25, 2017) (“Initial Model-Match Ltr.”), Attach. 1B, ECF p. 155, PR 63, CJA (Vol. I) Tab 11. In its questionnaire responses, Sahamitr provided a further breakdown of coated cylinders, distinguishing between zinc-coated and other-coated cylinders in addition to uncoated cylinders. Narrative Resp. of [Sahamitr] to Secs. B, C, and D of the Antidumping Duty Questionnaire (Sept. 13, 2018) (“BCDQR”) at B-14, C-12, CR 49–51, PR 84–86, CJA (Vol. I) Tab. 14. For the Preliminary Determination, Commerce relied on this additional distinction. See Decision Mem. for the Prelim. Determination (Dec. 18, 2018) (“Prelim. Mem.”) at 9, PR 162, CJA (Vol. III) Tab 31. 3 In any antidumping proceeding, there may be numerous “models” or “types” of products that meet the description of the product under investigation. In order to ensure an apples-to-apples comparison of sales in the U.S. and home markets, Commerce establishes a set of product criteria, from most to least important, to identify identical and similar products. Within each of these criteria, the distinct characteristics are given different numeric values which, when listed next to each other, constitute the “control number” or “CONNUM” for that “model” or “type.” In other words, the CONNUM is a number designed to reflect the “hierarchy of certain characteristics used to sort subject merchandise into groups” and allow Commerce to match identical and similar products across markets. Bohler Bleche GmbH & Co. KG v. United States, 42 CIT ___, ___, 324 F. Supp. 3d 1344 , 1347 (2018). Court No. 19-00147 Page 4 Following Commerce’s Preliminary Determination, Petitioners submitted comments challenging, in relevant part, the model-match methodology and the reliability of Sahamitr’s cost of production information. Pet’rs’ Case Br. on [Sahamitr] (May 2, 2019) (“Pet’rs’ Case Br.”) at 6–20, 42–50, CR 280, PR 196, CJA (Vol. V) Tab 41; see also Rebuttal Br. of [Sahamitr] (May 9, 2019) at 10–11, CR 282, PR 199, CJA (Vol. V) Tab 42 (responding to Petitioners’ argument regarding cost of production information). For the Final Determination, Commerce continued to use the CONNUM data that distinguished zinc-coated cylinders from other-coated cylinders for model-match purposes. See I&D Mem. at 22–24. Commerce also found Sahamitr’s reported costs to be reliable and rejected Petitioners’ arguments that Sahamitr’s failure to reliably report cost of production data warranted total adverse facts available (or “total AFA”). Id. at 36–40. Commerce calculated a weighted-average dumping margin for Sahamitr of 10.77 percent. See Final Determination, 84 Fed. Reg. at 29,169. Before the court, Plaintiffs challenge Commerce’s determinations to rely on the zinc coating distinction in the model-match methodology and Sahamitr’s reported cost data. See Pls.’ Rule 56.2 Mot. for J. on the Agency R., ECF No. 27, and accompanying Confidential Pls.’ Mem. in Supp. of Rule 56.2 Mot. for J. Upon the Agency R. (“Pls.’ Mem.”), ECF No. 29; Confidential Pls.’ Reply Br. (“Pls.’ Reply”), ECF No. 44. Defendant United States (“the Government”) and Sahamitr filed responses supporting the Final Determination. See Confidential Def.’s Resp. to Pls.’ Mot. for J. Upon the Agency R. (“Gov’t’s Resp.”), ECF No. 38; Confidential Def.-Int.’s Resp. in Opp’n to Pls.’ Rule 56.2 Mot. for J. Upon the Agency R. (“SMPC’s Resp.”), ECF No. 41. Court No. 19-00147 Page 5 For the reasons discussed below, the court sustains Commerce’s Final Determination and denies Plaintiffs’ motion for judgment on the agency record. JURISDICTION AND STANDARD OF REVIEW The court has jurisdiction pursuant to section 516A(a)(2)(B)(i) of the Tariff Act of 1930, as amended, 19 U.S.C. § 1516a(a)(2)(B)(i) (2018),4 and 28 U.S.C. § 1581 (c) (2018). The court will uphold an agency determination that is supported by substantial evidence and otherwise in accordance with law. 19 U.S.C. § 1516a(b)(1)(B)(i). DISCUSSION I. Zinc Coating A. Legal Framework To calculate a dumping margin, Commerce compares the amount by which normal value exceeds the export price or constructed export price. See 19 U.S.C. § 1677 (35)(A). To calculate normal value, Commerce determines “the price at which the foreign like product is first sold . . . for consumption in the exporting country . . . in the ordinary course of trade.” 19 U.S.C. § 1677b(a)(1)(B)(i); see also Pastificio Lucio Garofalo, S.p.A. v. United States, 35 CIT 630 , 632–33 & n.6, 783 F. Supp. 2d 1230 , 1233 & n.6 (2011), aff’d, 469 F. App’x 901 (Fed. Cir. 2012) (detailing the statutory scheme by which Commerce determines whether sales were made in the ordinary course of trade). Foreign like product is statutorily defined according to a hierarchy of 4 All citations to the Tariff Act of 1930, as amended, are to Title 19 of the U.S. Code, and references to the U.S. Code are to the 2018 edition. Court No. 19-00147 Page 6 characteristics. See 19 U.S.C. § 1677 (16).5 “Congress has granted Commerce considerable discretion to fashion the methodology used to determine what constitutes ‘foreign like product’ under the statute.” SKF USA, Inc. v. United States, 537 F.3d 1373 , 1379 (Fed. Cir. 2008) (citation omitted). Determinations of both identical and like/similar (i.e., non-identical but capable of comparison) merchandise are made using Commerce’s model-match methodology. See Pesquera Mares Australes Ltda. v. United States, 266 F.3d 1372 , 1383–84 (Fed. Cir. 2001).6 The discretion that the statute affords Commerce to establish its model- match methodology allows it to find certain products to be identical, notwithstanding minor differences in physical characteristics, if those differences are commercially insignificant. Id. at 1384 (Fed. Cir. 2001); see also 19 C.F.R. § 351.411 (a) (Commerce “may determine that merchandise sold in the United States does not have the same 5 Those characteristics are, in order of preference: (A) The subject merchandise and other merchandise which is identical in physical characteristics with, and was produced in the same country by the same person as, that merchandise. (B) Merchandise-- (i) produced in the same country and by the same person as the subject merchandise, (ii) like that merchandise in component material or materials and in the purposes for which used, and (iii) approximately equal in commercial value to the subject merchandise. (C) Merchandise-- (i) produced in the same country and by the same person and of the same general class or kind as the merchandise which is the subject of the investigation, (ii) like that merchandise in the purposes for which used, and (iii) which [Commerce] determines may reasonably be compared with that merchandise. 19 U.S.C § 1677(16). 6 Prior to 1995, the statute used the “term ‘such or similar merchandise’ . . . and was replaced (following the enactment of the [Uruguay Round Agreements Act, Pub. L. No. 103–465, 108 Stat. 4809 (1994)]) by the term ‘foreign like product.’” Pesquera, 266 F.3d at 1384 n.8. Court No. 19-00147 Page 7 physical characteristics as the merchandise sold in the [home] market,” and that Commerce “will make a reasonable allowance for such differences”). B. Background Shortly after initiating this investigation, Commerce issued a letter containing the criteria to be used for the model-match methodology. Initial Model-Match Ltr., Attach. 1B. Although the letter instructed Sahamitr to report a cylinder as coated or uncoated, id., Attach. 1B, ECF p. 155, Sahamitr reported three codes for coating: uncoated, coated-normal, and coated-special (i.e., zinc coating), see BCDQR at B-14, C-12. In a supplemental questionnaire, Commerce directed Sahamitr to correct its response consistent with the Initial Model-Match Letter. See Narrative Resp. of [Sahamitr] to the Suppl. Sec. B and Sec. C Questionnaire (Nov. 6, 2018) (“SBCQR”) at SSQ-10, SSQ-25, CR 106–120, PR 134–139, CJA (Vol. II) Tab 22. Sahamitr reported cylinder coatings as instructed but also included an alternative CONNUM field based on the same three coating classifications that it reported in response to the initial questionnaire. See id. at SSQ-10 to SSQ-11, SSQ-25 to SSQ-26, Exs. SSQ-9 & SSQ- 26. Sahamitr argued to Commerce that zinc-coated cylinders are not comparable to non-zinc-coated cylinders such that Sahamitr’s margin would be inaccurate or distorted if Commerce relied on the model-match criteria in the Initial Model-Match Letter. See id. at SSQ-10 to SSQ-11. Sahamitr explained that it applies zinc coating at its customer’s request and that zinc coating has a “significant and direct bearing on the per-unit prices and per-unit production costs of SMPC’s zinc-coated steel propane cylinders.” Id. at Court No. 19-00147 Page 8 SSQ-10; see also Narrative Resp. of [Sahamitr] to the First Suppl. Sec. D Questionnaire (Nov. 13, 2018) (“SDQR”) at FSD-11, CR 159–60, PR 141, CJA (Vol. II) Tab 24. Sahamitr pointed out that “products with zinc coating are sold in [Sahamitr’s] home market and, in contrast, are never sold in the United States.” SDQR at FSD-11. For its Preliminary Determination, Commerce used Sahamitr’s dataset that distinguished between zinc-coated cylinders and cylinders with other coatings, notwithstanding Petitioners’ objections. Prelim. Mem. at 9; Analysis for the Prelim. Determination (Dec. 18, 2018) at 6, CR 196, PR 165, CJA (Vol. III) Tab 32. For the Final Determination, Commerce continued to account for zinc coating in the model-match methodology. See I&D mem. at 22–24. Commerce explained that it confirmed at verification that Sahamitr applies zinc coating at its customer’s request and that zinc coating requires additional steps in the production process. See id. at 22 (citations omitted); see also Verification of the Sales Resps. of [Sahamitr] (Apr. 15, 2019) at 16, CR 277, PR 192, CJA (Vol. V) Tab 38 (referencing Sales Verification Exs. For [Sahamitr] (Mar. 12, 2019), Ex. SVE-5A, CR 229–51, PR 183, CJA (Vol. V) Tab 36). Per-unit comparisons showed that the cost of producing zinc-coated cylinders was “significantly higher” than for non-zinc-coated cylinders. I&D Mem. at 23 & n.184 (citation omitted). Citing Sahamitr’s 2016 annual report, Commerce also found that zinc coating “prevent[s] metal from rusting in humid climates.” Id. at 22 & n.175 (citing Exs. Accompanying the Narrative Response of [Sahamitr] to Sec. A of the Antidumping Duty Questionnaire, (Aug. 13, 2018) (“AQR”), Ex. A-9 at 89, CR 38–47, PR 72–76, CJA (Vol. I) Tab 13). Court No. 19-00147 Page 9 C. Parties’ Arguments Before the court, Plaintiffs advance the following arguments. First, Plaintiffs argue that Commerce departed from its policy of using the model-match methodology announced at the outset of an investigation. Pls.’ Mem. at 14–17. Second, Plaintiffs argue that Commerce did not support its revision to the model-match methodology with compelling reasons or substantial evidence. Id. at 17–20. Third, Plaintiffs argue that substantial evidence does not support Commerce’s finding that zinc coating is commercially significant. Id. at 20–28. The Government counters that substantial evidence supports the agency’s determination that zinc coating is a commercially significant characteristic, Gov’t’s Resp. at 9–10, and further assert that compelling reasons support Commerce’s determination to revise the model-match methodology, Gov’t’s Resp. at 17–18; see also SMPC’s Resp. at 4–6. The Government points to evidence that Thai customers request zinc coating, zinc coating requires a special process, and zinc coating extends the useful life of a cylinder and prevents rusting in humid climates. See Gov’t’s Resp. at 10–11. D. Substantial Evidence Supports Commerce’s Use of Zinc Coating in the Model-Match Methodology 1. Standard of Review Applicable to Commerce’s Selection of Model- Match Criteria The parties articulate, and Commerce applied, a more rigorous standard concerning its development of the model-match criteria than was necessary. The U.S. Court of International Trade and the U.S. Court of Appeals for the Federal Circuit have looked for “compelling reasons” when Commerce modifies a model-match methodology Court No. 19-00147 Page 10 in a review after having used that methodology in previous segments of the proceeding. See, e.g., SFK USA, 537 F.3d at 1380 ; Koyo Seiko Co. v. United States, 31 CIT 1512 , 1517–18, 516 F. Supp. 2d 1323 , 1331–32 (2007), aff’d 551 F.3d 1286 (Fed. Cir. 2008); Fagersta Stainless AB v. United States, 32 CIT 889 , 894–95, 577 F. Supp. 2d 1270 , 1276–77 (2008). “Compelling reasons” require the agency to provide “compelling and convincing evidence that the existing model-match criteria are not reflective of the merchandise in question, that there have been changes in the relevant industry, or that there is some other compelling reason” requiring the change. Fagersta, 32 CIT at 894, 577 F. Supp. 2d at 1277 (citation omitted). By comparison, when Commerce develops a model-match methodology in an investigation, it is afforded “considerable discretion” and need only support the methodology with substantial evidence and a reasoned explanation. Bohler Bleche, 324 F. Supp. 3d at 1350–54. Here, the original investigation is being challenged and there was no methodology from a previous segment for Commerce to alter. In the investigation, Commerce was developing, not revising, its model-match methodology. Accordingly, the agency was not required to address the higher “compelling reasons” standard to support including a code for zinc coating. The agency’s model-match methodology need only be supported by substantial evidence. See id. at 1354 (stating that the “only question before [the] court is whether the [agency’s] chosen methodology is reasonable, supported by substantial evidence on the record, and otherwise in accordance with the law”) (emphasis omitted). Court No. 19-00147 Page 11 2. Commercial Significance of the Zinc Coating Next, the court considers whether substantial evidence supports Commerce’s determination that zinc coating is a commercially significant characteristic (i.e., a characteristic that merits distinguishing between identical and similar products). The court finds that substantial evidence supports Commerce’s determination. As discussed above, foreign like product includes both identical and similar merchandise and Commerce has considerable discretion to establish its model-match criteria to distinguish between them. See SFK USA, 537 F.3d at 1379 . “Commerce has wide latitude in choosing what physical characteristics to consider,” and generally will recognize physical differences that are significant in terms of cost and price differences. New World Pasta Co. v. United States, 28 CIT 290 , 308, 316 F. Supp. 2d 1338 , 1354 (2004). Here, Commerce supported with substantial evidence its conclusion that zinc coating is a commercially significant characteristic.7 Commerce cited sales documents indicating that zinc coating is optional and selected by Sahamitr’s customers.8 I&D 7 While Plaintiffs fail to identify evidence that detracts from the agency’s findings, their questioning of the evidence is somewhat understandable. Although Commerce cited record evidence in its analysis, certain of its citations are mis-directed and do not obviously support the associated findings. Nevertheless, examining the agency’s reasoning and referenced record evidence as a whole, the court is able to reasonably discern the path of the agency’s reasoning. See NMB Singapore Ltd. v. United States, 557 F.3d 1316 , 1319 (Fed. Cir. 2009). 8 Plaintiffs argue that Commerce’s conclusion that Sahamitr’s customers request zinc coating is unsupported by substantial evidence because Commerce relied on Sahamitr’s 2016 annual report, which does not describe a spraying process, and new information obtained at verification. See Pls.’ Mem. at 23–24; Oral Arg. at 15:10–15:20 (time stamp from recording), available at https://www.cit.uscourts.gov/sites/cit/files/ Court No. 19-00147 Page 12 Mem. at 23 & n.182 (citing, inter alia, SBCQR, Ex. SSQ-7 (customer’s terms and conditions requiring spray coating of zinc wire)). Commerce found that zinc coating requires a “special process” in that Sahamitr “‘prepare[s] the base coat by spraying pure zinc wire’ with certain specified thickness’” and applies “other specified base coat or ‘other brands.’” Id. at 22 & n.171 (quoting SBCQR, Ex. SSQ-7). Commerce also relied on evidence in which Sahamitr identified the price and cost differentials between CONNUMs differing only as to zinc coating. See id. 23 & n.184 (citing SBCQR, Ex. SSQ-7, pt. 2; SDQR, Ex. FSD-11). Commerce also cited Sahamitr’s 2016 annual report to support its finding that zinc coating prevents rust and extends the useable life of a cylinder. See id. at 22 & n.174 (citing AQR, Ex. A-9 at 89). The 2016 annual report states that Sahamitr offers a hot-dipped galvanized cylinder that is “highly resistant” to the effects of high humidity and, “therefore[,] it helps reduce the maintenance and cost of [the] cylinder, and waste of the obsolete cylinder.” AQR, Ex. A-9 at 89. Although not explicitly stated in the Issues and Decision Memorandum, nothing suggests that Commerce’s finding that zinc protects against rust and extends the life of cylinder is dependent on how the zinc coating is applied (i.e., spray or hot dip).9 092420-19-00147-MAB.mp3 (last accessed Dec. 3, 2020). However, Commerce also identified the terms and conditions in a contract between Sahamitr and a customer indicating that the customer required the zinc coating. See I&D Mem. at 23 & n.182 (citation omitted). Thus, substantial evidence supports this finding. 9 Plaintiffs contend that the hot-dipped galvanized cylinders are not the same type of cylinders sprayed with zinc coating, thereby challenging whether the protective properties described in the 2016 annual report can be attributed to the subject merchandise. See Pls.’ Mem. at 22; Oral Arg. at 13:25–15:07. Plaintiffs, however, agree that zinc protects against rust in humid climates, Oral Arg. at 5:10–5:15, and do Court No. 19-00147 Page 13 Plaintiffs argue that substantial evidence does not support Commerce’s finding that zinc coating results in a pricing premium because Commerce accepted Sahamitr’s reporting of home market and U.S. sales on a tare-weight basis but considered the cost and pricing effects of zinc coating on a per-cylinder basis. See Pls.’ Mem. at 25–26. Commerce explained that although Sahamitr reported sales on a tare-weight basis, Sahamitr conducted sales in both the home and U.S. markets on a per-cylinder basis. I&D Mem. at 23; see generally id. at 25–26 (explaining that Sahamitr’s home market and U.S. sales databases, which were reported on a tare-weight basis, were reliable). Commerce found it “more meaningful to measure the price differences based on . . . a per-unit cylinder basis.” Id. at 23. Although Plaintiffs disagree with Commerce’s conclusion, they have not identified any evidence indicating that price and cost comparisons on a per-cylinder basis are less reliable for evaluating the relevance of zinc coating than if they had been performed on a tare-weight basis. Thus, Plaintiffs fail to provide a basis to call into doubt Commerce’s analysis. The Parties also dispute whether Plaintiffs exhausted their administrative remedies with respect to the argument that Commerce failed to address evidence that zinc coating is not commercially significant because non-zinc coatings also extend the life of a cylinder and prevent rust. See Gov’t’s Resp. at 11–15; SMPC’s Resp. at 6; Pls.’ not identify evidence that such protection changes depending on the method by which the cylinder is coated. Thus, although the evidence cited by Commerce is less than ideal, the court “cannot find . . . so little evidence on the record as to be less than a mere scintilla or less than that which a reasonable mind might accept as adequate to support a conclusion.” Atl. Sugar, Ltd. v. United States, 744 F.2d 1556 , 1563 (Fed. Cir. 1984). Court No. 19-00147 Page 14 Reply at 7. The court, however, need not resolve this issue. Assuming that Plaintiffs did exhaust their administrative remedies and that Commerce did not address evidence identified by Plaintiffs, see Pls.’ Mem. at 22–23, the agency’s oversight would not require a remand. Commerce is not “required to explicitly address every piece of evidence presented by the parties,” but only “significant arguments and evidence which seriously undermines its reasoning and conclusions.” U.S. Steel Corp. v. United States, 36 CIT 1172 , 1174, 856 F. Supp. 2d 1318 , 1321 (2012) (citations omitted). Considering the record as a whole, Commerce has supported with substantial evidence its decision to accept as commercially significant the distinction between zinc and non-zinc coatings because zinc coating requires unique production processes, is specifically requested by customers, and leads to price variations. Cf. Bohler Bleche, 324 F. Supp. 3d at 1350 (finding that “differences in cost and price” attributable to a physical characteristic and that “customers would view” such products as distinct, indicate that a physical characteristic is commercially significant). Any failure to compare protective qualities (or the degree of protection) as between zinc coatings and non-zinc coatings would not undermine that decision. Thus, Plaintiffs’ argument is not sufficient to warrant remand under the substantial evidence standard. See U.S. Steel, 36 CIT at 1181, 856 F. Supp. 2d at 1327 (noting that the reviewing court “under the substantial evidence standard must defer to the [agency]” when “there is an adequate basis in support of the [agency’s] choice of evidentiary weight”). Court No. 19-00147 Page 15 For the foregoing reasons, the court sustains Commerce’s conclusion that zinc coating is a commercially significant characteristic.10 II. Cost of Production Data A. Legal Framework “In assessing the reliability of a respondent’s cost of production,” the agency must confirm, among other things, “that the costs are reasonably and accurately allocated to individual control numbers.” Hyundai Elec. & Energy Sys. Co. v. United States, 44 CIT ___, ___, 466 F. Supp. 3d 1303 , 1309 (2020) (emphasis omitted) (citation omitted). Typically, Commerce will rely on a respondent’s normal books and records to determine the cost of production, provided that they “reasonably reflect the costs associated with the production and sale of the merchandise.” See 19 U.S.C. § 1677b(f)(1)(A). When necessary information (such as cost of production information) is not available on the record, or an interested party withholds information requested by Commerce, fails to provide requested information by the submission deadlines, 10 Plaintiffs argue that Sahamitr failed to report the portion of the CONNUM related to the external coating of the cylinder consistent with Commerce’s instructions in the Initial Model-Match Letter. See Pls.’ Mem. at 15–16. However, at oral argument, Plaintiffs acknowledged that Sahamitr did in fact provide the information as requested by Commerce albeit with alternative CONNUM fields including a code for zinc coating. Oral Arg. at 4:15–4:40. Therefore, Plaintiffs’ argument that Sahamitr failed to comply with Commerce’s reporting instructions must fail. Similarly, Plaintiffs’ argument that Commerce’s initial model-match criteria, which did not distinguish zinc from other coatings, implies that zinc coating is not commercially significant, see Pls.’ Mem. at 15, fails because Commerce obtained information regarding the commercial significance of the zinc coating during the investigation (i.e., after the Initial Model-Match Letter), see, e.g., I&D Mem. at 22–24. Court No. 19-00147 Page 16 significantly impedes a proceeding, or provides information that cannot be verified pursuant to 19 U.S.C. § 1677m(i), Commerce “shall . . . use the facts otherwise available.” Id. § 1677e(a). B. Background For the Final Determination, Commerce accepted Sahamitr’s reported CONNUM-specific costs notwithstanding Plaintiffs’ arguments that there were cost differences between certain pairs of CONNUMs that appeared to be out of proportion to the differences in physical characteristics based on the CONNUM description. I&D Mem. at 39 & n.269 (citation omitted). Because Commerce found that Sahamitr’s cost of production data were reliable, the agency found it unnecessary to rely on facts otherwise available or use an adverse inference. See id. at 39–40. Plaintiffs challenge these conclusions. See Pls.’ Mem. at 28–40. In response to section D of the initial questionnaire, Sahamitr stated that it tracks “production costs on [a] product-specific basis” and reported “weighted-average costs for all products sharing identical CONNUM physical characteristics.” BCDQR at D-17 to D-18. In response to the supplemental section D questionnaire, Sahamitr further explained that it used its “standard cost structure to capture accurately cost differences stemming from the different physical characteristics of the various cylinder types that SMPC produces.” SDQR at FSD-10. Commerce preliminarily determined that Sahamitr’s cost data were reliable subject to two exceptions that are not relevant here. See Prelim. Mem. at 12. At verification, Commerce confirmed that Sahamitr allocated “total actual costs for each Court No. 19-00147 Page 17 cost element [of a CONNUM] on a product-specific basis.” Verification of the Cost Resp. of [Sahamitr] (Apr. 24, 2019) at 15, CR 278, PR 193, CJA (Vol. V) Tab 39. In their administrative case brief, Petitioners argued that Sahamitr’s cost of production data were unreliable because they had identified several CONNUM pairings that were nearly identical—with the exceptions of two characteristics—but had unexplained cost differences. Pet’rs’ Case Br. at 18; see also id. at 15–16 (citing several pairs of CONNUM that purportedly exhibited such cost differences). Petitioners argued to Commerce that Sahamitr’s failure to provide reliable cost of production information warranted the use of total AFA. Id. at 19. Commerce rejected Petitioners’ arguments and continued to find Sahamitr’s cost of production information reliable. See I&D Mem. at 36–40. Commerce explained that Sahamitr’s reported costs “derived from the company’s normal accounting records,” which Commerce found were “maintained in accordance with the generally accepted accounting principles (GAAP) of Thailand.” Id. at 37; see also id. at 38 (finding that Sahamitr’s books and records satisfied the requirements of 19 U.S.C. § 1677b(f)(1)(A)). Commerce found that Sahamitr “classified each cylinder produced into the appropriate CONNUM based on the physical characteristics defined by Commerce and used the product-specific costs from its system to derive weighted average per-unit cost[s] for each unique CONNUM.” Id. at 38–39 & n.265 (citation omitted). Commerce acknowledged that the physical characteristics captured by each CONNUM did not reflect all “processing activities” and “physical distinctions” in Sahamitr’s cylinders. Id. at 39. In particular, the size, weight, and design of collars and Court No. 19-00147 Page 18 foot rings assembled and welded to the cylinders sold in the home market differed from those used on cylinders sold in the U.S. market. See id. Commerce acknowledged that the “CONNUM structure [did] not reflect any differences associated with these physical distinctions.” Id. at 39 & n.270 (citation omitted). Nevertheless, Commerce found that these cost variations were “relatively minor” and insufficient to conclude that Sahamitr did not submit its costs on a CONNUM-specific basis. Id. at 39. Commerce also rejected Petitioners’ analysis of Sahamitr’s cost data as including material costs that were inconsistent with differences associated with one physical characteristic unrelated to coating. Id. According to Commerce, Petitioners’ analysis of this issue did not account for zinc coating and how “the product costs would differ depending on whether the cylinders are coated with zinc.” Id. Accordingly, Commerce concluded that Sahamitr did not withhold cost data, the record did not lack “necessary information,” and thus, reliance on total AFA was unnecessary. Id. at 40. C. Parties’ Arguments Plaintiffs argue that Sahamitr reported cost differences that cannot be attributed to the physical characteristics based on Plaintiffs’ selected pairs of CONNUMs. See Pls.’ Mem. at 28. Plaintiffs assert that the unexplained cost differences owe to Sahamitr withholding cost information and not accurately reporting costs on a CONNUM-specific basis. See id. at 28–29. Thus, Plaintiffs argue, substantial evidence does not support the agency’s conclusion that Sahamitr’s cost data were reliable. See id. at 28; Pls.’ Reply at 11. Because, in Plaintiffs’ view, Sahamitr’s cost data are unreliable, substantial Court No. 19-00147 Page 19 evidence does not support Commerce’s refusal to rely on total AFA. See Pls.’ Mem. at 40. The Government argues that the cost differences in the pairs of CONNUMs selected by Plaintiffs are explained by differences in costs for the collars and foot rings on the cylinders differing as between the home and U.S. markets. Gov’t’s Resp. at 23. To that end, the Government contends that most cost variations between CONNUM pairings align with cost variations for different dimensions of collars and foot rings as recognized and explained by Commerce. Id. at 22; see also SMPC’s Resp. at 10–11. The Government acknowledges that one CONNUM comparison identified by Plaintiffs shows more than minor cost differences but contends that this example is an outlier and not representative of the other cost differences. Gov’t’s Resp. at 20. Finally, the Government argues that total facts available—neutral or adverse—was not appropriate in this case because Commerce reasonably determined that necessary information was not missing from the record. Id. at 24; see also SMPC’s Resp. at 11–14. D. Substantial Evidence Supports Commerce’s Conclusion that Sahamitr’s Cost of Production Information is Reliable Commerce acknowledged the cost variances between CONNUM pairs identified by Petitioners and provided a reasoned explanation why the variances did not detract from the reliability of Sahamitr’s cost of production data: they were minor and explained by differences in the collars and foot rings that were not accounted for in the physical characteristics used to assign CONNUMs. See I&D Mem. at 39 & n.269 (citing Narrative Resp. of [Sahamitr] to the Third Suppl. Questionnaire (Feb. 20, 2019), Exs. TSQ-8 & TSQ-9, CR 214–25, PR 175, CJA (Vol. III) Tab 35). The CONNUM pairs Court No. 19-00147 Page 20 selected by Plaintiffs reflect cost differences across non-identical CONNUMs which Commerce reasonably associated with the processing activities for distinct cylinders sold in the Thai home market and the U.S. market (i.e., the collars and foot rings). See I&D Mem. at 39. In other words, this was not a case in which the respondent failed to average cost differences within a CONNUM and Commerce rejected the suggestion that it average those differences across different CONNUMs. Plaintiffs have not presented any evidence undermining this conclusion. Again, Commerce considered and rejected Plaintiffs’ argument based on other comparisons of CONNUM pairings with one physical difference. See id. at 39 & n.271 (citing Pet’rs’ Case Br. at 15); Pls.’ Mem. at 30. Commerce explained that Plaintiffs’ argument in this regard was not credible because it was based on an analysis that did not account for cost differences attributable to zinc coating—a commercially significant feature. See I&D Mem. at 39. Plaintiffs’ arguments on appeal are little more than an invitation for the court to reweigh the evidence considered and rejected by Commerce, a task that the court will not do. See Downhole Pipe & Equip., L.P. v. United States, 776 F.3d 1369 , 1376–77 (Fed. Cir. 2015) (explaining that the court does not reweigh the evidence).11 11 Plaintiffs contend that Commerce’s determination is not supported by substantial evidence because the agency did not consider the cost difference evident in a particular CONNUM pair. See Pls.’ Mem. at 32–33. As explained above, Commerce supported its determination that the cost data were reliable with substantial evidence. Thus, the absence of a discussion regarding this one specific CONNUM pair that the Government now describes as an outlier does not prevent the agency’s decision from being supported by substantial evidence. See Timken U.S. Corp. v. United States, 421 F.3d Court No. 19-00147 Page 21 Finally, Plaintiffs contend that Sahamitr’s purported failure to report cost data reliably warrants use of total AFA. See Pls.’ Mem. at 40. Because substantial evidence supports the agency’s conclusion that Sahamitr reliably reported cost data, substantial evidence also supports Commerce’s determination not to rely on total AFA. See I&D Mem. at 39–40. CONCLUSION AND ORDER In accordance with the foregoing, it is hereby ORDERED that Commerce’s Final Determination is sustained. Judgment will enter accordingly. /s/ Mark A. Barnett Mark A. Barnett, Judge Dated:'HFHPEHU New York, New York 1350, 1354 (Fed. Cir. 2005) (citation omitted) (explaining that the agency is only required to address “issues material to the agency’s determination”).

2020-12-03 22:01:28.07293+00

http://www.cit.uscourts.gov/sites/cit/files/20-174.pdf

Slip Op. 20-174 UNITED STATES COURT OF INTERNATIONAL TRADE Court No. 19-00055 HUNG VUONG CORPORATION, et al., Plaintiffs, v. UNITED STATES, Defendant, and CATFISH FARMERS OF AMERICA, et al., Defendant-Intervenors. Before: M. Miller Baker, Judge OPINION AND ORDER [Plaintiffs’ motion for judgment on the agency record is granted in part and denied in part. The Court re- mands to Commerce for further proceedings consistent with this opinion.] Dated: December 3, 2020 Robert L. LaFrankie, Crowell & Moring LLP of Wash- ington, DC, argued for Plaintiffs. Kara M. Westercamp, Trial Attorney, Commercial Lit- igation Branch, Civil Division, U.S. Department of Justice of Washington, DC, argued for Defendant. Court No. 19-00055 Page 2 With her on the brief were Joseph H. Hunt, Assistant Attorney General; Jeanne E. Davidson, Director; Pa- tricia M. McCarthy, Assistant Director. Of counsel on the brief was Ian A. McInerney, Attorney, Office of the Chief Counsel for Trade Enforcement and Compliance, U.S. Department of Commerce of Washington, DC. Jonathan M. Zielinski, Cassidy Levy Kent (USA) LLP of Washington, DC, argued for Defendant-Intervenors. With him on the brief were James R. Cannon, Jr., and Jeffrey B. Denning. Baker, Judge: In some quarters, the humble catfish has a bad reputation. It’s ugly, often maligned as a “bottom-feeder,” and with fins that sting, it’s not so easy to remove from a fishing line intended for state- lier fish.1 But as reported in the newspaper of record, the ugly, ungainly, and prickly catfish is, in fact, a del- icacy. Craig Claiborne, “Catfish, Long a Southern Del- icacy, Branches Out,” N.Y. Times, Nov. 11, 1981, at C6. As a result, commercial catfish farming is a big busi- ness in this country. Indeed, the demand for catfish is so great that for- eign producers have entered the domestic market. Some of those producers are in Vietnam. In 2003, the Commerce Department determined that “catfish”2 1 Use of pliers is highly recommended. 2 In 2002, Congress amended the Federal Food, Drug, and Cosmetic Act to provide that “the term ‘catfish’ may only be considered to be a common or usual name (or part thereof) for fish classified within the family Ictaluridae” and, fur- ther, that “only labeling or advertising for fish classified within that family [i.e., Ictaluridae] may include the term Court No. 19-00055 Page 3 produced in Vietnam and exported to this country were dumped in the U.S., i.e., sold in the U.S. at below the normal sales price in Vietnam,3 and Commerce im- posed import duties. Under the statutory and administrative scheme, antidumping duties can be reviewed once per year and may be adjusted (upwards or downwards) as to partic- ular entities. This litigation stems from the 14th such review4 of the antidumping order as to certain frozen fish fillets from Vietnam. ‘catfish.’ ” 21 U.S.C. § 321d(a)(1)(A)–(B). The Vietnamese- produced fish at issue in this case are of the species pan- gasius and thus may not legally be marketed in the United States under the name “catfish.” Nevertheless, the domes- tic market apparently perceives the Vietnamese species as functionally equivalent to homegrown catfish. 3 As explained further below, determining the “normal” sales price in a country with a non-market economy such as Vietnam adds another layer of complexity in antidump- ing cases. 4 Lest the reader unfamiliar with trade law conclude “14th administrative review” suggests this case is an administra- tive law version of Jarndyce v. Jarndyce, fear not. On the anniversary of an antidumping order, various affected par- ties (e.g., foreign producers and exporters and domestic competitors) may request an “administrative review” to de- termine the actual assessment rates as to particular sub- ject merchandise for the preceding twelve-month period. See infra Statutory and Regulatory Background Part B. In short, each review is distinct, factually and legally, from any preceding review(s) and is best understood as periodic maintenance of the original antidumping order. Court No. 19-00055 Page 4 In that review, Commerce found that it could not verify information submitted by the Vietnamese pro- ducer and that the administrative record was other- wise incomplete in several respects. Commerce further found that these information deficiencies resulted from the producer’s failure to cooperate to the best of its ability and therefore supplied the missing infor- mation by assuming facts most adverse to the pro- ducer, which resulted in the highest possible import duty. The Vietnamese producer then brought this action challenging Commerce’s decision. After briefing and argument on the producer’s motion for judgment on the agency record, the Court grants the motion in part, denies the motion in part, and remands for further proceedings consistent with this opinion. Table of Contents Statutory and Regulatory Background........................6 A. Antidumping Orders ...........................................6 B. The Administrative Review Process ..................8 1. Purpose of the review ....................................8 2. Selection of respondents ................................9 3. Verification of respondents’ answers ......... 11 4. “Adverse facts available” ............................ 12 C. Reviews Involving Non-Market Economies.... 18 1. Factors of production .................................. 19 2. Control numbers ......................................... 21 3. Country-wide versus separate rates .......... 22 Court No. 19-00055 Page 5 Factual and Procedural Background ........................ 23 A. The Review ....................................................... 24 1. Commerce preliminarily assigned Hung Vuong a $0.00 dumping margin. ..... 25 2. Commerce issued supplemental questionnaires and conducted verification in Vietnam. .............................. 26 3. Commerce issued its final decision and assigned Hung Vuong a $3.87/kg dumping margin after applying facts available with an adverse inference. ......... 27 B. This Lawsuit .................................................... 29 Jurisdiction and Standard of Review ....................... 29 Analysis ...................................................................... 30 I. Hung Vuong Fails to Overcome the Presumption That Commerce Acted in Good Faith. ....................................................... 30 II. The Court Sustains in Part and Remands in Part Commerce’s Determination to Apply Facts Otherwise Available with an Adverse Inference. ............................................................... 35 A. Failure to Retain Source Documents .............. 36 1. Commerce’s findings ................................... 37 2. The administrative record permitted Commerce to apply facts otherwise available with an adverse inference as to the failure to retain source documents.................................................... 41 B. Hung Vuong’s Relationship with Customers......................................................... 52 1. Commerce’s findings ................................... 54 Court No. 19-00055 Page 6 2. Commerce must reconsider its application of facts otherwise available with an adverse inference as to customer relationships. ..................... 55 C. Control Number Reporting.............................. 62 1. Commerce’s findings ................................... 62 2. The administrative record permitted Commerce to apply facts otherwise available with an adverse inference as to control number reporting. ................. 64 D. Factors of Production ....................................... 77 1. Commerce’s findings ................................... 77 2. The administrative record did not permit Commerce to apply facts otherwise available with an adverse inference as to the fish byproducts portion of Hung Vuong’s factors of production data. .......................................... 79 E. The Court Is Required to Remand Commerce’s Decision to Apply “Total AFA.” .................................................... 87 F. The Rate Commerce Applied Must Be Reconsidered on Remand. ............................... 91 Order........................................................................... 92 Statutory and Regulatory Background A. Antidumping Orders The federal antidumping statute provides a mech- anism for imposing remedial duties on imported mer- chandise sold, or likely to be sold, in the United States at “less than its fair value.” 19 U.S.C. § 1673 (1). The Court No. 19-00055 Page 7 gist of the process is that an “interested party” as de- fined in the Tariff Act of 19305 files a petition simulta- neously with Commerce and the International Trade Commission alleging that a U.S. domestic industry is materially injured or threatened with material injury by such imports. U.S. Int’l Trade Comm’n, Publication 4540, Antidumping and Countervailing Duty Hand- book, at I-3 (14th ed. June 2015), available at https://www.usitc.gov/trade_remedy/documents/hand book.pdf (accessed Nov. 17, 2020). Commerce then investigates whether the petition contains sufficient allegations of dumping and, if so, whether dumping is occurring, while the ITC investi- gates whether the relevant domestic industry is being, or is likely to be, materially injured. If both agencies find in the affirmative, Commerce publishes an anti- dumping order in the Federal Register imposing an antidumping duty “in an amount equal to the amount by which the normal value exceeds the export price (or the constructed export price) for the merchandise.” 19 U.S.C. § 1673.6 The antidumping duty is in addition 5 The statute provides that an “interested party” described in subparagraph (C), (D), (E), (F), or (G) of Section 771(9) of that Act (codified at 19 U.S.C. § 1677 (9)) may file a peti- tion on behalf of a domestic industry. See 19 U.S.C. § 1673a(b)(1). The specified subparagraphs refer to various domestic entities involved in the production of a “domestic like product.” Id. § 1677(9)(C)–(G). 6“Normal value” essentially refers to the price at which the subject merchandise is sold in the country from which it is exported. RHP Bearings Ltd. v. United States, 288 F.3d 1334 , 1337 (Fed. Cir. 2002). For example, the normal value of a widget exported from Country Q is the price at which Court No. 19-00055 Page 8 to any other duty imposed on the subject merchandise. 19 U.S.C. § 1673 . B. The Administrative Review Process 1. Purpose of the review Because relevant background facts and market con- ditions change over time, the statutory and regulatory framework provides for administrative reviews of an- tidumping orders to adjust the rate. During the order’s anniversary month,7 domestic interested parties8 may submit written requests asking Commerce to conduct an administrative review of specific foreign exporters or producers covered by the order. 19 C.F.R. § 351.213 (b)(1). Exporters or producers covered by an antidumping order, or importers of exporters’ or that widget is sold in Country Q. The terms “export price” and “constructed export price” are nuanced and discussed in detail in note 34, infra; for now, and ignoring nuance, think broadly of the antidumping duty as the price at which the hypothetical Country Q widget is sold in Country Q (normal value) minus the price at which that same Coun- try Q widget is sold in the United States (export price or constructed export price). If the Country Q home market price exceeds the price in the United States, the difference is the extent to which that product is “dumped.” 7 The term “anniversary month” is defined, in relevant part, as referring to “the calendar month in which the an- niversary of the date of publication of an order . . . occurs.” 19 C.F.R. § 351.102 (b)(5). In this case, the original anti- dumping order was issued in August 2003, so parties seek- ing administrative review of that order submit requests during subsequent Augusts. 8 See supra note 5. Court No. 19-00055 Page 9 producers’ merchandise covered by such an order, may similarly request a review of that order as it applies to them individually (in the case of an exporter or pro- ducer) or merchandise imported by them (in the case of an importer). Id. § 351.213(b)(2), (3). The period of review covers the 12 months immedi- ately preceding the most recent anniversary month. Id. § 351.213(e)(1)(i). Completion of the review is sub- ject to strict time limits. See 19 U.S.C. § 1675 (a)(3)(A); 19 C.F.R. § 351.213 (h)(1)–(2). If no domestic interested party, affected foreign ex- porter, producer, or importer requests an administra- tive review, the then-current antidumping rate, re- ferred to as the “preexisting rate,” continues to apply. 2. Selection of respondents If Commerce undertakes an administrative review, the Department must “determine the individual weighted average dumping margin for each known ex- porter and producer of the subject merchandise.” 19 U.S.C. § 1677f-1(c)(1). Commerce may invoke an ex- ception, however, “[i]f it is not practicable to make in- dividual weighted average dumping margin determi- nations . . . because of the large number of exporters or producers involved in the investigation or review,” id. § 1677f-1(c)(2), in which case Commerce is to make the determination “for a reasonable number of export- ers or producers by limiting its examination to” either a “statistically valid” sampling of exporters or produc- ers, id. § 1677f-1(c)(2)(A), or “exporters and producers accounting for the largest volume of the subject Court No. 19-00055 Page 10 merchandise from the exporting country that can be reasonably examined,” id. § 1677f-1(c)(2)(B). When Commerce implements this statutory excep- tion, it identifies some exporters or producers as to whom it will make the “individual” determination; they are referred to as “mandatory respondents,” who will receive individual antidumping rates at the end of the review, while exporters or producers not individu- ally reviewed will receive either an “all others” rate or a nationwide single rate. 19 U.S.C. § 1673d(c)(1)(B)(i), (c)(5).9 Commerce then sends questionnaires to mandatory respondents seeking information for purposes of the review. 19 C.F.R. § 351.221 (b)(2). The questionnaires give precise instructions on what information Com- merce wants, in what form it must be reported, and when it is due. The questionnaire answers are critical as respond- ents have the burden of creating an accurate admini- 9 A review may also include “voluntary respondents,” which refers to interested parties who apply for that treatment pursuant to 19 C.F.R. § 351.204 (d). Commerce must estab- lish individual antidumping rates for voluntary respond- ents who timely submit the information required of the mandatory respondents, provided examination of volun- tary respondents will not be unduly burdensome to Com- merce such that it “inhibit[s] the timely completion of the investigation or review.” 19 U.S.C. § 1677m(a)(1)(B). As a practical matter, therefore, a “voluntary respondent” is likely to be an exporter or producer that believes it can get a lower antidumping rate by seeking separate examina- tion. Court No. 19-00055 Page 11 strative record. Ta Chen Stainless Steel Pipe, Inc. v. United States, 298 F.3d 1330 , 1336 (Fed. Cir. 2002) (citing Zenith Elecs. Corp. v. United States, 988 F.2d 1573 , 1583 (Fed. Cir. 1993)). Respondents have this burden because they control the information that Commerce needs to complete its review. Id. 3. Verification of respondents’ answers After the respondents answer the questionnaires, Commerce may conduct “verification.” “Verification is like an audit, the purpose of which is to test infor- mation provided by a party for accuracy and complete- ness.” Bomont Indus. v. United States, 733 F. Supp. 1507 , 1508 (CIT 1990) (cleaned up).10 Commerce ad- monishes respondents that submission of new infor- mation at verification is inappropriate unless the need for the information was not already apparent; the in- formation makes minor corrections to information al- ready on the record; or the information corroborates, supports, or clarifies information already on the rec- ord.11 “Although Commerce has authority to place 10Commerce has latitude in how it conducts verification, and there is no requirement to verify everything in a re- spondent’s questionnaire. U.S. Steel Corp. v. United States, 953 F. Supp. 2d 1332 , 1348 (CIT 2013). 11Commerce is permitted to limit its acceptance of new in- formation at the verification stage to “minor corrections and clarifications.” China Steel Corp. v. United States, 393 F. Supp. 3d 1322 , 1342 (CIT 2019) (citing Maui Pineapple Co. v. United States, 264 F. Supp. 2d 1244 , 1257–58 (CIT 2003)); see also Dongguan Sunrise Furniture Co. v. United States, 865 F. Supp. 2d 1216 , 1231–32 (CIT 2012) (finding Commerce acted reasonably in refusing to accept post- Court No. 19-00055 Page 12 documents in the administrative record that it deems relevant, the burden of creating an adequate record lies with interested parties and not with Commerce.” QVD Food Co. v. United States, 658 F.3d 1318 , 1324 (Fed. Cir. 2011) (cleaned up). 4. “Adverse facts available” In certain statutorily-defined situations, Commerce is required to supply facts not in the administrative record to complete its antidumping investigation or administrative review. In limited circumstances, the statute also permits Commerce—when supplying such facts—to take the additional step of choosing facts that are adverse to the respondent in an investigation or administrative review. The case law and litigants fre- quently use the shorthand terms “adverse facts avail- able” or “AFA” to describe this two-step analysis, but that jargon is potentially misleading because it col- lapses together the two distinct steps. In the first step, the statute requires Commerce to apply “facts otherwise available,” i.e., facts not in the record, in various defined circumstances. If Commerce applies facts otherwise available, Commerce then pro- ceeds to the next step. In step two, if Commerce deter- mines that a respondent has not cooperated to the best of its ability, it may then apply an adverse inference, verification submissions due to time limits, inability to is- sue supplemental questions and verify the new submis- sions, and because “allowing a party to wait until Com- merce discovers an omission would allow the party to game the system”). Court No. 19-00055 Page 13 i.e., select from among facts that are most unfavorable to the respondent, in applying facts otherwise availa- ble. In short, Commerce’s application of facts otherwise available is a necessary, but not sufficient, condition to the Department’s application of an adverse infer- ence in selecting among those facts. The Court de- scribes each of these steps below. a. Facts otherwise available Commerce is required to apply “facts otherwise available” in specified situations: (a) In general. If— (1) necessary information is not available on the record, or (2) an interested party or any other person— (A) withholds information that has been requested by [Commerce] . . . under this subtitle, (B) fails to provide such information by the deadlines for submission of the infor- mation or in the form and manner re- quested, subject to subsections (c)(1) and (e) of section 1677m of this title, (C) significantly impedes a proceeding un- der this subtitle, or Court No. 19-00055 Page 14 (D) provides such information but the in- formation cannot be verified as provided in section 1677m(i) of this title, [Commerce] . . . shall, subject to section 1677m(d) of this title, use the facts otherwise available in reaching the applicable determina- tion under this subtitle. 19 U.S.C. § 1677e(a) (emphasis added). Subsection 1677e(a) has several layers and multi- ple uses of the disjunctive. Notably, paragraphs (1) and (2) are in the alternative, joined by the word “or,” meaning that Commerce must use facts otherwise available if either necessary information is not availa- ble or the circumstances in paragraph (2) apply. Paragraph (2), in turn, contains four subpara- graphs that are likewise joined by the word “or,” mean- ing that if any one (or more) of the conditions listed in paragraph (2) applies, Commerce must use facts oth- erwise available. The first pathway for applying the “facts otherwise available” analysis—paragraph (1) of subsection 1677e(a)—focuses solely on the absence of necessary information, not on the reason why it is missing. If “necessary information is not available on the record,” for any reason, Commerce must use facts otherwise available. See 19 U.S.C. § 1677e(a)(1). The alternative pathway for applying “facts other- wise available”—paragraph (2) of subsection 1677e(a)—focuses on the respondent’s acts and Court No. 19-00055 Page 15 omissions affecting the administrative record. Nota- bly, whereas paragraph (1) asks whether “necessary information is not available on the record,” see 19 U.S.C. § 1677e(a)(1), paragraph (2) omits the word “necessary” and focuses on whether a respondent has withheld any requested information (regardless of whether it seems tangential or trivial), id. § 1677e(a)(2)(A), has failed to comply with deadlines or provided information in the wrong form or manner, id. § 1677e(a)(2)(B),12 significantly impeded the pro- ceeding, id. § 1677e(a)(2)(C), or provided information that could not be verified, id. § 1677e(a)(2)(D).13 12 Section 1677e(a)(2)(B) in turn is further qualified by 19 U.S.C. §§ 1677m(c)(1) and 1677m(e), which impose lim- its on Commerce’s ability to apply facts otherwise available when a respondent has failed to comply with Commerce’s deadlines or requirements as to the form and manner re- quested. 13 In Nippon Steel Corp. v. United States, the Federal Cir- cuit characterized § 1677e(a) as follows: “Under subsection (a), if a respondent ‘fails to provide [requested] information by the deadlines for submission, Commerce shall fill in the gaps with ‘facts otherwise available.’ The focus of subsec- tion (a) is respondent’s failure to provide information. The reason for the failure is of no moment.” 337 F.3d 1373 , 1381 (Fed. Cir. 2003) (brackets and emphasis in original). Nippon Steel’s characterization of subsection (a) is over- broad and overlooks the provision’s careful nuances. The court only quoted subparagraph (B) of paragraph (2) of sub- section (a)—§ 1677e(a)(2)(B), which addresses the respond- ent’s failure to provide information in a timely fashion or in the form and manner requested. But § 1677e(a)(1), which the Nippon Steel court did not discuss, asks solely “whether necessary information is not available on the Court No. 19-00055 Page 16 Finally, § 1677e(a) provides that Commerce’s re- sorting to “facts otherwise available” is “subject to sec- tion 1677m(d) of this title.” Section 1677m(d) in turn provides that when information submissions are non- compliant with Commerce’s requirements, the Depart- ment “shall promptly inform the person submitting the response of the nature of the deficiency and shall, to the extent practicable, provide that person with an opportunity to remedy or explain the deficiency in light of the time limits established for the completion of investigations or reviews under this subtitle.” 19 U.S.C. § 1677m(d). Thus, Commerce is to give no- tice of a deficiency and an opportunity to cure it, but the statute qualifies that obligation by allowing Com- merce to consider whether it would be “practicable” to do so and whether the statutory deadline for complet- ing the review would allow it. record.” 19 U.S.C. § 1677e(a)(1). If necessary information is missing, whatever the reason, regardless of whether it is due to the respondent’s failure to provide it, then Com- merce applies “facts otherwise available.” Alternatively, if the respondent acts or omits to act in specified ways in con- nection with the administrative record—regardless of the reason for the act and whether the information in question is necessary—then Commerce also applies “facts otherwise available.” See id. § 1677e(a)(2)(A)–(D). In short, Nippon Steel’s statement that “the focus of subsection (a) is re- spondent’s failure to provide information” is accurate only insofar as it applies to subparagraph (A) of paragraph (2) of subsection (a). See id. § 1677e(a)(2)(A) (allowing the use of “facts available” if a respondent “withholds information that has been requested” by Commerce). Court No. 19-00055 Page 17 b. Adverse inference The second step in the “adverse facts available” analysis focuses on whether “an interested party has failed to cooperate by not acting to the best of its abil- ity to comply with a request for information” from Commerce. 19 U.S.C. § 1677e(b)(1). If Commerce finds such a failure to cooperate, the Department “may use an inference that is adverse to the interests of that party in selecting from the facts otherwise available” and “is not required to determine, or make any adjust- ments to, a . . . weighted average dumping margin based on any assumptions about information the in- terested party would have provided if the interested party had complied with the request for information.” Id. § 1677e(b)(1)(A)–(B). The statute allows Commerce to use any dumping margin from any “segment of the proceeding under the applicable antidumping order,” including the highest such margin, and further pro- vides that Commerce need not corroborate any dump- ing margin applied in any other segment. Id. § 1677e(d)(1)(B), (d)(2), (c)(2). The “adverse inference” analysis focuses on the re- spondent’s “failure to cooperate to the best of its abil- ity, not its failure to provide requested information.” Nippon Steel, 337 F.3d at 1381 (cleaned up). For Com- merce to conclude that a respondent failed to cooperate “to the best of its ability” such that an adverse infer- ence is appropriate, “Commerce need only make two showings.” Id. at 1382 . First, Commerce must make “an objective showing that a reasonable and responsible importer would Court No. 19-00055 Page 18 have known that the requested information was re- quired to be kept and maintained under the applicable statutes, rules, and regulations.” Id. (citing Ta Chen Stainless Steel Pipe, Inc. v. United States, 298 F.3d 1330 , 1336 (Fed. Cir. 2002), for the point that Com- merce had reasonably expected an importer to main- tain records of an accused antidumping activity). Second, Commerce must show that the respond- ent’s failure to fully respond stems from “either: (a) failing to keep and maintain all required records, or (b) failing to put forth its maximum efforts to inves- tigate and obtain the requested information from its records.” Id. (emphasis added). The key is whether “it is reasonable for Commerce to expect that more forthcoming responses should have been made.” Id. at 1383 . Intentional conduct is not necessary—“[t]he statutory trigger for Commerce’s consideration of an adverse inference is simply a fail- ure to cooperate to the best of respondent’s ability, re- gardless of motivation or intent.” Id. C. Reviews Involving Non-Market Econo- mies As noted above, the antidumping statute requires that Commerce determine the subject merchandise’s “normal value” and then compare that value to the ex- port price or constructed export price. 19 U.S.C. § 1677b(a). When goods subject to an antidumping in- vestigation are produced in a country with a “non-mar- ket economy,” the statute requires Commerce to as- sume that home-market sales are not reliable Court No. 19-00055 Page 19 indicators of normal value because the economy is pre- sumed to be under state control. Taian Ziyang Food Co. v. United States, 637 F. Supp. 2d 1093 , 1105 (CIT 2009). A “non-market economy” is “any foreign country that [Commerce] determines does not operate on mar- ket principles of cost or pricing structures, so that sales of merchandise in such country do not reflect the fair value of the merchandise.” 19 U.S.C. § 1677 (18)(A). 1. Factors of production For merchandise imported from a non-market econ- omy country, the statute requires Commerce to determine the normal value of the subject mer- chandise on the basis of the value of the factors of production utilized in producing the merchan- dise and to which shall be added an amount for general expenses and profit plus the cost of con- tainers, coverings, and other expenses. . . . [T]he valuation of the factors of production shall be based on the best available information regard- ing the values of such factors in a market econ- omy country or countries considered to be appro- priate by [Commerce]. 19 U.S.C. § 1677b(c)(1) (emphasis added). “Factors of production” in § 1677b(c)(1) include, but are not limited to, hours of labor required, quantities of raw materials employed, amounts of energy and other utilities consumed, and representative capital Court No. 19-00055 Page 20 cost (including depreciation). Id. § 1677b(c)(3). In val- uing factors of production as described above, Com- merce must “utilize, to the extent possible, the prices or costs of factors of production in one or more market economy countries that are—(A) at a level of economic development comparable to that of the nonmarket economy country, and (B) significant producers of com- parable merchandise.” Id. § 1677b(c)(4). In other words, for purposes of this case, “factors of production” means all the different things that go into farming fish—fish feed, electricity, labor, etc. All these things cost money, so theoretically the product’s price should reflect these costs. The statute essentially re- quires Commerce to determine what the producer would have spent to prepare the subject merchandise if the country of origin had a market economy rather than a non-market economy. See Lasko Metal Prods., Inc. v. United States, 810 F. Supp. 314 , 316–17 (CIT 1992) (“With respect to [non-market economy] goods, the statute’s goal is to determine what the cost of pro- ducing such goods would be in a market economy.”), aff’d, 43 F.3d 1442 (Fed. Cir. 1994); see also Baoding Yude Chem. Indus. Co. v. United States, 170 F. Supp. 2d 1335 , 1345 (CIT 2001) (explaining that the task is not to construct the cost of producing the sub- ject merchandise in a particular market economy, but rather to use data from comparable market-economy countries to construct what the cost of production would have been in the actual country of origin if it were a market economy country). Court No. 19-00055 Page 21 2. Control numbers To tie the factors of production to the subject mer- chandise in a meaningful way, Commerce uses a re- porting system it calls “control numbers.” This term is “Commerce jargon for a unique product defined in terms of a hierarchy of specified physical characteris- tics determined in each antidumping proceeding.” GODACO Seafood Joint Stock Co. v. United States, 435 F. Supp. 3d 1342 , 1348 n.1 (CIT 2020) (cleaned up) (quoting Union Steel v. United States, 823 F. Supp. 2d 1346 , 1349 (CIT 2012)). “All products whose product hierarchy characteristics are identical are deemed to be part of the same [control number] and are regarded as ‘ “identical” merchandise’ for the purposes of com- paring export prices to [normal value].” Am. Tubular Prods., LLC v. United States, Slip Op. 15-98, at 5 n.1, 2015 WL 5236010 , at *2 n.1 (CIT Aug. 28, 2015) (quot- ing Union Steel, 823 F. Supp. 2d at 1349).14 Control numbers vary from case to case. Com- merce’s questionnaires provide the control numbers applicable in a particular review. See An Giang Fish- eries Import & Export Joint Stock Co. v. United States, 287 F. Supp. 3d 1361 , 1367 n.7 (CIT 2018). Commerce insists that respondents tie their factors of production to control numbers because “Commerce uses the re- spondents’ [control number–]specific [factors of 14To be clear, a control number is not a serial number. Whereas a serial number might denominate a specific widget to distinguish it from otherwise identical widgets, a control number serves a more abstract purpose: describing the characteristics of a class or group of widgets. Court No. 19-00055 Page 22 production] to construct the value of the product sold by the respondent company in the United States to en- sure that a fair comparison is made between the U.S. price and normal value.” Thuan An Prod. Trading & Serv. Co. v. United States, 348 F. Supp. 3d 1340 , 1353 (CIT 2018) (cleaned up). Commerce employs the “control number” system because often an antidumping investigation will in- volve a range of products that are similar but not iden- tical. Commerce uses “control numbers” to distinguish such products from each other to allow a comparison of normal value and export price as to each unique product, as determined based on physical characteris- tics (for example, in this case, whether a frozen fish fillet is glazed or unglazed). Each unique product is as- signed a particular control number based on its char- acteristics.15 3. Country-wide versus separate rates Another special consideration in non-market econ- omy cases involves the “country-wide rate” versus 15 Because similar products may have different physical characteristics despite falling within the same antidump- ing order, the products may have different factors of pro- duction unique from one another (for example, the glazed fish fillet will involve some expense for whatever is used in the glazing process, while the unglazed fillet will not). “Be- cause some of these specific factors of production may cost more than others, Commerce compares the U.S. sales price and factors of production for unique products, i.e., those with the same [control numbers], to obtain the most accu- rate dumping margins.” Yantai Xinhe Steel Structure Co. v. United States, 36 CIT 1035 , 1051 (2012). Court No. 19-00055 Page 23 “separate rates.” Because Commerce presumes that all commercial industries in a non-market economy coun- try operate under government control, all entities within such a country producing subject merchandise will receive a single country-wide antidumping duty rate unless an individual entity demonstrates that it is both de jure and de facto independent of the central government. Sigma Corp. v. United States, 117 F.3d 1401 , 1405 (Fed. Cir. 1997); see also Zhejiang Zhaofeng Mech. & Elec. Co. v. United States, 355 F. Supp. 3d 1329 , 1333 (CIT 2018) (explaining what the entity must establish to receive a separate rate). Thus, in the context of an administrative review of an antidumping order applicable to merchandise from a non-market economy country, the most recent single country-wide rate applicable to the subject merchan- dise continues to apply unless (a) Commerce reviews, and revises, the country-wide rate or (b) a particular respondent applies for, and receives, a separate rate (in which case the nationwide single rate continues to apply to other companies who do not receive separate rates). See Certain Frozen Fish Fillets from the Social- ist Republic of Vietnam: Preliminary Results of the An- tidumping Duty Administrative Review, Preliminary Determination of No Shipments and Partial Rescission of the Antidumping Duty Administrative Review; 2016–2017, 83 Fed. Reg. 46,479 , 46,480 (Dep’t Com- merce Sept. 13, 2018). Factual and Procedural Background This litigation stems from a 2003 antidumping or- der on frozen fish fillets imported from Vietnam. See Court No. 19-00055 Page 24 Notice of Antidumping Duty Order: Certain Frozen Fish Fillets from the Socialist Republic of Vietnam, 68 Fed. Reg. 47,909 (Dep’t Commerce Aug. 12, 2003). That order found that certain frozen fish fillets from Vietnam were being sold in the U.S. at less than fair value and imposed cash deposits based on the esti- mated weighted-average margins. The order imposed specific rates for certain exporters and a “Vietnam- wide” rate for anyone not specifically listed. See id. at 47 ,909–10.16 In the intervening seventeen years, that order underwent multiple administrative reviews as described above. A. The Review Commerce commenced the 14th administrative re- view of the 2003 antidumping order after receiving a request from Catfish Farmers of America17 and sev- eral of its constituent members (collectively, “Catfish Farmers”) to review the rate as to multiple entities, including several affiliated Vietnamese producers known collectively as the Hung Vuong Group.18 The 16Commerce had previously determined that Vietnam is a “non-market economy” for purposes of U.S. antidumping laws. See Notice of Final Antidumping Determination of Sales at Less Than Fair Value and Affirmative Critical Cir- cumstances: Certain Frozen Fish Fillets from the Socialist Republic of Vietnam, 68 Fed. Reg. 37,116 , 37,119 (Dep’t Commerce June 23, 2003). That designation remains in ef- fect. 17Catfish Farmers of America is a trade association repre- senting domestic catfish farmers and processors. 18Hung Vuong includes the following companies: An Giang Fisheries Import & Export Joint Stock Company, also Court No. 19-00055 Page 25 period of review was August 1, 2016, to July 31, 2017, the 12-month period preceding the anniversary month of the original August 2003 antidumping order. See ECF 61-1, at 62.19 No party asked Commerce to review the Vietnam- wide rate as part of the 14th administrative review, so the preexisting rate of $2.39 per kilogram continued to apply to companies who had not applied for, and re- ceived, a separate rate. 83 Fed. Reg. at 46,480. Com- merce selected mandatory respondents for the review; among them was Hung Vuong. 1. Commerce preliminarily assigned Hung Vuong a $0.00 dumping margin. After selecting Hung Vuong as a respondent, Com- merce propounded a series of lengthy questionnaires.20 Hung Vuong submitted extensive information in re- sponse. Commerce preliminarily determined that Hung Vuong was entitled to separate rate status and as- signed it a dumping margin of zero. 83 Fed. Reg. known as Agifish; Asia Pangasius Company Limited; Eu- rope Joint Stock Company; Hung Vuong Joint Stock Com- pany; Hung Vuong Mascato Company, Limited; Hung Vuong–Vinh Long Co., Ltd.; and Hung Vuong–Sa Dec Co., Ltd. ECF 25-5, at 1 n.2. 19In this opinion, pagination references in citations to the Court record are to the pagination found in the ECF header at the top of each page. 20 Commerce’s original questionnaire is part of the public joint appendix. ECF 61-1, at 99–212. Court No. 19-00055 Page 26 at 46,480.21 Commerce based its preliminary determi- nation on the U.S. sales and factors of production da- tabases Hung Vuong submitted during the review pro- cess in response to Commerce’s questionnaires. ECF 61-1, at 691. 2. Commerce issued supplemental ques- tionnaires and conducted verifica- tion in Vietnam. Meanwhile, Catfish Farmers requested that Com- merce verify Hung Vuong’s questionnaire answers. ECF 61-1, at 1160. After Commerce issued its prelim- inary determination, but prior to verification, Catfish Farmers also asked Commerce to issue a supple- mental questionnaire to probe Hung Vuong’s relation- ship with its American customers, alleging that “the record evidence seriously calls into question whether [Hung Vuong’s] sales with its U.S. customers consti- tute arm’s-length transactions.” Id. at 708–09. Commerce then issued a supplemental question- naire partially related to Hung Vuong’s sales data and partially related to Hung Vuong’s customers. The 21 “When either a respondent’s weighted-average dumping margin is zero or de minimis, or an importer-specific ad valorem assessment rate is zero or de minimis, Commerce will instruct CBP to liquidate appropriate entries without regard to antidumping duties.” 83 Fed. Reg. at 46,480–81 (citing 19 C.F.R. § 351.106 (c)(2)). Thus, under Commerce’s preliminary determination, Hung Vuong’s frozen fish fil- lets would have been subject to no antidumping duty at all, though they would still have been subject to normal import duties, if any, that would otherwise apply. Court No. 19-00055 Page 27 portion relating to customers directed Hung Vuong to respond to the questions or, if Hung Vuong were una- ble to do so, to forward the questions to the customers for responses. Id. at 753–61 (questionnaire). Hung Vuong responded to the sales data portion of the ques- tionnaire, id. at 763–818, and forwarded the “cus- tomer” portion to its customers for their input, but many of the customers refused to respond in whole or in part, id. at 820–52 (redacted customer responses). Commerce thereafter conducted verification in Vi- etnam. Before doing so, Commerce provided Hung Vuong a detailed outline of the matters the agency ex- pected to examine and the types of documents Com- merce would ask to review. See id. at 854–71. 3. Commerce issued its final decision and assigned Hung Vuong a $3.87/kg dumping margin after applying facts available with an adverse inference. After verification, the parties submitted briefing, and then Commerce rendered an “issues and decision memorandum” assigning Hung Vuong an antidump- ing duty rate of $3.87 per kilogram. See Certain Frozen Fish Fillets from the Socialist Republic of Vietnam: Is- sues and Decision Memorandum for the Final Results of the Fourteenth Antidumping Duty Administrative Review: 2016–2017 (Apr. 29, 2019), ECF 25-5, at 37.22 22 Commerce also published the results of this final deci- sion in the Federal Register. See Certain Frozen Fish Fil- lets from the Socialist Republic of Vietnam: Final Results, and Final Results of No Shipments of the Antidumping Court No. 19-00055 Page 28 In reaching this determination, Commerce first ad- dressed four principal issues: (1) Hung Vuong’s failure to retain source documents, ECF 25-5, at 18–24; (2) Hung Vuong’s customer relationships, id. at 25–29; (3) Hung Vuong’s control number reporting, id. at 29– 32; and (4) the accuracy of Hung Vuong’s factors of pro- duction, id. at 32–36. As to each of these issues, Com- merce determined that the administrative record was deficient for various reasons, which warranted using “facts otherwise available” to complete the record pur- suant to 19 U.S.C. § 1677e(a), and that Hung Vuong had failed to cooperate to the best of its ability to com- plete the record, which in turn warranted using an in- ference that is adverse to the interests of Hung Vuong “in selecting among the facts otherwise available.” 19 U.S.C. § 1677e(b)(1)(A). Commerce then applied “total AFA,” trade law jar- gon for total “adverse facts available.” ECF 25-5, at 35–36; see also supra Statutory and Regulatory Background at B.4.a.–b. (explaining “AFA”). In select- ing among facts otherwise available, Commerce used an adverse inference by exercising its discretion under the statute to apply the highest antidumping margin previously applied under authority of the original 2003 antidumping order, $3.87 per kilogram. See ECF 25-5, at 36–37. Duty Administrative Review; 2016–2017, 84 Fed. Reg. 18,007 (Dep’t Commerce Apr. 29, 2019). Court No. 19-00055 Page 29 B. This Lawsuit In response to Commerce’s final decision imposing a $3.87-per-kilogram antidumping margin, Hung Vuong commenced this litigation. ECF 1. Its complaint asks the Court to reject Commerce’s final decision as “not supported by substantial evidence and otherwise not in accordance with law,” ECF 10, at 19, and re- mand the matter to Commerce for further proceedings. Id. Catfish Farmers intervened as of right to defend Commerce’s final decision. ECF 19. Thereafter, Hung Vuong moved to require Commerce to add additional documents to the administrative record, including cor- respondence between members of Congress and Com- merce and narrative materials Hung Vuong provided to Commerce during verification. ECF 29. In response, the government acknowledged the omissions, ECF 33, and the Court granted the motion, ECF 34. Hung Vuong then filed the pending motion for judg- ment on the agency record. ECF 38; see also USCIT R. 56.2. After full briefing and oral argument, Hung Vuong submitted certain additional record materials in response to a question the Court asked during argu- ment. See ECF 69 (public); ECF 68 (confidential). Jurisdiction and Standard of Review Hung Vuong brings this suit under 19 U.S.C. § 1516a(a)(2)(A)(i)(I), (a)(2)(B)(iii). The Court has sub- ject-matter jurisdiction over such actions pursuant to 28 U.S.C. § 1581 (c). Court No. 19-00055 Page 30 In actions brought under 19 U.S.C. § 1516a(a)(2), “[t]he court shall hold unlawful any determination, finding, or conclusion found . . . to be unsupported by substantial evidence on the record, or otherwise not in accordance with law.” 19 U.S.C. § 1516a(b)(1)(B)(i). That is, the question is not whether the Court would have reached the same decision on the same record— rather, it is whether the administrative record as a whole permits Commerce’s conclusion. Substantial evidence has been defined as more than a mere scintilla, as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. To determine if substan- tial evidence exists, we review the record as a whole, including evidence that supports as well as evidence that fairly detracts from the sub- stantiality of the evidence. Nippon Steel Corp. v. United States, 337 F.3d 1373 , 1379 (Fed. Cir. 2003) (cleaned up). Analysis I. Hung Vuong Fails to Overcome the Pre- sumption That Commerce Acted in Good Faith. Hung Vuong asserts that after Commerce’s prelim- inary determination initially assigned Hung Vuong an antidumping margin of zero, Commerce “reversed its position in response to . . . congressional pressure.” ECF 38-1, at 18. Hung Vuong contends Commerce’s Court No. 19-00055 Page 31 volte-face after such congressional intervention amounts to bad faith. Id. at 19.23 The administrative record shows that members of Congress pressured Commerce about this case24 and that Commerce failed to memorialize that pressure in the administrative record as required by law.25 The 23 This issue was not raised in Hung Vuong’s complaint as a ground for relief. Hung Vuong later moved to supplement the administrative record to reflect communications be- tween members of Congress and Commerce, see ECF 28 (confidential motion); ECF 29 (public motion), but never moved to amend its complaint to assert bad faith as a ground for relief. Nevertheless, the government and Cat- fish Farmers do not object to Hung Vuong’s raising the is- sue now. Rule 15(b)(2) provides that “[w]hen an issue not raised in the pleadings is tried by the parties’ express or implied consent it will be treated in all respects as if it had been raised in the pleadings,” and while a party may move for leave to amend, “failure to amend does not affect the result of the trial of that issue.” USCIT R. 15(b)(2). There is no reason to apply a different principle to consideration of a dispositive motion, so the Court will consider Hung Vuong’s bad faith claim as if it had been raised in the com- plaint. 24See ECF 61-1, at 750–51; id. at 900. Most notably, a group of senators sent a letter to the Secretary of Com- merce asking him to make sure his personnel conducted Hung Vuong’s verification “rigorously.” Id. at 750. 25See 19 U.S.C. § 1677f(a)(3)(B) (“[Commerce] shall main- tain a record of any ex parte meeting between— . . . (B) the person charged with making the determination, or any per- son charged with making a final recommendation to that person, in connection with that proceeding, if information relating to that proceeding was presented or discussed at such meeting. The record of such an ex parte meeting shall Court No. 19-00055 Page 32 question is whether those facts have any legal signifi- cance. The D.C. Circuit, with its heavy administrative law docket, has a body of case law on this subject. Notably, ex parte communications do not automatically void an agency decision. Rather, the decision is voidable if the reviewing court finds the agency process to be so “ir- revocably tainted” as to make the agency’s decision un- fair, “either to an innocent party or to the public inter- est that the agency was obliged to protect.” PATCO v. Fed. Labor Relations Auth., 685 F.2d 547 , 564 (D.C. Cir. 1982). It is also important to consider whether the party allegedly aggrieved by the communications can demonstrate prejudice and can identify what argu- ments the party would have made had the communi- cations been disclosed. See id. at 572 . Ultimately, “ab- sent a strong showing to the contrary, an agency adju- dicator is presumed to act in good faith and to be capa- ble of ignoring considerations not on the record.” Id. at 573 (cleaned up); cf. Am-Pro Prot. Agency, Inc. v. United States, 281 F.3d 1234 , 1239–40 (Fed. Cir. 2002) (discussing presumption that government officials act in good faith and requiring clear and convincing evi- dence to show otherwise). include the identity of the persons present at the meeting, the date, time, and place of the meeting, and a summary of the matters discussed or submitted. The record of the ex parte meeting shall be included in the record of the pro- ceeding.”). Court No. 19-00055 Page 33 Here, the Court agrees with Hung Vuong that Com- merce breached its statutory obligation to memorialize its communications with third parties in the adminis- trative record. See supra note 25. Commerce commu- nicated with members of Congress shortly before veri- fication but failed to place anything on the record re- flecting those communications until August 12, 2019, almost four months after Commerce issued its final de- cision. See ECF 61-1, at 1074–92. Moreover, Com- merce only placed the information on the record after Hung Vuong learned of the communications and moved the Court for an order directing Commerce to supplement the record. Commerce’s actions certainly create an appearance of impropriety. That said, “appearance of impropriety” is not the applicable standard the Court must apply—rather, the question is whether Hung Vuong has clearly and con- vincingly demonstrated that Commerce’s proceedings were so “irrevocably tainted” as to make the agency’s decision unfair, PATCO, 685 F.2d at 564 , or otherwise demonstrated prejudice resulting from the ex parte communications. Id. at 572 . Hung Vuong has not carried that heavy burden. First, although members of Congress did request that Commerce conduct its review “rigorously,” there is no evidence in the administrative record to suggest that Commerce’s procedures in this case were any more or less “rigorous” than in other cases or that Commerce’s officials were so wholly cowed by Congress that they acted as Congress wished and disregarded the admin- istrative record. Court No. 19-00055 Page 34 Second, Commerce’s failure to memorialize its com- munications with members of Congress simply has no bearing on whether substantial evidence in the admin- istrative record permitted Commerce to apply facts otherwise available and to do so with an adverse infer- ence. As explained below, the Court concludes that substantial evidence mostly (but not entirely) supports Commerce’s conclusions. Finally, Hung Vuong’s counsel could not say what his client would have done had Commerce timely up- dated the administrative record to reflect communica- tions from members of Congress. ECF 70, at 21:2–23:4. That is, Hung Vuong cannot point to any prejudice re- sulting from Commerce’s failure to update the admin- istrative record in real time to reflect those communi- cations. In sum, even though Commerce’s failure to timely memorialize the congressional communications in the administrative record is inexcusable and reflects poorly on the Department, Hung Vuong has not shown any evidence at all—let alone clear and convincing ev- idence—that Commerce based its final decision on those communications rather than on the administra- tive record or that Hung Vuong was somehow thereby prejudiced. Accordingly, Hung Vuong has not carried its burden of rebutting the presumption of good faith that attaches to official action. Court No. 19-00055 Page 35 II. The Court Sustains in Part and Remands in Part Commerce’s Determination to Ap- ply Facts Otherwise Available with an Ad- verse Inference. The second principal issue before the Court is whether substantial evidence in the administrative record permitted Commerce to apply facts otherwise available with an adverse inference to Hung Vuong. Commerce concluded that the administrative rec- ord’s deficiencies were so “pervasive and persistent” as to prevent Commerce from using the record at all, and further concluded that these deficiencies resulted from Hung Vuong’s “failure to cooperate.” ECF 25-5, at 35– 36. In light of these findings, Commerce applied “total [adverse facts available]” because “it would be unduly difficult to apply partial [adverse facts available] by selecting from the facts available to remedy each of the deficiencies that impact each sale.” Id. at 36. Com- merce then used the highest margin applied in a pre- vious review of the 2003 antidumping order and cur- rently in effect, $3.87 per kilogram, and applied this rate to Hung Vuong. Id. at 36–37. The Court addresses in turn each of the four cate- gories of record deficiencies found by Commerce and then addresses Commerce’s decision to apply “total ad- verse facts available.” Court No. 19-00055 Page 36 A. Failure to Retain Source Documents26 Commerce found that Hung Vuong discarded “doc- uments kept in the normal course of business.” ECF 25-5, at 18 (title case removed). Commerce ex- plained that Hung Vuong is an experienced respond- ent27 represented by experienced counsel and should therefore “be expected to maintain essential records concerning the production of frozen fish fillets and be able to respond to Commerce’s reporting require- ments.” ECF 25-5, at 18. “During verification, Com- merce discovered that [Hung Vuong] did not maintain source documents beyond a few months for certain key areas of inquiry during verification. Specifically, [Hung Vuong] stated that it does not maintain source documents for farming feed consumption, production 26This discussion corresponds to Commerce’s findings in ECF 25-5, at 18–24. 27 Commerce noted that Hung Vuong member Agifish was a mandatory respondent in the antidumping investigation conducted in connection with the original 2003 order and that Commerce had conducted verification of Agifish’s questionnaire answers; Commerce also noted that Agifish had been a separate rate respondent in three administra- tive reviews. Commerce further noted that Hung Vuong— which included Agifish—was a mandatory respondent in the 9th, 10th, and 11th administrative reviews and under- went verification in the 11th review. “As such, because [Hung Vuong] or one of its collapsed members, Agifish, have been respondents in many administrative reviews and the investigation, and in several of those segments were verified, thus [Hung Vuong] is an experienced re- spondent.” ECF 25-5, at 18–19. Court No. 19-00055 Page 37 orders related to its [period-of-review] sales, and sales correspondence emails.” Id. at 19. 1. Commerce’s findings a. Feed consumption Commerce explained that fish feed, a producer’s largest farming cost, is a critical factor of production for respondents. ECF 25-5, at 19. Accordingly, Com- merce’s questionnaire sought specific data and docu- mentation showing, essentially, how much fish feed Hung Vuong used and what that fish feed cost. Id.; see also ECF 61-1, at 205–06 (Appendix X questions 15– 25). Commerce also asked for further fish feed data in a supplemental questionnaire. ECF 25-5, at 19. “An examination of [Hung Vuong’s] responses to these questions shows that [Hung Vuong] provided monthly summary charts of feed inventory and usage, purchase invoices and daily inventory in and out records.” Id. During verification, however, Commerce discov- ered a problem: It was unexpected, therefore, that when at- tempting to examine the source documents kept by [Hung Vuong] in the normal course of busi- ness [Hung Vuong] announced it had discarded its fish feed source documents and only kept the monthly summary sheets for Commerce to ex- amine. In fact, [Hung Vuong] stated that it only keeps such source documents for a few months before discarding them. This is in sharp contrast to other [factors of production] that Commerce examined at verification, where [Hung Vuong] Court No. 19-00055 Page 38 did keep various original source documents. For example, [Hung Vuong] retained source docu- ments for the Daily Production Report con- sistent with the narrative from its questionnaire responses. It is also in sharp contrast to its an- swers in its questionnaire responses, where it stated it kept such records for many years. Id. (cleaned up and emphasis added). b. Production records Commerce noted that in prior administrative re- views of the Vietnamese frozen fish antidumping or- der, the agency has emphasized that respondents must report their information on a control number– specific basis.28 Moreover, Commerce noted that in the 28 Commerce has enforced its control number reporting re- quirement since at least the 8th administrative review. See An Giang, 287 F. Supp. 3d at 1369. The Department in- cludes references to control number reporting in the stand- ard non-market economy questionnaire template posted on its website. See https://enforcement.trade.gov/question naires/nme/20131101/q-rev-nme-20131101.pdf at A-5 & n.8, C-5, D-2, D-6, and E-7 (accessed Nov. 17, 2020). The cover letter accompanying the initial questionnaire in the 14th review now before the Court admonished respond- ents to comply with the control number requirement, with the following sentence italicized in its entirety: “Accord- ingly, the Department is again reminding respondents that the [factors of production] reported in your submitted Sec- tion D must be reported on a [control number–]specific ba- sis, as outlined in the reporting requirements of this ques- tionnaire.” ECF 61-1, at 101 (italics removed). The refer- enced Section D of the questionnaire Commerce sent to the respondents echoed the reminder quoted above, and the Court No. 19-00055 Page 39 11th administrative review Commerce applied facts otherwise available (but not an adverse inference) to Hung Vuong “for failing to report [factors of produc- tion] on a [control number–]specific basis that re- flected its production of fillet types it sold to the United States during the [period of review], and failing to re- port [factors of production] that accurately accounted for the water soaking levels of the fillets they sold to the United States.” ECF 25-5, at 20. In the current (14th) review, Commerce’s reliance on the control number methodology prompted the agency to send Hung Vuong supplemental question- naires that, inter alia, asked that control number–spe- cific data be tied to source documents. Id. at 20–21. Hung Vuong’s responses said the production process began with whole live fish and that the only produc- tion-related documents the company produced were a “Daily Production Report” and a “finished goods inven- tory report.” Id. at 21. At verification, Commerce learned that Hung Vuong’s production process actually begins with a “production order” instructing each factory on the quantity and specifications to be produced, but when Commerce asked to examine these documents, com- pany officials said they discard production orders. “Although in its questionnaire responses [Hung questionnaire also emphasized that the respondent must provide information about the quantity and value of all fac- tors of production, id. at 194–95, and contained a series of questions tying factors of production to control numbers, id. at 204–05, 208. Court No. 19-00055 Page 40 Vuong] stated that its [sic] keeps this type of original production source documents [sic] for many years, in the end, Commerce was unable to examine any pro- duction orders at verification. This is in sharp contrast to other production documents Commerce examined at verification, where [Hung Vuong] did keep various source documents.” Id. (cleaned up). c. Sales correspondence Commerce observed that “[a]s an experienced re- spondent which has undergone verification before, [Hung Vuong] is well aware that for many, many years the verification outline has stated that . . . Commerce will examine sales negotiation correspondence.” ECF 25-5, at 22. During verification, however, Com- merce learned Hung Vuong deletes sales confirmation e-mails after a few months to save server space and to “reduce clutter” in the company’s records, and Com- merce also learned Hung Vuong deleted the entirety of one salesperson’s e-mail correspondence when she left the company. Id. Accordingly, Commerce was “unable to verify the negotiation of prices, quantities, and terms of sales because [Hung Vuong] deleted the emails that would have provided this information.” Id. Court No. 19-00055 Page 41 2. The administrative record permitted Commerce to apply facts otherwise available with an adverse inference as to the failure to retain source doc- uments. a. Facts otherwise available Based on the foregoing source document deficien- cies, Commerce concluded that necessary information was missing from the administrative record for pur- poses of 19 U.S.C. § 1677e(a)(1), ECF 25-5 at 23, and that by discarding source documents for fish feed, pro- duction records, and sales negotiation e-mails, Hung Vuong withheld requested information for purposes of 19 U.S.C. § 1677e(a)(2)(A), significantly impeded Com- merce’s investigation for purposes of 19 U.S.C. § 1677e(a)(2)(C), and provided information that could not be verified for purposes of 19 U.S.C. § 1677e(a)(2)(D). Id. at 22–24. Any one of these four findings allowed Commerce to apply “facts otherwise available” under 19 U.S.C. § 1677e(a).29 29 At oral argument, Hung Vuong’s counsel conceded that source documents had been discarded but disputed whether any of that information mattered. ECF 70, at 11:25–12:23. Hung Vuong’s briefing likewise argues that the missing source documents were not, in Hung Vuong’s opinion, “necessary” information, asserting that the ab- sence of “necessary” information is “required” before Com- merce can resort to facts otherwise available. See, e.g., ECF 58, at 13–14. Hung Vuong overlooks the statute’s use of the disjunctive “or.” As discussed above, see supra Stat- utory and Regulatory Background Part B.4.a., the “facts otherwise available” statute is a multi-layered provision Court No. 19-00055 Page 42 Here, the Court need not address each statutory ba- sis invoked by Commerce to apply facts otherwise available, as substantial evidence permitted Com- merce’s conclusion that Hung Vuong provided infor- mation that “cannot be verified.” 19 U.S.C. § 1677e(a)(2)(D). It is undisputed that Hung Vuong did not retain source documents for fish feed consumption, production orders related to control numbers during the period of review, and sales correspondence e-mails. See, e.g., ECF 38-1, at 33 (Hung Vuong admission that it routinely “discards” source documents). Commerce sought this source document infor- mation precisely to verify Hung Vuong’s responses to Commerce’s initial and supplemental questionnaires. Because the discarded source documents prevented verification, Commerce permissibly applied facts oth- erwise available. See, e.g., Yantai Timken Co. v. United States, 521 F. Supp. 2d 1356 , 1375 (CIT 2007) (Com- merce permissibly “resort[ed] to facts available” when respondent “supplied information regarding rebates and commissions that could not be verified and further that uses the word “or” multiple times, such that any one (or more) of the enumerated conditions is an independent basis for Commerce to apply facts otherwise available. One such ground is when “necessary information is not availa- ble on the record.” 19 U.S.C. § 1677e(a)(1) (emphasis added). Another such ground, however, is when a respond- ent provides “information [requested by Commerce] but the information cannot be verified.” 19 U.S.C. § 1677e(a)(2)(D) (emphasis added). As discussed below, the problem here is that Hung Vuong’s discarding of source documents pre- vented verification of information in the administrative record. Court No. 19-00055 Page 43 failed to provide source documents requested by Com- merce”). This is so even though Hung Vuong offered secondhand “summary reports” purporting to reflect information in original source documents. As the Fed- eral Circuit has noted, Commerce is entitled to insist on the original records because “failure to submit pri- mary source documentation” means that Commerce is “unable to verify the accuracy of the information sub- mitted.” Thyssen Stahl AG v. AK Steel Corp., No. 97-1509, 1998 WL 455076 , at *5 (Fed. Cir. July 27, 1998) (“Thyssen’s internally generated commercial in- voices . . . presumably depended upon information con- tained in actual source documents, but the internally generated documents cannot, for the purpose of verifi- cation, replace the actual source documents.”). Finally, § 1677e(a) provides that Commerce’s resort to “facts otherwise available” for deficiencies in the ad- ministrative record is “subject to section 1677m(d) of this title.” 19 U.S.C. § 1677e(a). Section 1677m(d) pro- vides that if Commerce “determines that a response to a request for information under this subtitle does not comply with the request,” Commerce must “promptly inform the person submitting the response of the na- ture of the deficiency and shall, to the extent practica- ble, provide that person with an opportunity to remedy or explain the deficiency in light of” the applicable time limits. 19 U.S.C. § 1677m(d). Here, as the government’s counsel noted at oral ar- gument, Hung Vuong’s admission that the source doc- uments no longer existed made it impracticable for Court No. 19-00055 Page 44 Commerce to give Hung Vuong a chance to supple- ment the record. ECF 70, at 64:9–65:23. As Hung Vuong had discarded the relevant source documents, it would have been futile for Commerce to give Hung Vuong another chance to produce them. Cf. Ta Chen Stainless Steel Pipe, Inc. v. United States, 298 F.3d 1330 , 1338 (Fed. Cir. 2002) (“[Section 1677m(d)] only applies when a ‘response to a request’ is deemed to not comply. A failure to respond is not the same as a ‘re- sponse’ as required by the statute.”). More importantly, the Court construes § 1677m(d) as inapplicable at the verification stage. Verification— unlike Commerce’s questionnaires sent to respondents at the beginning of an investigation or an administra- tive review—does not entail a “request for information under this subtitle.” 19 U.S.C. § 1677m(d). Instead, verification entails “verify[ing] information” previ- ously provided by a respondent in its questionnaire an- swers. Id. § 1677m(i). Thus, insofar as a respondent’s questionnaire an- swers on their face comply with Commerce’s infor- mation requests, § 1677m(d) does not apply if Com- merce, upon verification, determines that those ques- tionnaire answers are inaccurate. In short, verification is not an opportunity for a do-over; instead, the pur- pose of verification is to confirm information previ- ously submitted by a respondent in response to Com- merce’s requests for information. Court No. 19-00055 Page 45 b. Adverse inference Commerce further determined that in applying facts otherwise available based on its inability to com- plete verification due to missing source documents, an adverse inference was warranted because Hung Vuong “failed to cooperate to the best of its ability.” ECF 25-5, at 23; see 19 U.S.C. § 1677e(b)(1)(A) (per- mitting an adverse inference when “an interested party has failed to cooperate by not acting to the best of its ability to comply with a request for information”). Commerce reasoned that Hung Vuong, an experi- enced respondent, “produces the records sought by Commerce in the ordinary course of business, but chose to discard them so that Commerce would not be able to examine them at verification.” ECF 25-5, at 23 (emphasis added). “To allow [Hung Vuong] to deter- mine which source documents it will allow Commerce to examine at verification is to allow [Hung Vuong] to control this proceeding.” Id. Hung Vuong challenges Commerce’s decision to ap- ply an adverse inference, arguing that “there is noth- ing untoward or surprising about” Hung Vuong dis- carding records—Hung Vuong “explained to Com- merce, on multiple occasions, that it does not always keep underlying source records once the information has been transferred to more regularized monthly or computerized records.” ECF 38-1, at 29 (cleaned up). Hung Vuong further argues that Vietnamese fish pro- ducers often do not keep the sorts of records Commerce asked to review in this case. Id. at 30. Court No. 19-00055 Page 46 For purposes of whether Commerce permissibly ap- plied an adverse inference based on Hung Vuong’s fail- ure to maintain source documents, the question here is whether Commerce has made “an objective showing that a reasonable and responsible importer would have known that the requested [source documents were] required to be kept and maintained under the applicable statutes, rules, and regulations.” Nippon Steel, 337 F.3d at 1382 (emphasis added). Hung Vuong clearly produced source documents in the ordinary course of business, but would a reasonable and respon- sible producer have retained all such documents to re- spond to an investigation or verification by Commerce? According to Commerce’s final decision, “[w]hile courts have held the application of AFA impermissible where companies do not keep records in the ordinary course of business, this is not the case here.” ECF 25-5, at 23 & n.176 (emphasis added and citing F.lli De Cecco Di Filippo Fara S. Martino S.p.A. v. United States, 216 F.3d 1027 (Fed. Cir. 2000), and Borden, Inc. v. United States, 4 F. Supp. 2d 1221 , 1247 (CIT 1998)). There’s a lot in that sentence, and the Court will attempt to unpack it. First, neither cited decision even addresses, much less supports, the proposition that Commerce oddly at- tributes to both.30 Nevertheless, the Court takes Com- merce’s statement as an admission by it that a “rea- sonable and responsible” producer is only obligated to 30Hung Vuong parrots verbatim Commerce’s inaccurate characterization of De Cecco, down to the missing pincite. See ECF 38-1, at 33. Court No. 19-00055 Page 47 retain records that it keeps in the ordinary course. Consistent with that admission, Commerce’s standard questionnaire instructions require respondents to “[i]dentify any source documents maintained in the normal course of business you have relied on in prepar- ing your response, and specify the cities where these documents are maintained.” See questionnaire cited supra note 28, at G-10 (emphasis added). Commerce is free to put respondents on notice that all (or some sub- set of) source documents must be retained, but Com- merce has not done so (except as discussed below). In- stead, as the questionnaire indicates, Commerce’s gen- erally applicable standard is whether source docu- ments are “maintained in the normal course of busi- ness.” Second, the Court does not understand Commerce’s unexplained, if not incoherent, assertion that “this [impermissibly applying an adverse inference for fail- ure to retain records in the ordinary course of busi- ness] is not the case here.” Hung Vuong argues that the challenged source documents were not kept in the normal course of business, and Commerce did apply an adverse inference. So it is the case here that Com- merce is applying an adverse inference based on the failure to keep records in the ordinary course of busi- ness. Under Commerce’s own standard questionnaire instructions, Hung Vuong had no reason to expect that it had to retain all original source documents. There is more to the matter, however, than simply the standard questionnaire instructions. Commerce also sent Hung Vuong a verification outline listing the “required source documents” Commerce would seek to Court No. 19-00055 Page 48 examine during verification. See, e.g., ECF 61-1, at 854. Commerce has used this verification outline “for many, many years.” ECF 25-5, at 22. The outline stated that Commerce wished to re- view, inter alia, “[p]urchase agreements and records of payment made for material costs, charges and ex- penses,” “raw material inventory ledger[s],” and “[m]onthly records (for [period of review] of raw mate- rial consumption at each production center,” ECF 61-1, at 858–59, material that necessarily in- cluded fish feed purchase records. Similarly, section XIII of the verification outline, headed “Material In- puts,” explained that Commerce would thoroughly re- view the costs of producing the frozen fish fillets, in- cluding how Hung Vuong purchased raw materials from suppliers and “the amounts purchased for all fac- tors,” which in context clearly referred to factors of production such as fish feed. Id. at 867–68. The verification outline also listed “[p]roduction or- ders,” which Commerce said would “serve as substan- tiation for reported information about individual sales as well as total sales figures for the [period of review].” Id. at 858. As to sales correspondence, the outline stated that Commerce would “ ‘trace’ the selected sale from initial inquiry/order through your records to re- ceipt of payment from the customer,” and that “a com- plete set of documents should be prepared for [each se- lected] sale.” Id. at 864 (emphasis added). Commerce’s verification outline is why Hung Vuong’s status as an “experienced respondent” mat- ters. ECF 25-5, at 18–19. An inexperienced Court No. 19-00055 Page 49 respondent, or a respondent that had never been sub- ject to verification, would have received only the stand- ard questionnaire with the general instruction about “source documents maintained in the normal course of business” and thus may not have seen a need to retain all source documents, but an experienced respondent that had previously received the verification outline would know what types of source documents Com- merce would ask for at verification, such that it would be objectively unreasonable for the experienced re- spondent to assume that disposing of those materials was acceptable. The Court therefore concludes, in view of this veri- fication outline—which imposed stricter source docu- ment retention obligations than Commerce’s general instructions—that Hung Vuong, as an experienced re- spondent, “would have known that the requested [source documents] were required to be kept and main- tained under the applicable statutes, rules, and regu- lations.” Nippon Steel, 337 F.3d at 1382 . Substantial evidence therefore permitted Commerce to apply an adverse inference based on Hung Vuong’s failure to re- tain these source documents, regardless of its business practices.31 31 Notably, in litigation following Commerce’s 11th admin- istrative review of the same antidumping order at issue in this case, Hung Vuong argued that it was impossible for it to comply with Commerce’s data requests because it did not track sales and factors of production based on product char- acteristics identified by control numbers. Commerce re- jected that argument, finding Hung Vuong could still track information in the way Commerce requested even if that Court No. 19-00055 Page 50 In addition, “a court may affirm the decision of an agency on a ground other than the ground given by the agency, so long as it is clear that the agency would have reached the same decision if it had been aware that the ground it invoked was legally unavailable, or if the decision does not depend on making a finding of fact not previously made by the agency.” Oracle Am., Inc. v. United States, 975 F.3d 1279 , 1291 (Fed. Cir. 2020). Here, if the Court were to find that Hung Vuong was not on notice of the need to maintain source docu- ments, the Court would find that substantial evidence permitted Commerce’s conclusion that Hung Vuong’s questionnaire answers regarding the feed consump- tion and production record source documents were in- accurate. See ECF 25-5, at 19 (Hung Vuong’s question- naire answers inaccurately stated that feed consump- tion records were “kept for many years”); id. at 21 (“Although in its questionnaire responses HVG stated that it keeps this type of original production source documents for many years, in the end, Commerce was unable to examine any production orders at verifica- tion.”). Those findings in turn supported Commerce’s con- clusion that Hung Vuong failed to cooperate to the best were not Hung Vuong’s normal business practice. The Court agreed. See An Giang, 287 F. Supp. 3d at 1370–71. Commerce initiated the 11th review in 2014 and issued its final decision in 2016. Id. at 1364, 1365. Thus, Hung Vuong was on notice well prior to the 14th administrative review that Commerce would not accept the “not our business practice” argument, especially in view of Nippon Steel’s ad- monition that “inadequate record keeping” is inexcusable. Court No. 19-00055 Page 51 of its ability. See id. at 23 (relying on all of “the above” findings to conclude that Hung Vuong did not cooper- ate to the best of its ability); see also Nippon Steel, 337 F.3d at 1383 (“[I]naccurate reporting[] surely evinces a failure to cooperate . . . .”). Accordingly, the Court determines that Commerce permissibly applied an adverse inference in connection with the missing feed consumption and production rec- ords documents. That inference was permissible even if Hung Vuong had not been on notice of the require- ment to maintain the discarded source documents, be- cause Hung Vuong’s questionnaire answers about its document retention policies were inaccurate. Finally, Hung Vuong also objects that Commerce has sometimes excused prior respondents’ inadequate recordkeeping and asserts that Commerce’s allegedly disparate treatment of Hung Vuong is an arbitrary change in policy. See ECF 38-1, at 33–34. Specifically, Hung Vuong cites a Commerce decision from the 8th review as to a different respondent. There, Commerce did not require the respondent to “keep or maintain certain records beyond which the Department had ap- proved in prior segments, absent explicit evidence that would call into question the company’s document re- tention system.” Certain Frozen Fish Fillets from the Socialist Republic of Vietnam: Issues and Decision Memorandum for the Final Results of the Eighth Ad- ministrative Review and Aligned New Shipper Re- views, at 45 (Mar. 13, 2013). Commerce’s final decisions in prior reviews do not “establish a policy” as Hung Vuong contends. “Each Court No. 19-00055 Page 52 administrative review is a separate exercise of Com- merce’s authority and allows for different conclusions based on different facts in the record. Commerce’s findings with respect to [a respondent’s] reporting methodology in prior segments of this proceeding do not relieve [any respondent] of its burden to comply with Commerce’s requests in [a later] segment.” ABB Inc. v. United States, 437 F. Supp. 3d 1289 , 1301 (CIT 2020) (cleaned up); see also Hyundai Heavy Indus. Co. v. United States, 332 F. Supp. 3d 1331 , 1342 (CIT 2018) (finding respondent could not excuse its failure to comply with Commerce’s questionnaires by pointing to Commerce’s treatment of that respondent’s infor- mation in prior administrative reviews). B. Hung Vuong’s Relationship with Cus- tomers32 Catfish Farmers contends that Hung Vuong may be affiliated with its U.S. customers.33 Sales to an affili- ated entity may not be at arm’s length and thus may not reflect commercial reality.34 Therefore, at oral 32This discussion corresponds to Commerce’s findings in ECF 25-5, at 24–29. 33 The statutory basis for this argument is 19 U.S.C. § 1677 (33)(G), which provides: “The following persons shall be considered to be ‘affiliated’ or ‘affiliated persons’: . . . (G) Any person who controls any other person and such person. For purposes of this paragraph, a person shall be considered to control another person if the person is legally or operationally in a position to exercise restraint or direc- tion over the other person.” 34As previously discussed, antidumping duties are “equal to the amount by which the normal value exceeds the Court No. 19-00055 Page 53 argument counsel for Catfish Farmers explained that if Hung Vuong is affiliated with its U.S. customers, it could potentially manipulate the sales price to receive a lower dumping margin than might otherwise be the case. ECF 70, at 81:25–84:20. Prior to verification, Commerce issued supple- mental questionnaires to both Hung Vuong and its customers in “an attempt to probe [Hung Vuong’s] pos- sible affiliation with these companies, the role of ex- employees at these companies, how [Hung Vuong] does business with these companies and whether the sales are made at arm’s length, and information about sales to the ultimate purchasers, among other things.” ECF 25-5, at 25. export price (or the constructed export price) for the mer- chandise.” 19 U.S.C. § 1673 . The “export price” is the price the producer or exporter charges to an unaffiliated cus- tomer either within, or for exportation to, the United States, while the “constructed export price” is the price the affiliated purchaser charges within the United States to a purchaser not affiliated with the producer or exporter. Mid Continent Steel & Wire, Inc. v. United States, 203 F. Supp. 2d 1295 , 1298–99 (CIT 2017). Commerce makes certain statutory adjustments to the price of goods to re- flect various costs involved in preparing the goods for sale in the United States, and the adjustments to “constructed export price” are more extensive than the adjustments to “export price.” See 19 U.S.C. § 1677a(c) (listing adjust- ments to both), (d) (listing additional adjustments to “con- structed export price”). Court No. 19-00055 Page 54 1. Commerce’s findings Commerce concluded that “three important pieces of information [were] missing from the record” for pur- poses of assessing the relationship between Hung Vuong and its customers. ECF 25-5, at 27. First, be- cause Hung Vuong had deleted the e-mail messages containing sales correspondence with customers, that information was not in the record. Id. Second, Hung Vuong’s customers did not respond to Commerce’s questionnaires, and that information would have shed light on the affiliation issue. Id. Third, Hung Vuong failed to retain production orders, which would have shown specific details for particular sales. Id. at 27– 28.35 35 The Court pauses here to note that aspects of Com- merce’s final decision are incoherent and frustrate rea- soned judicial review. For instance, Commerce at times characterizes Hung Vuong’s action as “discarding” produc- tion orders, see ECF 25-5, at 23 (referring to Hung Vuong’s “convenient discarding of these documents”), but elsewhere Commerce characterizes Hung Vuong’s action as a “refusal to provide production orders requested at verification,” id. at 27, and then later distinguishes between Hung Vuong’s decisions to (1) “discard” e-mails and (2) “not provide” pro- duction orders, id. at 28. The Court cannot discern whether (1) this is simply sloppiness on Commerce’s part, (2) the Department believes “discard” and “refusal to provide” mean the same thing, or (3) Commerce means to say that Hung Vuong retained production orders but refused to pro- vide them. In any event, the Court construes Commerce’s statements that Hung Vuong “refused to provide” produc- tion orders as meaning that Hung Vuong discarded them long before verification pursuant to its ordinary business practices. Court No. 19-00055 Page 55 In addition, Commerce noted Hung Vuong’s ques- tionnaire answers stated any interaction Hung Vuong had with its “downstream purchasers” (that is, the people who buy frozen fish from Hung Vuong’s U.S. customers) was incidental, sporadic, and promotional in nature, but at verification Commerce found evi- dence of regular substantive visits by Hung Vuong to downstream purchasers and vice versa. Id. at 26. 2. Commerce must reconsider its appli- cation of facts otherwise available with an adverse inference as to cus- tomer relationships. a. Facts otherwise available Based on its findings described above, Commerce concluded that it did “not have the necessary infor- mation to determine the full extent of the relationship between [Hung Vuong] and its customers, including any potential affiliate relationship or any princi- pal/agent relationship,” id. at 27, and could not “deter- mine whether [it] ha[d] a correct Section C database which would include the selling expenses incurred by [Hung Vuong’s] U.S. selling agent, with which to cal- culate a margin for [Hung Vuong].” Id. at 28. The “scale of the problem” rendered Hung Vuong’s re- sponses unusable in determining “an accurate and re- liable dumping margin.” Id. at 28–29. Commerce therefore applied facts otherwise avail- able because (1) necessary information was not avail- able on the record, see 19 U.S.C. § 1677e(a)(1); (2) Hung Vuong withheld information requested by Court No. 19-00055 Page 56 Commerce, id. § 1677e(a)(2)(A); (3) Hung Vuong sig- nificantly impeded Commerce’s verification, id. § 1677e(a)(2)(C); and (4) Hung Vuong provided infor- mation that could not be verified, id. § 1677e(a)(2)(D). ECF 25-5, at 28. As above, any one of these four find- ings allowed Commerce to apply “facts otherwise available” under 19 U.S.C. § 1677e(a), and therefore the Court need not address every such finding so long as at least one of them is supported by substantial ev- idence. At a minimum, substantial evidence permitted Commerce’s conclusion that Hung Vuong submitted information that could not be verified due to Hung Vuong’s failure to retain sales correspondence and pro- duction orders. Contrary to Hung Vuong’s argument, see ECF 38-1, at 26, Commerce had no obligation un- der 19 U.S.C. § 1677m(d) to provide Hung Vuong an opportunity to cure these deficiencies. As explained above, § 1677m(d) does not apply at the verification stage, but even if it did, such an opportunity to cure would have been futile because the documents no longer existed. On the other hand, Commerce could not lawfully rely upon the failure of Hung Vuong’s customers to an- swer Commerce’s questionnaire as a basis to apply facts otherwise available when Commerce gave no no- tice of the deficiency. As Hung Vuong points out in its brief, it first learned of this deficiency when Commerce issued its final decision some four months after Hung Vuong submitted its questionnaire answers. See ECF 38-1, at 26. The government has no response to this argument. On remand, therefore, Commerce must Court No. 19-00055 Page 57 reconsider its decision to apply facts otherwise availa- ble as to customer relationships and determine whether it should apply partial facts available. Commerce further cited discrepancies between in- formation in Hung Vuong’s questionnaire answers about its contact with customers and their ultimate purchasers and information discovered at verification suggesting more systematic and pervasive contact. ECF 25-5, at 26–27. For example, the questionnaire response stated Hung Vuong does not discuss “price negotiation, delivery, or negotiation of other terms or conditions of U.S. sales with the ultimate U.S. pur- chasers,” ECF 61-1, at 778–79, but e-mail correspond- ence found at verification indicated otherwise, ECF 25-5, at 26. The questionnaire response also stated Hung Vuong’s officials did not visit customers’ ultimate purchasers, aside from sometimes being in- troduced to them at trade fairs, ECF 61-1, at 778, but at verification Commerce learned Hung Vuong offi- cials directly visited the ultimate purchasers, ECF 25-5, at 26 (citing ECF 61-1, at 909). The verifi- cation report noted those visits with ultimate purchas- ers might include discussion of “possible sales, prod- ucts, [and] prices.” ECF 61-1, at 909. Hung Vuong’s briefing contends there was no dis- crepancy because the company disclosed that its offic- ers visited customers and customers visited Hung Vuong, see ECF 38-1, at 26, but the questionnaire re- sponse also said Hung Vuong did not visit the ultimate purchasers (i.e., the customers’ customers) and the in- formation found at verification contradicted that. ECF 25-5, at 26 (citing ECF 61-1, at 909). Court No. 19-00055 Page 58 In short, discrepancies in the administrative record between Hung Vuong’s questionnaire answers versus the information revealed at verification supported Commerce’s decision to apply facts otherwise available due to its inability to verify information in the record and Hung Vuong’s impeding of the investigation. Alt- hough Hung Vuong complains that it was not provided an opportunity to cure this deficiency pursuant to 19 U.S.C. § 1677m(d), as discussed above, the Court construes that provision as inapplicable to deficiencies discovered at verification. In any event, Commerce’s obligation to provide that opportunity is subject to “the time limits established for the completion of investiga- tions or reviews under this subtitle.” 19 U.S.C. § 1677m(d). In this case, verification concluded less than one month prior to Commerce’s statutory dead- line. Hung Vuong’s reply brief, however, argues that Commerce should have notified Hung Vuong of the de- ficiencies prior to verification because “it had much of [Hung Vuong’s] purportedly deficient information in its possession for several months (and in some cases more than a year).” ECF 58, at 9. Nothing in the record suggests Commerce was aware that Hung Vuong’s questionnaire answers were inaccurate until verifica- tion, and Hung Vuong has offered no argument what- soever to demonstrate how or why Commerce should have discovered those deficiencies sooner. If Commerce does not know responses are unverifi- able until it conducts verification—after all, what else is verification for?—then how is Commerce supposed to give notice of a deficiency it has not yet discovered? Court No. 19-00055 Page 59 Cf. Taian Ziyang Food Co. v. United States, 637 F. Supp. 2d 1093 , 1112 (CIT 2009) (accepting the gov- ernment’s argument that Commerce could not have in- formed a party that information was missing from the administrative record when Commerce did not yet know the information submitted was incorrect). * * * The Court largely sustains Commerce’s decision to find facts otherwise available as to Hung Vuong’s cus- tomer relationships, but on remand Commerce must reconsider whether to apply partial facts available be- cause it could not lawfully apply facts otherwise avail- able based on the failure of Hung Vuong’s customers to answer Commerce’s questionnaires. In so doing, Commerce must thoroughly explain why it reaches whatever decision it makes. b. Adverse inference The second part of the analysis, as above, involves Commerce’s decision to apply an adverse inference. Commerce found that Hung Vuong failed to cooperate to the best of its ability in responding to Commerce’s requests for information because Hung Vuong dis- carded sales correspondence and production orders, thereby “preclud[ing] Commerce from further probing [Hung Vuong’s] relationships with its customers.” ECF 25-5, at 28. Commerce concluded that Hung Vuong’s failure to cooperate resulted in Commerce be- ing unable to determine whether the administrative record provided adequate information about Hung Vuong’s selling expenses from which Commerce could Court No. 19-00055 Page 60 calculate a dumping margin for Hung Vuong. Id. at 28–29. Again, the standard is that enunciated in 19 U.S.C. § 1677e(b)(1) as further clarified by Nippon Steel— whether the respondent (here, Hung Vuong) failed to cooperate to the best of its ability—and, again, the analysis has no mens rea component. The same prob- lem with the data supporting Hung Vuong’s factors of production arises as to the records Commerce sought to review regarding Hung Vuong’s relationship with its customers. Hung Vuong discarded production or- ders and e-mail correspondence with its customers and, apparently (based on records found at verifica- tion), those customers’ ultimate purchasers. As the Nippon Steel court noted, the “best of its ability” stand- ard does not permit “inadequate record keeping.” 337 F.3d at 1382 . Hung Vuong does not dispute that it rou- tinely deletes production orders and e-mail corre- spondence—rather, Hung Vuong almost defiantly ad- mits that it does so and then disparages Commerce for requesting material Hung Vuong considers “not rele- vant.” ECF 58, at 17. Moreover, while Hung Vuong contends that dis- carding production orders and deleting e-mail is a “typical business practice,” id., Hung Vuong fails to ad- dress how such discarding of source documents Com- merce deems relevant can possibly comply with the Nippon Steel standard when Commerce’s verification outline requires such data. Therefore, the Court con- cludes that substantial evidence in the administrative record permitted Commerce to apply an adverse infer- ence as to Hung Vuong’s relationship with its Court No. 19-00055 Page 61 customers based on its failure to retain production or- ders and e-mail correspondence with its customers. Similarly, the Court concludes that substantial ev- idence supported Commerce’s determination to apply an adverse inference based on Hung Vuong’s submis- sion of inaccurate questionnaire answers regarding its relationship with downstream customers. These inac- curate responses amounted to a failure to cooperate for purposes of 19 U.S.C. § 1677e(b)(1). However, because the Court is remanding for Commerce to reconsider whether to use total or partial facts available for the reasons noted above, the Court is also required to re- mand the decision to apply an adverse inference—re- gardless of whether substantial evidence in the admin- istrative record permitted that decision—because 19 U.S.C. § 1677e(b)(1)(A) allows Commerce to apply an adverse inference only for purposes of “selecting from among the facts otherwise available.” Thus, if Commerce decides to use partial facts available on re- mand, Commerce could only apply (at most) a partial adverse inference. On remand, therefore, after recon- sidering whether to apply partial facts available on the customer relationships issue, Commerce must also re- consider whether to apply an adverse inference—in whole or in part—on the issue and must thoroughly explain why it reaches whatever decision it makes. Court No. 19-00055 Page 62 C. Control Number Reporting36 1. Commerce’s findings As discussed above, see supra Statutory and Regu- latory Background Part C.2., Commerce requires re- spondents to use a reporting mechanism referred to as “control numbers.” In this case, Commerce found that Hung Vuong failed to comply with the control number methodology: At verification, we observed that [Hung Vuong’s] invoices, rather than reflecting the actual [con- trol numbers] produced, instead represent an average of several [control numbers]. More spe- cifically, an examination of the Daily Production Report indicates that for each sale, production occurs over several days, and at the end of an order, [Hung Vuong] sums up the unsoaked and soaked fillet weights to calculate an average NETWGTU for that particular sale. The value reflected in the invoice is therefore an average of all the productions [sic] runs for that sale. ECF 25-5, at 30. The Court understands “NETWGTU” as having something to do with the amount of water weight the fish fillets gain when they are soaked in preservatives. Commerce emphasized that producers must accu- rately report this weight gain “in the [control number] in the field ‘NETWGTU,’ ” id., but found that Hung 36This discussion corresponds to Commerce’s findings in ECF 25-5, at 29–32. Court No. 19-00055 Page 63 Vuong only reported average numbers, “rather than the precise amount of water weight gained by fillets during each production run.” Id. Commerce also found that Hung Vuong had records that would have allowed it to comply with Commerce’s required methodology. Id. at 31.37 Commerce’s review of Hung Vuong’s invoices at verification indicated that “an examination of the daily production shows that rounding each day’s production to the nearest decimal results in the same NETWGTU for each line item as well as the report’s total, and therefore, for the entire sale.” Id. at 30. Commerce noted that in this circumstance, reporting one control number for the whole invoice was accurate, but Com- merce then explained that this method would not al- ways work: “However, for other sales, for example the first surprise sales trace, an examination of the daily production report shows that rounding the daily pro- duction to the nearest decimal results in five different NETWGTUs, and therefore, five [control numbers] should have been reported, but [Hung Vuong] only re- ported one [control number] for the sale.” Id. 37 The Court further notes that at oral argument, Hung Vuong’s counsel said it would have been easy for the com- pany to report data in the way Commerce required because it would have essentially just required hitting “a few but- tons” on the company’s computer system. ECF 70, at 40:3– 42:4. If indeed it would have been “easy” for the company to comply, then the Court cannot understand why Hung Vuong didn’t just follow Commerce’s instructions in the first place. Court No. 19-00055 Page 64 Hung Vuong’s response was essentially to argue that Commerce’s requirements were too difficult, but Commerce found that Hung Vuong’s records would have allowed for reporting in the required manner. Id. at 30–31. “Put another way, [Hung Vuong] has not re- ported [control number–]specific sales data as re- quired by Commerce’s repeated warnings in this case, and Commerce’s instructions.” Id. at 31. Commerce ex- plained that this matters because “allocation method- ologies that average [control number] characteristics may result in a reporting methodology that is not ac- curate because there is less variation in the calculation of [normal value], even though there are clear differ- ences in the physical characteristics of the [control numbers] and in the actual amount of inputs used.” Id. 2. The administrative record permitted Commerce to apply facts otherwise available with an adverse inference as to control number reporting. a. Facts otherwise available Based on the foregoing, Commerce invoked 19 U.S.C. § 1677e(a)(2)(B), (C), and (D) and stated that “because [Hung Vuong] did not report accurate [con- trol numbers] when it had the ability to do so, we find that [Hung Vuong] failed to provide sales and [factors- of-production] data in the form or manner requested by Commerce and significantly impeded this proceed- ing.” ECF 25-5, at 32. Commerce found that the ab- sence of properly-reported data meant that “we do not have correct Section C and Section D databases with which to calculate an accurate margin for [Hung Court No. 19-00055 Page 65 Vuong]. Commerce therefore cannot use [Hung Vuong’s] Section C and Section D questionnaire re- sponses to determine an accurate and reliable dump- ing margin.” Id. As before, any one of the three statu- tory grounds—§ 1677e(a)(2)(B), (C), or (D)—is enough to require Commerce to use facts otherwise available. i. (a)(2)(B)—failure to provide in- formation in the form and man- ner requested. The Court concludes that substantial evidence per- mitted Commerce’s decision to resort to facts other- wise available pursuant to § 1677e(a)(2)(B) because it is essentially undisputed that Hung Vuong failed to report its control numbers in the manner Commerce required and because neither of the two exceptions un- der § 1677m apply here.38 Commerce explained that Hung Vuong “reported the weighted average of the production runs for an in- voice, rather than the precise amount of water weight gained by fillets during each production run.” ECF 25-5, at 30. Hung Vuong objects to this finding and argues that the company reported data “based on actual water weight gain attributed to each specific production run using its actual production records . . . .” ECF 38-1, at 36. Hung Vuong spends roughly 38 Section 1677e(a)(2)(B) requires Commerce to use facts otherwise available when an interested party “fails to pro- vide such information [requested by Commerce] by the deadlines for submission of the information or in the form and manner requested, subject to subsections (c)(1) and (e) of [19 U.S.C. § 1677m].” 19 U.S.C. § 1677e(a)(2)(B). Court No. 19-00055 Page 66 three pages of its brief asserting, in various ways, that it used “actual water weight gain” in its reporting. See id. at 36–38. However, it appears to the Court that Hung Vuong and Commerce are talking past each other. Com- merce’s findings do not appear to the Court to contend that Hung Vuong did not use “actual water weight gain.” Rather, it appears to the Court that Commerce’s complaint is that Hung Vuong took the “actual water weight gain” for multiple fish fillets and then averaged all the data to report a single control number, instead of reporting figures for each specific control number that should have applied to the finished fish fillets: “More specifically, an examination of the Daily Pro- duction Report indicates that for each sale, production occurs over several days, and at the end of an order, [Hung Vuong] sums up the unsoaked and soaked fillet weights to calculate an average NETWGTU for that particular sale. The value reflected in the invoice is therefore an average of all the productions [sic] runs for that sale.” ECF 25-5, at 30 (emphasis added). Com- merce’s complaint is that Hung Vuong should have re- ported separate data for each production run, rather than averaging the data. Notably, Hung Vuong admits to doing this and says it “does not dispute that it used an ‘averaging’ methodology to report its net weights.” ECF 38-1, at 39. The requirement that Hung Vuong comply with the “control number” reporting methodology is not new and should not have been a surprise to Hung Vuong. As noted above, see supra note 31, the An Giang Court previously found that Commerce emphasized the Court No. 19-00055 Page 67 control number requirements at least as early as the 8th administrative review, such that by the time of the 11th review, Hung Vuong was “notified of Commerce’s preference for [control number–]specific reporting and had enough time to come into compliance.” An Giang Fisheries Import & Export Joint Stock Co. v. United States, 287 F. Supp. 3d 1361 , 1369–70 & n.13 (CIT 2018); see also id. at 1370 (“Given the advance notice afforded to respondents, the court cannot find that Commerce’s request for [control number–]specific re- porting, here, was unreasonable . . . .”). The An Giang Court also found that while Hung Vuong did not track sales and factors of production based on the product characteristics identified by the control numbers, Commerce was justified in expecting Hung Vuong to track information in the way Com- merce required, regardless of what sort of records Hung Vuong kept in the “normal course of business.” Id. at 1370–71 (cleaned up). The government notes that in the course of this 14th administrative review, Commerce again placed great emphasis on the im- portance of its required “control number” reporting methodology. ECF 49, at 26–28, 37–38. Hung Vuong, however, contends that Commerce could not permissibly invoke § 1677e(a)(2)(B) because “Commerce must still accept and consider the infor- mation if it nevertheless satisfies the statutory condi- tions of 19 U.S.C. § 1677m(e).” ECF 38-1, at 23.39 39Hung Vuong repeatedly mischaracterizes § 1677m(e) as qualifying the entirety of § 1677e(a). See, e.g., ECF 38-1, at 20 (“Importantly, the statute also instructs that the Court No. 19-00055 Page 68 Section 1677m(e) provides that Commerce “shall not decline to consider information that is submitted by an interested party and is necessary to the determination but does not meet all the applicable requirements es- tablished by” Commerce if the information satisfies all five of the following requirements: (1) “the information is submitted by the deadline established for its sub- mission”; (2) “the information can be verified”; (3) “the information is not so incomplete that it cannot serve as a reliable basis for reaching the applicable determi- nation”; (4) “the interested party has demonstrated that it acted to the best of its ability in providing the information and meeting the requirements estab- lished by [Commerce] with respect to the information”; and (5) “the information can be used without undue difficulties.” 19 U.S.C. § 1677m(e)(1)–(5). If the re- spondent fails to satisfy any of these five require- ments, Commerce need not consider the deficient sub- mission. See Papierfabrik August Koehler SE v. United States, 843 F.3d 1373 , 1382–83 (Fed. Cir. 2016) (noting that “all five requirements in that subsection” must be satisfied).40 Department ‘shall not decline to consider information that is submitted by an interested party and is necessary to the determination’ if” the conditions listed in § 1677m(e) ap- ply). Section 1677e(a), however, refers to § 1677m(e) in one location only—subparagraph (B) of paragraph (2). Section 1677m(e) does not apply to the other five circumstances listed in § 1677e(a) requiring Commerce to use “facts oth- erwise available.” 40The statute does not define the words “best of its ability” as used in § 1677m(e)(4). The Federal Circuit has explained that those words have the same meaning, and are subject Court No. 19-00055 Page 69 Remarkably, however, Hung Vuong argues that Commerce must satisfy “the five enumerated require- ments of 19 U.S.C. § 1677m(e) to enable it to decline an interested party’s information for its final determi- nation.” ECF 38-1, at 20. Hung Vuong has it exactly backwards. Commerce is not required to “meet” five require- ments in order to “decline” information. Rather, as ex- plained above, the statute says Commerce “shall not decline to consider” an interested party’s submission of information “necessary to the determination” that does not meet all of Commerce’s requirements if the information submitted satisfies five conditions that are linked together with the conjunction “and.” In other words, it is the respondent (in this case, Hung Vuong) that must “meet the five enumerated [condi- tions]” before Commerce is required to consider that respondent’s deficient submissions. See Papierfabrik, 843 F.3d at 1382–83. But Hung Vuong makes no effort to show how its information satisfied all five statutory conditions. Here, Commerce found that Hung Vuong’s submit- ted information failed to satisfy a number of § 1677m(e)’s five conditions. First, Commerce found that Hung Vuong’s failure to retain source to the same analysis, as the words “best of its ability” in 19 U.S.C. § 1677e(b)(1), the provision governing when Commerce may apply an adverse inference. NSK Ltd. v. United States, 481 F.3d 1355 , 1360 n.1 (Fed. Cir. 2007). The Court addresses “best of its ability” more fully in Statutory and Regulatory Background Part B.4.b., supra. Court No. 19-00055 Page 70 documentation (as discussed above, see Analysis Part II.A.) meant that Hung Vuong’s control number re- porting could not be verified, which is the condition set forth in § 1677m(e)(2). The Court concludes that sub- stantial evidence permitted that finding for the same reasons stated above. Second, Commerce found that Hung Vuong’s data- bases could not be deemed reliable for use in calculat- ing an accurate dumping margin for Hung Vuong be- cause of the lack of properly-reported control number sales and factor-of-production data, which is the con- dition set forth in § 1677m(e)(3). See ECF 25-5, at 32. Commerce emphasized that “allocation methodologies that average [control number] characteristics may re- sult in a reporting methodology that is not accurate because there is less variation in the calculation of [normal value], even though there are clear differences in the physical characteristics of the [control numbers] and in the actual amount of inputs used.” Id. at 31. Hung Vuong does not really dispute this point in its briefing, arguing only that it was “eminently reasona- ble” to report averaged data because “[t]here are only minor variations in the individual soaking percent- ages of the separate production runs used to fill a spe- cific invoice from day to day.” Id. at 40. Commerce’s point, however, was that the unaccounted-for varia- tions were the reason why the databases were unreli- able. For example, as to one sales trace, Commerce’s review at verification revealed that Hung Vuong should have reported five control numbers, but instead Hung Vuong only reported one. ECF 25-5, at 30. The Court understands this to mean that Hung Vuong’s Court No. 19-00055 Page 71 factors of production data therefore could not properly be tied to the finished products, and the Court con- cludes that substantial evidence permitted Commerce to find the databases unreliable. Third, Commerce expressly found that Hung Vuong failed to act to the best of its ability in meeting Com- merce’s control number reporting requirements, see ECF 25-5, at 30–31, which is the condition set forth in § 1677m(e)(4). The Court deems Commerce’s finding in this regard supported by substantial evidence in view of (1) the An Giang decision in 2018 that found that Hung Vuong could have complied with the control number requirements, see supra note 31, and (2) coun- sel’s statement at oral argument that it would have been “easy” for Hung Vuong to comply with Com- merce’s requirements, see supra note 37. Again, the Court concludes that if it would have been “easy” to comply, then noncompliance may reasonably be con- sidered substantial evidence permitting a finding that Hung Vuong did not act to the best of its ability in at- tempting to comply with instructions. As a result of the foregoing three findings, § 1677m(e) did not require Commerce to excuse Hung Vuong’s failure to comply with Commerce’s control number reporting requirements, and Commerce there- fore permissibly invoked § 1677e(a)(2)(B) to apply facts otherwise available. Commerce’s invocation of § 1677e(a)(2)(B) is also subject to § 1677m(c)(1), which permits a party to ask Court No. 19-00055 Page 72 Commerce to modify its reporting requirements.41 Nothing in the administrative record shows that Hung Vuong ever made such a request, nor does anything in the record show that Hung Vuong suggested an alter- native form for submitting the information prior to verification. At oral argument, Hung Vuong’s counsel confirmed that the company reported information in a different format from what Commerce required but did not seek approval first—instead, it used a different format, dis- closed what it did, and explained its methodology. ECF 70, at 37:14–38:2 (Court’s question) and 39:6– 40:2 (counsel’s answer). Apparently on the theory that it is better to beg for- giveness than to ask permission, Hung Vuong tried to shortcut the process. Rather than explain the diffi- culty and suggest an alternate form of production, Hung Vuong unilaterally produced records in a differ- ent format without first obtaining Commerce’s ap- proval. Hung Vuong now asks the Court to deem that al- ternative format acceptable. That decision is not the 41While 19 U.S.C. § 1677m(c)(1) requires Commerce to con- sider modifying its requirements to avoid placing an unrea- sonable burden upon a respondent, that requirement “only applies where a party notifies Commerce ‘that such party is unable to submit the information requested in the re- quired form and manner, together with a full explanation and suggested alternative forms . . . .’ ” Maverick Tube Corp. v. United States, 857 F.3d 1353 , 1360–61 (Fed. Cir. 2018) (quoting § 1677m(c)(1)). Court No. 19-00055 Page 73 Court’s to make. Hung Vuong should have made that request of Commerce before unilaterally proceeding with its own alternative methodology. Cf. Diamond Sawblades Mfrs.’ Coalition v. United States, Slip Op. 18-146, at 10, 2018 WL 5281941 , at *4 (CIT Oct. 23, 2018) (noting that respondent’s provision of substitute data “would not have been necessary had it main- tained full and complete records . . . in the first place”) (cleaned up). ii. (a)(2)(D)—information could not be verified As an alternative ground for resorting to facts oth- erwise available, Commerce cited 19 U.S.C. § 1677e(a)(2)(D), which applies when a party provides information that cannot be verified. As discussed above, the Court has already found that substantial evidence in the administrative record permitted Com- merce’s finding that Hung Vuong’s control number re- porting was not verifiable in the context of § 1677m(e)(2), and that analysis applies with equal force here. Overall, Hung Vuong’s arguments here are strik- ingly similar to those it unsuccessfully made in An Giang. Notably, Hung Vuong does not even dispute that it did not follow the control number methodology Commerce requires, instead arguing that its alterna- tive methodology “was eminently reasonable as it re- ported accurate [factors of production] with no distor- tion as accurately as possible using existing records.” ECF 38-1, at 39. But Commerce previously found, and the An Giang Court affirmed, that it was irrelevant Court No. 19-00055 Page 74 how Hung Vuong maintained its records because Hung Vuong could have tracked information in the way Commerce required.42 There is no reason for the Court to find otherwise now. Hung Vuong has had even more time to revise its practices to come into compliance—if, after all, Hung Vuong had ample notice prior to the 11th administra- tive review, then it had even more notice prior to this 14th review. The government’s brief states the issue correctly and succinctly: “. . . [A]lthough this method- ology may be ‘eminently reasonable’ according to [Hung Vuong], it was not how Commerce directed [Hung Vuong] to report its [control numbers] . . . .” ECF 49, at 37 (emphasis in original). Hung Vuong argues on reply that “Commerce’s de- cision in the eleventh review is not relevant inasmuch as [Hung Vuong] devised a completely new and more precise methodology in the current review.” ECF 58, at 19. The Court disagrees. The decision in the 11th review remains relevant because it put Hung Vuong on notice that Commerce, and this Court, would con- tinue to require Hung Vuong to adhere to Commerce’s instructions or suffer the consequences of failing to do so. Hung Vuong essentially admits it opted not to fol- low Commerce’s instructions and instead “devised” its own reporting methodology. Whether Hung Vuong be- lieves that methodology is “more precise” is immate- rial, as Hung Vuong has admitted it did not report 42This is all the more so if, as Hung Vuong’s counsel stated at oral argument, it would have been “easy” for Hung Vuong to comply. See supra note 37. Court No. 19-00055 Page 75 information in the required form. Cf. 19 U.S.C. § 1677e(a)(2)(B) (referring to a respondent’s failure to provide information “in the form and manner re- quested”). Moreover, as discussed above, the obligation was on Hung Vuong to seek permission in advance for using its own non-compliant methodology, but Hung Vuong did not do so. Hence, while Hung Vuong’s reply brief objects that the government “fails to address or ana- lyze [Hung Vuong’s] information and data showing that its methodology was reasonable and not distor- tive,” ECF 58, at 20–21, the government had no obli- gation to conduct such an analysis, nor was Commerce obligated to explain why Hung Vuong’s unilateral de- cision not to follow instructions was unreasonable. Thus, the Court need not dive into the weeds of Com- merce’s control number methodology and its overall meaning in the antidumping duty context. What mat- ters is that Commerce found that Hung Vuong did not act to the best of its ability to provide the information in the form Commerce required. That is enough to sus- tain Commerce’s decision to apply facts otherwise available. iii. (a)(2)(C)—significantly im- peding the proceeding Finally, even if the Court were to conclude that sub- stantial evidence did not permit Commerce’s decision under either 19 U.S.C. § 1677e(a)(2)(B) or (D), the Court would alternatively sustain Commerce’s invoca- tion of § 1677e(a)(2)(C) finding that Hung Vuong had “significantly impeded” this proceeding for all of the Court No. 19-00055 Page 76 same reasons cited above in view of Hung Vuong’s ad- mission that it did not follow instructions in reporting its data even though it would have been “easy” to have done so.43 Therefore, the Court concludes that substantial ev- idence in the administrative record permitted Com- merce to resort to facts otherwise available on the “control numbers” issue. b. Adverse inference After determining that it was necessary to resort to facts otherwise available, Commerce determined that it was appropriate to apply an adverse inference pur- suant to 19 U.S.C. § 1677e(b)(1) “because [Hung Vuong] has failed to cooperate to the best of its ability.” ECF 25-5, at 32. Commerce found that “[Hung Vuong] had the records available to it to report accurate [con- trol numbers] in its U.S. sales and [factors-of- 43 Hung Vuong also repeats its argument that Commerce violated 19 U.S.C. § 1677m(d) by not “promptly” notifying Hung Vuong of deficient responses and providing an oppor- tunity to cure. See ECF 38-1, at 41. The Court’s analysis of that argument in the context of the “customers” issue also applies here. See supra Analysis Part II.B.2.a. The administrative record shows that Com- merce discovered the extent of the problems only at verifi- cation, and Hung Vuong makes no attempt to demonstrate how Commerce could or should have determined at an ear- lier date that Hung Vuong’s submissions were deficient and thereby triggered the “notice-and-opportunity-to-cure” provision. Because the Court concludes that § 1677m(d) is inapplicable at the verification stage, Hung Vuong’s argu- ment fails again here. Court No. 19-00055 Page 77 production] databases.” Id. Commerce noted that be- cause the Court had previously “sustained Com- merce’s decision to require [Hung Vuong] to maintain records on a [control number–]specific basis,” Hung Vuong was an experienced respondent and “should have taken reasonable steps to keep and maintain full and complete records documenting the information that an experienced respondent should anticipate be- ing called upon to produce.” Id. Commerce concluded that Hung Vuong’s failure to cooperate resulted in the company’s databases being unusable for purposes of calculating an accurate dumping margin. Id. As is thoroughly discussed above, Hung Vuong does not dispute that it did not report control numbers in the manner required by Commerce. If, as counsel said at oral argument, it would have been “easy” for Hung Vuong to comply with Commerce’s instructions, see su- pra note 37, then there was no excuse for failure to comply. Hung Vuong has effectively admitted that it failed to cooperate to the best of its ability. Therefore, substantial evidence permitted Commerce to conclude that Hung Vuong failed to cooperate such that an ad- verse inference was appropriate. D. Factors of Production44 1. Commerce’s findings The parties dispute the accuracy of Hung Vuong’s reported factors of production in two specific ways. 44This discussion corresponds to Commerce’s findings in ECF 25-5, at 32–35. Court No. 19-00055 Page 78 First, Commerce found that Hung Vuong does not track the number of hours its employees work, but ra- ther just tracks their attendance, and that the employ- ees work as many (or as few) hours as are necessary to process all the fish fillets, without regard to the num- ber of hours in a working day. ECF 25-5, at 34. Second, Commerce found that Hung Vuong’s fac- tors of production were inaccurate due to an issue with the weight of fish byproducts. In reporting its factors of production, Hung Vuong divided the amount of whole live fish produced or fish byproducts (depending on the particular factor of production at issue) by the amount of fish fillets produced, “resulting in a ratio of whole live fish needed to produce one kg of fillet.” Id. at 33. Commerce determined there was a problem: “At verification . . . Commerce discovered that the [period- of-review] weight total of unsoaked fillets, plus the to- tal weight of the by-products[,] was many millions of kgs higher than the total weight of the whole live fish consumed by [Hung Vuong] during the [period of re- view]. Put another way, the output was much higher than the input, which is a mathematical impossibil- ity.” Id. Commerce noted that Hung Vuong was unable to explain the discrepancy. “This calls into question the accuracy of all [Hung Vuong’s factors of production], and not just its whole live fish and by-products [factors of production], because it is the weight of the fillets that is the denominator for all of [Hung Vuong’s fac- tors of production].” Id. Court No. 19-00055 Page 79 2. The administrative record did not permit Commerce to apply facts oth- erwise available with an adverse in- ference as to the fish byproducts por- tion of Hung Vuong’s factors of pro- duction data. a. Facts otherwise available In view of its findings regarding Hung Vuong’s fac- tors of production, Commerce invoked 19 U.S.C. § 1677e(a)(1) and (a)(2)(A), (C), and (D) to apply facts otherwise available as to both labor and fish byprod- ucts. The Court addresses each in turn. i. Labor costs Commerce questioned Hung Vuong’s labor factor of production, noting that Hung Vuong assumes an eight-hour workday but does not actually track the number of hours its personnel work. Commerce sought to probe the accuracy of the eight-hour day estimate but was unable to do so, and Commerce further noted that at verification the plaintiffs stated that workers are paid based on their production and work as many hours as are needed to process all the fish fillets. See ECF 25-5, at 34. In response, Hung Vuong contends Commerce should have applied a presumption of an eight-hour workday, citing a Federal Register notice: The Department [i.e., Commerce] selects from the following categories in the following hierar- chy: (1) per hour; (2) per day; (3) per week; or Court No. 19-00055 Page 80 (4) per month. Where data is not available on a per-hour basis, the Department converts that data to an hourly basis based on the premise that there are 8 working hours per day, 5.5 working days a week, and 24 working days per month. Antidumping Methodologies in Proceedings Involving Non-Market Economies: Valuing the Factor of Produc- tion: Labor, 76 Fed. Reg. 36,092 , 36,094 n.4 (Dep’t Commerce June 21, 2011) (emphasis added), cited in ECF 38-1, at 44. At oral argument, the Court asked the govern- ment’s counsel why Commerce did not apply this pre- sumption in this case. Counsel explained that verifica- tion revealed that Hung Vuong’s workers have no fixed schedule—one day, they might work 13 hours, whereas another day, they might work two hours, and it all depends on the size of the pile of fish in front of a given worker on a given day, such that the concept of a standard eight-hour workday is simply not how Hung Vuong operates. ECF 70, at 78:22–81:10. Hung Vuong’s pre-verification submissions stated the company assumes an eight-hour workday, but Commerce’s final decision notes that [a]t verification [Commerce] attempted to deter- mine whether this was an accurate estimate, but rather than stating that the regular work day at [Hung Vuong] was eight hours, we found that Hung Vuong does not track workers at all, just attendance. [Hung Vuong] stated that workers are paid based on their production, and assumes Court No. 19-00055 Page 81 workers work an eight hour day, but also admit- ted that workers work until there are no more fillets to process. ECF 25-5, at 34. The verification report also noted that “pay is based on results, not hours,” that “[c]ompany officials stated that whenever raw material deliveries are finished for the day, and there is nothing left to process, that is when the day would end,” and that workers’ timesheets included a code reflecting double shifts. ECF 61-1, at 927. Based on all the foregoing, Commerce found that “we cannot assume that an eight hour work day is a reasonable estimate of the number of hours worked.” ECF 25-5, at 34. In sum, Commerce’s point is that the administra- tive record did not allow Commerce to verify the accu- racy of Hung Vuong’s reported labor factor of produc- tion. See id. at 35 (“[W]e cannot verify that its basis for reporting labor hours is accurate.”). The Court con- cludes that substantial evidence permitted Commerce to reach that conclusion and to invoke 19 U.S.C. § 1677e(a)(2)(D) to apply facts otherwise available.45 45As discussed above in connection with the customers is- sue, see supra Analysis Part II.B.2.a., the Court concludes that 19 U.S.C. § 1677m(d) does not apply in the verification context, but even if it did apply, Commerce’s statutory deadline for completing its work would have made it im- practicable for Commerce to provide Hung Vuong the op- portunity to remedy the deficiency. Court No. 19-00055 Page 82 ii. Fish byproducts The government and the intervenors both note that at verification, Commerce discovered a discrepancy be- tween the input—whole live fish—and the output— fish fillets and byproducts—in which the output weighed several million kilograms more than the in- put.46 Commerce noted that this is “a mathematical impossibility” and stated that when the personnel con- ducting verification asked Hung Vuong to explain the discrepancy, Hung Vuong could not do so and simply said the “math was not exact” and the numbers were correct. ECF 25-5, at 33. Commerce found this discrep- ancy rendered all of Hung Vuong’s factors of produc- tion unreliable. Id. Hung Vuong argues that the discrepancy between the input and output weights occurs because the pro- duction process involves throwing fish byproducts on the floor, where they are exposed to some unknown amount of water that accumulates with the byproducts when they are cleaned up off the floor. ECF 38-1, at 42–43. Commerce’s final decision contended that Hung Vuong’s post-verification briefing “attempts to explain away this discrepancy as water weight gain by the by-products,” and Commerce questioned this argu- ment because Hung Vuong “has never claimed that it soaks its by-products to add to their weight, and there is no compelling evidence on the record to support such a conclusion.” ECF 25-5, at 33. Commerce suggested 46In the interest of comparing this figure to more familiar measurements, the Court observes that a kilogram is equivalent to 2.20462 U.S. pounds. Court No. 19-00055 Page 83 that “there may be little need for [Hung Vuong] to soak its fillets because they too might naturally absorb wa- ter like its by-products.” Id. At oral argument, the Court asked whether the ad- ministrative record prior to the post-verification brief- ing demonstrated that Hung Vuong’s explanation was not simply a post hoc rationalization as suggested by Commerce. ECF 70, at 43:24–45:25. In response, Hung Vuong submitted two excerpts from the administra- tive record. The first is an excerpt from Hung Vuong’s response to Commerce’s Supplemental Section D questionnaire, in which Hung Vuong explained as follows: It is common industry practice and well under- stood within the industry that byproducts must be collected and disposed of immediately (to pre- vent spoilage, etc.). Thus, the byproducts are col- lected as they accumulate, and this also includes some amount of water that commingles with the byproducts (as part of the overall manufacturing process). The byproducts and commingled water are collected together into buckets (this includes water that collects on the floor along with the by- products, etc.). This additional water weight is then included as part of the by-product weight that is sold to those consuming the by-products. As such, the by-product weight actually includes both the by-products and the weight of water col- lected with the by-products. ECF 69-1, at 8–9 (emphasis added). Court No. 19-00055 Page 84 The second record excerpt Hung Vuong submitted consists of a two-page excerpt from its response to Cat- fish Farmers’ pre-preliminary comments before Com- merce issued its preliminary determination. Hung Vuong reiterated the points made in its questionnaire response and then referred Commerce to the com- pany’s questionnaire answers, which Hung Vuong said compared the input and output figures without the added byproduct water weight. ECF 69-2, at 8 (citing Exhibit SDQ-41(a) of Hung Vuong’s supplemental Sec- tion D response). Commerce explained that at verification, the on- site personnel could not explain the discrepancy and simply said the “math was not exact.” ECF 25-5, at 33. The Court recognizes the validity of Commerce’s con- cern that if the “math was not exact,” it calls into ques- tion the accuracy of Hung Vuong’s reported data. Nev- ertheless, and critically for present purposes, Com- merce’s final decision nowhere addressed Hung Vuong’s explanation of why the byproducts gained wa- ter weight nor the data Hung Vuong submitted in its questionnaire answers that the company character- izes as comparing input and output figures without the added byproduct water weight. In determining whether the administrative record contains substantial evidence permitting Commerce’s final decision, the Court must consider evidence that supports as well as evidence that fairly detracts from the substantiality of the evidence. Nippon Steel, 337 F.3d at 1379 . Because Commerce’s final decision did not address Hung Vuong’s explanation for the byprod- ucts’ weight gain, the Court concludes that Court No. 19-00055 Page 85 Commerce’s finding on that issue is not supported by substantial evidence and is therefore not permissible. See, e.g., SeAH Steel VINA Corp. v. United States, 950 F.3d 833 , 846 (Fed. Cir. 2020) (discussing procedural history of case in which CIT remanded twice, first for further explanation of Commerce’s findings and again when Commerce pointed to certain record evidence but did not address the respondent’s counterarguments); see also SeAH Steel VINA Corp. v. United States, 269 F. Supp. 3d 1335 , 1365 (CIT 2017) (remanding to Com- merce for second time, noting that Commerce failed to address respondent’s counterarguments beyond a sin- gle sentence saying there was no evidence on the rec- ord supporting respondent’s position, and finding that “[u]ntil Commerce explains why, despite SSV’s chal- lenges, its decision is correct, the court cannot find that Commerce’s decision was consistent with the law and supported by substantial evidence”). Moreover, because Commerce cited this issue as the basis for discrediting all of Hung Vuong’s factors of production, ECF 25-5, at 35 (finding all Hung Vuong’s factors of production unreliable “because the founda- tion of its reporting is based on a mathematical impos- sibility”), the Court cannot sustain Commerce’s final decision despite finding the remainder of Commerce’s analysis to be supported by substantial evidence and therefore permissible. At oral argument, counsel for Catfish Farmers explained that if a respondent (here, Hung Vuong) cannot support its reported factors of production, Commerce cannot confirm that the factors are not understated. This matters because under- stated factors of production would result in a product having a lower normal value and, by extension, lower Court No. 19-00055 Page 86 dumping margins. Catfish Farmers argued that—as Commerce found following verification—the issues with Hung Vuong’s factors of production warranted re- jecting all of Hung Vuong’s data because the factors of production are at the heart of Commerce’s dumping determination. ECF 70, at 85:5–86:18. Even accepting all these arguments, however, the problem is that Commerce rejected all the factors of production based on its finding that Hung Vuong could not explain the byproducts’ weight gain, but there is nothing in the administrative record showing that Commerce considered (much less addressed) Hung Vuong’s previously-offered explanation for that issue. Because Commerce viewed this issue as essential to its analysis, the Court cannot sustain Commerce’s deci- sion to apply total facts otherwise available as to Hung Vuong’s factors of production. Commerce failed to address Hung Vuong’s submis- sion explaining the reason for the water weight gain, which might have demonstrated that the figures were not “mathematically impossible.” If, in turn, the ad- ministrative record contradicted the “mathematically impossible” conclusion, that would call into question Commerce’s assumption that the “foundation” of Hung Vuong’s factors of production reporting was invalid. Commerce must therefore thoroughly address that is- sue and reconsider its final decision in view of that is- sue, including, but not limited to, whether to disallow the byproduct offset as Hung Vuong suggests, see ECF 58, at 22, and whether to apply partial facts available instead of total facts available as to the factors of Court No. 19-00055 Page 87 production issue. The Court will therefore remand this matter to Commerce for that purpose. b. Adverse facts available Invoking 19 U.S.C. § 1677 (b) to apply an adverse inference as to the factors of production issue, Com- merce found that Hung Vuong had failed to cooperate to the best of its ability “because the foundation of its reporting is based on a mathematical impossibility.” ECF 25-5, at 35. Thus, on remand, in addition to re- considering Hung Vuong’s original submission on the byproduct issue, Commerce is to consider the extent to which its conclusion as to that submission affects its decision on the adverse inference as to the factors of production, including whether a partial or total ad- verse inference is justified, and is to thoroughly ex- plain the reason for its decision on that issue in the remand determination. E. The Court Is Required to Remand Com- merce’s Decision to Apply “Total AFA.”47 After addressing the four specific issues discussed above, Commerce applied what it called “Total AFA.” As discussed above, see supra Statutory and Regula- tory Background Part B.4., “AFA” is jargon for Com- merce using “an inference that is adverse to the inter- ests of that party in selecting from among the facts otherwise available.” 19 U.S.C. § 1677e(b)(1)(A). The Court’s analysis up to this point has discussed 47This discussion corresponds to Commerce’s findings in ECF 25-5, at 35–36. Court No. 19-00055 Page 88 whether the administrative record permitted Com- merce’s resort to “facts otherwise available” and “ad- verse inferences” as to four particular issues. The anal- ysis of Commerce’s “Total AFA” discussion, in con- trast, focuses on the case as a whole—whether sub- stantial evidence in the administrative record permit- ted Commerce to apply “Total AFA.” Commerce cited the “many deficiencies listed above” as the basis for applying some level of facts oth- erwise available with an adverse inference. ECF 25-5, at 35. Commerce stated that its findings demonstrated that Hung Vuong “failed to cooperate to the best of its ability by not providing complete and accurate re- sponses to Commerce’s requests for information in the form and manner request [sic], significantly impeded the proceeding, and provided information which could not be verified. In addition, certain necessary infor- mation is missing from the record.” Id. Commerce therefore tied the deficiencies it identified in Hung Vuong’s questionnaire answers—which were the basis for using “facts otherwise available”—to Hung Vuong’s failure to cooperate “by not acting to the best of its abil- ity to comply with a request for information from” Commerce, which is the statutory prerequisite for ap- plication of an adverse inference. 19 U.S.C. § 1677e(b)(1). Commerce then considered whether it should apply “partial” or “total” facts otherwise available with an adverse inference. Commerce found that Hung Vuong’s failure to cooperate rendered the company’s questionnaire answers completely unreliable and un- usable such that “we cannot accurately calculate a Court No. 19-00055 Page 89 dumping margin for [Hung Vuong] pursuant to section 773(a) of the Act [i.e., 19 U.S.C. § 1677b(a)].” ECF 25-5, at 35. Commerce further found that “[t]he use of par- tial AFA is not appropriate because the missing infor- mation, i.e., data needed to calculate [Hung Vuong’s] dumping margin, is core to our analysis and it would be unduly difficult to apply partial AFA by selecting from the facts available to remedy each of the deficien- cies that impact each sale.” Id. at 36. “Depending on the severity of a party’s failure to respond to a request for information and failure to co- operate to the best of its ability, Commerce may select either partial or total AFA.” Fresh Garlic Producers Ass’n v. United States, 121 F. Supp. 3d 1313 , 1324 (CIT 2015). The Federal Circuit has suggested that “par- tial” application may be appropriate where deficien- cies are limited to particular portions of the adminis- trative record such that Commerce can use other por- tions of the respondent’s submissions. See Mukand, Ltd. v. United States, 767 F.3d 1300 , 1307–08 (Fed. Cir. 2014). This rule exists because Commerce is to use “facts otherwise available” to fill in actual gaps in the administrative record, Bebitz Flanges Works Private Ltd. v. United States, 433 F. Supp. 3d 1309 , 1317 (CIT 2020), and the statute allows Commerce to employ an adverse inference only in the process of “selecting from among the facts otherwise available,” 19 U.S.C. § 1677e(b)(1)(A). But the “use of partial facts available is not appro- priate when the missing information is core to the an- tidumping analysis and leaves little room for the sub- stitution of partial facts without undue difficulty.” Court No. 19-00055 Page 90 Mukand, 767 F.3d at 1308. Instead, a “total” applica- tion “is used by Commerce in situations where none of the reported data is reliable or usable. . . . Commerce can ignore all data submitted where the bulk of it is determined to be flawed and unreliable.” Zhejiang Du- nan Hetian Metal Co. v. United States, 652 F.3d 1333 , 1348 (Fed. Cir. 2011). Here, Commerce did make a finding that the prob- lems it had with the administrative record were “core” to the Department’s analysis and that it would be “un- duly difficult” to do anything other than to apply total facts otherwise available with an adverse inference. However, for the reasons discussed above, it is unclear from the existing record whether there was substan- tial evidence permitting Commerce to resort to facts otherwise available—and, by extension, an adverse in- ference—on (1) the customer relationship issue due to its failure to give Hung Vuong notice of the customers’ failure to answer Commerce’s questionnaires and (2) the factors of production issue due to Commerce’s failure to address Hung Vuong’s original submission on the water weight gain of the fish byproducts. The Court is therefore required to vacate Com- merce’s application of “total AFA” in view of those two issues. On remand, Commerce must reconsider whether (1) its failure to give Hung Vuong notice of its customers’ failure to answer Commerce’s question- naires and (2) its reassessment of the byproducts issue would allow for application of “partial AFA” and must thoroughly explain its rationale for whatever conclu- sion it reaches. Court No. 19-00055 Page 91 F. The Rate Commerce Applied Must Be Reconsidered on Remand.48 After finding it appropriate to apply facts otherwise available with an adverse inference, Commerce looked to the prior administrative reviews of the antidumping order at issue in this case and selected the highest rate applied to any respondent, $3.87 per kilogram. ECF 25-5, at 37. Hung Vuong objects to the assigned rate as “arbitrarily punitive,” ECF 38-1, at 47, and con- tends that Commerce needed to explain why it did not choose some other lower rate. Hung Vuong does ap- pear to concede, however, that the purpose of applying an adverse inference is to ensure that a party does not benefit from its own lack of cooperation. Id. at 48. The Court need not address either Hung Vuong’s objections to the rate or the government’s arguments in support of it. Because the Court must remand this matter to Commerce for further consideration of the customer relationships issue as discussed supra in Analysis Part II.B.2.a.–b. and Hung Vuong’s byprod- uct data as discussed supra in Analysis Part II.D.2.a.ii., the Court cannot sustain Commerce’s ap- plication of the $3.87/kg rate in this case. On this rec- ord, the Court is unable to determine whether Com- merce permissibly applied a total adverse inference. Accordingly, Commerce is to reconsider the rate on re- mand in conjunction with its reconsideration of the 48This discussion corresponds to Commerce’s findings in ECF 25-5, at 36–37. Court No. 19-00055 Page 92 customer questionnaire and byproduct issues and the total adverse inference. *** Order For all the foregoing reasons, the Court remands this matter to Commerce for further proceedings con- sistent with this opinion. Accordingly, upon consider- ation of all papers and proceedings in this action, it is hereby ORDERED that Plaintiff’s motion for judgment on the agency record (ECF 38) is GRANTED IN PART AND DENIED IN PART, and it is further ORDERED that this case is REMANDED to the Department of Commerce with instructions that the Department reconsider (1) its findings on Hung Vuong’s relationship with its customers in view of Commerce’s failure to comply with its obligations un- der 19 U.S.C. § 1677m(d) to notify Hung Vuong of de- ficiencies in the customers’ questionnaire answers and to provide an opportunity to remedy them, (2) its find- ings on the Hung Vuong Group’s byproduct data and the effect those findings have on Commerce’s overall decision, and (3) the antidumping rate applied to the Hung Vuong Group in view of the reconsideration of the two foregoing issues, and it is further ORDERED that this case will proceed with the fol- lowing schedule: Court No. 19-00055 Page 93 1. Commerce must file its remand determination on or before 120 days after the date of entry of this opinion and order; 2. Commerce must file the administrative record on or before 14 days after the date on which it files the remand determination; 3. The parties’ post-remand comments must be set in either 13- or 14-point type, except that 12-point type may be used for footnotes; 4. Plaintiffs’ comments in opposition to the remand determination must be filed on or before 30 days after Commerce files the administrative record; 5. Defendant’s comments in support of the remand determination must be filed on or before 30 days after Plaintiffs file their comments in opposition; 6. Intervenors’ comments in support of the remand determination must be filed on or before 15 days after Defendant files its comments in support and may con- tain no more than half the word count applicable to Defendant’s comments pursuant to the Court’s Stand- ard Chambers Procedures; 7. The joint appendix must be filed on or before 14 days after the date on which the last comments in sup- port of the determination are filed, and the Court will issue an order giving the parties further direction on how to format the joint appendix and how to cite the administrative record in their post-remand comments; and Court No. 19-00055 Page 94 8. Motions for further oral argument, if any, must be filed on or before the due date for the joint appendix. Dated: December 3, 2020 /s/ M. Miller Baker New York, New York Judge

2020-12-03 22:01:39.714921+00

https://ecf.cofc.uscourts.gov/cgi-bin/show_public_doc?2020cv1010-8-0

In the United States Court of Federal Claims No. 20-1010C (Filed: December 3, 2020) (NOT TO BE PUBLISHED) ) WILLIAM T. GRANT, ) ) Plaintiff, ) ) v. ) ) UNITED STATES, ) ) Defendant. ) ) ) William T. Grant, pro se, Washington, D.C. Anthony F. Schiavetti, Senior Trial Counsel, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, D.C., for defendant. With him on the brief were Jeffrey Bossert Clark, Acting Assistant Attorney General, Robert E. Kirschman, Jr., Director, and Eric P. Bruskin, Assistant Director, United States Department of Justice, Washington, D.C. OPINION AND ORDER LETTOW, Senior Judge. Plaintiff William T. Grant has brought suit against the United States, seeking injunctive relief, back pay, and other damages due to an alleged violation of Title VII of the Civil Rights Act. See Compl. at 3-4, ECF No. 1. Mr. Grant alleges that the United States Department of the Navy (“the Navy”) unlawfully terminated him based on his race and/or color. See Compl. at 3. Pending before the court is the United States’ (“the government”) motion to dismiss. See Def.’s Mot. to Dismiss (“Def.’s Mot.”), ECF No. 7. Mr. Grant did not file a response to the motion. Because Mr. Grant has failed to establish jurisdiction by a preponderance of the evidence, the government’s motion to dismiss is GRANTED and Mr. Grant’s claim is DISMISSED.  BACKGROUND1 On April 4, 2016, Mr. Grant accepted a position as a GS 12-1 emergency management service specialist with the Navy. See Compl. at 3. Mr. Grant subsequently received a notice of termination, citing his failure to obtain a security clearance. See Compl. According to the complaint, a large backlog of security clearances had accumulated at the Department of Defense, and Mr. Grant’s security clearance was still being processed at the time of his termination. See Compl. Contrary to the Navy’s stated reason for his termination, Mr. Grant alleges that he was terminated “due to [his] race [and] color.” Compl. at 2. Mr. Grant filed a complaint with the United States Equal Employment Opportunity Commission and requested a mediation, but the agency cancelled the mediation in November 2019. Compl. at 2. Mr. Grant filed suit in this court on August 7, 2020, alleging that his termination violated Title VII of the Civil Rights Act of 1964. See Compl. at 1. Along with reinstatement to his position as an emergency management service specialist,2 Mr. Grant seeks equitable relief in the form of an amendment to his SF-50, the removal of “all negative documents” from his “official personnel folder and all drop files maintained by all officials,” and “an outstanding letter of recommendation” from the Pentagon. Compl. at 4. Mr. Grant also requests monetary relief “for emotional pain [and] suffering,” back pay, attorneys’ fees and costs, and reimbursements for insurance coverage, sick leave, annual leave, and “thrift savings.” Compl. at 4. STANDARDS FOR DECISION The Tucker Act provides this court with jurisdiction over “any claim against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort.” 28 U.S.C. § 1491 (a)(1). To invoke this court’s Tucker Act jurisdiction, “a plaintiff must identify a separate source of substantive law that creates the right to money damages.” Fisher v. United States, 402 F.3d 1167 , 1172 (Fed. Cir. 2005) (en banc in relevant part) (citing United States v. Mitchell, 463 U.S. 206 , 216 (1983); United States v. Testan, 424 U.S. 392 , 398 (1976)). If a plaintiff fails to raise a claim under a money-mandating provision, this court “should . . . [dismiss] for lack of subject matter jurisdiction.” Jan’s Helicopter Serv., Inc. v. Federal Aviation Admin., 525 F.3d 1299 , 1308 (Fed. Cir. 2008) (quoting Greenlee Cnty. v. United States, 487 F.3d 871 , 876 (Fed. Cir. 2007)). As plaintiff, Mr. Grant must establish jurisdiction by a preponderance of the evidence. See Trusted Integration, Inc. v. United States, 659 F.3d 1159 , 1163 (Fed. Cir. 2011) (citing 1 The recitations that follow do not constitute findings of fact, but rather are recitals attendant to the pending motions and reflect matters drawn from the complaint, the parties’ briefs, and records and documents appended to the complaint and briefs. 2 Mr. Grant alleges that he accepted a position “as a GS 12-1 . . . emergency management service specialist,” Compl. at 3, but he requests “reinstatement . . . as a GS 12-2,” Compl. at 4. 2 Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746 , 748 (Fed. Cir. 1988)).3 When ruling on a motion to dismiss for lack of jurisdiction, the court must “accept as true all undisputed facts asserted in the plaintiff’s complaint and draw all reasonable inferences in favor of the plaintiff.” Id. (citing Henke v. United States, 60 F.3d 795 , 797 (Fed. Cir. 1995)). “If a court lacks jurisdiction to decide the merits of a case, dismissal is required as a matter of law.” Gray v. United States, 69 Fed. Cl. 95 , 98 (2005) (citing Ex parte McCardle, 74 U.S. (7 Wall.) 506, 514 (1868); Thoen v. United States, 765 F.2d 1110 , 1116 (Fed. Cir. 1985)); see also RCFC 12(h)(3) (“If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.”). ANALYSIS In its motion to dismiss, the government asserts that the court’s jurisdiction “does not extend to the claims of racial discrimination that form the gravamen of Mr. Grant’s complaint.” Def.’s Mot. at 3. While “Title VII of the Civil Rights Act of 1964 . . . prohibits the [g]overnment from engaging in discrimination,” it is well established that “such discrimination claims are within the exclusive jurisdiction of the United States district courts, and this [c]ourt lacks jurisdiction to entertain such actions . . . .” Hwang v. United States, 94 Fed. Cl. 259 , 269 (2010) (citing Dixon v. United States, 17 Cl. Ct. 73 , 77 (1989)), aff’d, 409 Fed. Appx. 348 (Fed. Cir. 2011); see also Cottrell v. United States, 42 Fed. Cl. 144 , 149 (1998) (“As courts have repeatedly held, there is no Tucker Act jurisdiction in the Court of Federal Claims to entertain claims involving race, sex, and age discrimination or other claims involving civil rights violations.”) (citations omitted). In short, Mr. Grant’s claim of a Title VII violation is not cognizable in this court. Additionally, this court lacks jurisdiction to award Mr. Grant the equitable relief he seeks. While the Tucker Act authorizes the award of equitable relief that is ancillary to an award for money damages, such relief “must be ‘an incident of and collateral to’ a money judgment.” James v. Caldera, 159 F.3d 573 , 580 (Fed. Cir. 1998) (quoting 28 U.S.C. § 1491 (a)(2)). Here, Mr. Grant seeks reinstatement to his position as an emergency management service specialist, along with other forms of equitable relief. While Mr. Grant also seeks damages from the Navy for, inter alia, back pay, his claims for equitable relief are “not . . . tied and subordinate to an award of . . . back pay” or to any of his other claims for monetary relief. Id. at 581 (internal quotation marks omitted). Therefore, the court cannot award the relief Mr. Grant requests. 3 A court may “grant the pro se litigant leeway on procedural matters, such as pleading requirements.” McZeal v. Sprint Nextel Corp., 501 F.3d 1354 , 1356 (Fed. Cir. 2007) (citing Hughes v. Rowe, 449 U.S. 5 , 15 (1980) (“An unrepresented litigant should not be punished for his failure to recognize subtle factual or legal deficiencies in his claims.”)). This leniency, however, cannot extend to lessening jurisdictional requirements. See Kelley v. Secretary, United States Dep’t of Labor, 812 F.2d 1378 , 1380 (Fed. Cir. 1987) (“[A] court may not . . . take a liberal view of . . . jurisdictional requirement[s] and set a different rule for pro se litigants only.”). 3  CONCLUSION For the reasons stated, the government’s motion to dismiss is GRANTED. Mr. Grant’s complaint shall be DISMISSED for lack of subject-matter jurisdiction. The clerk shall enter judgment accordingly. No costs. It is so ORDERED. s/ Charles F. Lettow Charles F. Lettow Senior Judge 4

2020-12-03 22:01:43.938864+00

https://ecf.cofc.uscourts.gov/cgi-bin/show_public_doc?2019vv0282-27-0

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 19-282V UNPUBLISHED Chief Special Master Corcoran CLARA FITZGERALD, Filed: November 3, 2020 Petitioner, v. Special Processing Unit (SPU); SECRETARY OF HEALTH AND Findings of Fact; Intramuscular HUMAN SERVICES, Route of Administration; Influenza (Flu) Vaccine; Shoulder Injury Respondent. Related to Vaccine Administration (SIRVA) Leah VaSahnja Durant, Law Offices of Leah V. Durant, PLLC, Washington, DC, for petitioner. Mollie Danielle Gorney, U.S. Department of Justice, Washington, DC, for respondent. FINDING OF FACT1 On February 22, 2019, Clara Fitzgerald filed a petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.2 (the “Vaccine Act”). Petitioner alleges that she suffered a left shoulder injury related to vaccine administration (“SIRVA”) as a result of an influenza (“flu”) vaccine she received on October 31, 2017. Petition at 1. The case was assigned to the Special Processing Unit of the Office of Special Masters. 1 Because this unpublished ruling contains a reasoned explanation for the action in this case, I am required to post it on the United States Court of Federal Claims' website in accordance with the E-Government Act of 2002. 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of Electronic Government Services). This means it will be available to anyone with access to the internet. In accordance with Vaccine Rule 18(b), petitioner has 14 days to identify and move to redact medical or other information, the disclosure of which would constitute an unwarranted invasion of privacy. If, upon review, I agree that the identified material fits within this definition, I will redact such material from public access. 2National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755 . Hereinafter, for ease of citation, all section references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa (2012).  For the reasons discussed below, I find that Petitioner’s October 31, 2017 flu vaccine was administered intramuscularly into Petitioner’s left deltoid. I. Relevant Procedural History On March 7, 2019, Petitioner filed medical records, an affidavit, and a Statement of Completion. ECF Nos. 7-8. Following an initial status conference, Respondent was directed to file a status report indicating how he intended to proceed in this case. ECF No. 10. On April 23, 2020, Respondent did so, stating that he had completed a medical review and was opposed to settlement discussions. ECF No. 20. Respondent thereafter filed a Rule 4(c) Report on June 8, 2020. ECF No. 21. In the Report, Respondent noted that, to establish a presumptive SIRVA injury, Petitioner must specifically show that the vaccine was administered intramuscularly—i.e., injected into a muscle. Res. Report at 5. Petitioner’s vaccination record indicated that the vaccine “was administered into [P]etitioner’s left deltoid,” but did not specify the route of administration or otherwise provide information signifying whether the vaccine was given intramuscularly. Id. Respondent therefore maintained that Petitioner could not establish a presumptive SIRVA under the Vaccine Injury Table. Id. On July 17, 2020, I issued a Scheduling Order noting that I had reviewed Respondent’s Rule 4(c) Report as well as the evidence filed to date. ECF No. 22. I permitted the parties to file briefing as well as any other relevant evidence pertaining to the route of administration of Petitioner’s October 31, 2017 flu vaccination. Id. The parties were informed that I would thereafter issue a factual ruling regarding this issue. Id. Respondent filed his brief on August 31, 2020, reiterating that Petitioner’s vaccination record does not specify the route of administration or manufacturer. Res. Brief at 2 (ECF No. 23). Respondent deemed this lack of specificity significant because Sanofi Pasteur (a vaccine manufacturer) produced a flu vaccine that could be administered intradermally during the 2017-2018 flu season—the season Petitioner received the vaccination at issue. Id. at 2-3. Respondent further noted that Vaccine Program cases have made fact findings regarding the route of vaccine administration in some recent cases. See, e.g., Dorris v. Sec’y of Health & Human Servs., No. 18-1265V, 2019 WL 7212165 (Fed. Cl. Spec. Mstr. Nov. 13, 2019); Porzio v. Sec’y of Health & Human Servs., No. 17-1996V, 2019 WL 5290837 (Fed. Cl. Spec. Mstr. July 12, 2019). Res. Brief at 3. In both cases, intramuscular administration was found to have occurred, partially because the vaccination records recorded the vaccines as being administered into the deltoid, a muscle. Id. Respondent argued, however, that such evidence is not dispositive regarding the route of 2 administration, since intradermal vaccines are also administered in the “region of the deltoid.”3 Id. Petitioner filed her own brief on August 31, 2020.4 ECF No. 25. In it, she cited the Centers for Disease Control and Prevention website, which states that most flu vaccines are administered in an arm muscle with a needle, with the deltoid muscle specifically recommended for routine adult intramuscular vaccination. Pet. Brief at 2. Petitioner asserted that “the Vaccine Administration Record in this case makes clear that [P]etitioner received the vaccination in her deltoid muscle.” Id. Petitioner also cited to the Food and Drug Administration (“FDA”) website, observing that none of the FDA-approved flu vaccines during the 2017-2018 season were meant for intradermal use. Id. at 3-4 . The disputed issue of the route of administration of Petitioner’s October 31, 2017 flu vaccine is now ripe for resolution. II. Medical Records I have reviewed all the records filed to date. This ruling, however, is limited to determining the route of administration of Petitioner’s October 31, 2017 flu vaccination. Accordingly, I will only summarize or discuss evidence that directly pertains to this issue. On October 31, 2017, Petitioner received a flu vaccine. Ex. 1 at 1. The vaccination consent form lists Petitioner’s name and date of birth, and indicates she was administered a quadrivalent form of the vaccine. Id. The form is signed and dated by Petitioner. Id. At the bottom of the form there is a section marked “To be completed by person administering vaccine.” Id. This section lists the date, lot number, and expiration date of the vaccine, along with the name of the person who administered the vaccine. Id. This section also contains the following text: “Site of Injection (Circle One): R Deltoid / L Deltoid.” Id. “L Deltoid” (most likely meaning left deltoid) is circled. Id. Three weeks post-vaccination, on November 21, 2017, Petitioner presented to Sonita Singh, M.D., at George Washington University Medical Faculty Associates. Ex. 2 at 1. Petitioner reported that she had received a flu vaccine on October 31st, and then started experiencing left arm pain two hours later that persisted. Id. Petitioner stated that she thought the “nurse put the flu shot too high on her arm resulting in SIRVA.” Id. Approximately a week later, on November 27, 2017, Petitioner underwent an initial physical therapy evaluation. Ex. 3 at 14. Petitioner reported that she had received a flu 3 Respondent cited a vaccine administration instruction form from the “Immunization Action Coalition” indicating that intradermal flu vaccines are administered in the “region of the deltoid.” Res. Brief at 3 n.2. 4 Petitioner has also filed an affidavit describing her previous efforts to obtain a more detailed vaccination record. Ex. 9 (ECF No. 24). 3 vaccination that was “incorrectly placed and injected in the [left] shoulder bursa,” which caused shoulder pain and associated symptoms. Id. III. Analysis A petitioner must prove, by a preponderance of the evidence, the factual circumstances surrounding her claim. Section 13(a)(1)(A). Under that standard, the existence of a fact must be shown to be “more probable than its nonexistence.” In re Winship, 397 U.S. 358 , 371 (1970) (Harlan, J., concurring). To establish a presumptive Table SIRVA injury, Petitioner must show that the vaccine she received was administered intramuscularly—i.e., injected into a muscle. See 42 CFR § 100.3 (c)(10) (“SIRVA manifests as shoulder pain and limited range of motion occurring after the administration of a vaccine intended for intramuscular administration in the upper arm. These symptoms are thought to occur as a result of unintended injection of vaccine antigen or trauma from the needle into and around the underlying bursa of the shoulder resulting in an inflammatory reaction” (emphasis added)). As noted by Respondent, the recent Porzio and Dorris rulings involved factual disputes regarding the route of vaccine administration. In Porzio, Respondent argued (as here) that there was insufficient evidence that the petitioner’s flu vaccine was administered intramuscularly, but the special master found otherwise. Porzio, 2019 WL 5290837 , at *1. The vaccine administration record in that case stated that the vaccine had been injected into the petitioner’s left deltoid. Id. at *3 . In addition, the prescribing information for the vaccine indicated that it was for intramuscular use (and thus should not be administered intravenously, intradermally, or subcutaneously). Id. In addition, the petitioner (a nurse practitioner) averred that she was sitting when the vaccine was administered despite asking to stand, which makes it easier to correctly place an intramuscular injection. Id. All such evidence was deemed preponderantly supportive of Petitioner’s side of the dispute. The outcome was the same in Dorris (a case I decided). There, the petitioner’s vaccination record listed the site of injection as “left deltoid” but did not specifically indicate whether the vaccine was administered intramuscularly. Dorris, 2019 WL 7212165 , at *1. At a post-vaccination medical appointment, however, the petitioner stated that the vaccine was improperly administered in the upper shoulder area instead of the lateral, or side, deltoid. Id. at *2 . The petitioner also averred that the vaccine was administered unusually high on the shoulder. Id. After Respondent requested a ruling regarding the route of administration, I found that there was preponderant evidence of intramuscular administration based on the information above. Id. at *1, 3 . The facts of this case are analogous to those in Porzio and Dorris. As already noted, Petitioner’s vaccine administration record indicates that Petitioner’s vaccine was administered into her left deltoid, a muscle. Ex. 1 at 1; see, e.g., Dorland’s Illustrated 4 Medical Dictionary (32nd ed. 2012) at 484 (defining deltoid as “triangular in outline, as the deltoid muscle”). In addition, and like Porzio and Dorris, Petitioner later reported to her medical providers that the vaccine had been administered high on her left arm, and she believed the improper administration had resulted in injection of the vaccine into the bursa. Taken together, these records support that Petitioner’s October 31, 2017 flu vaccine was administered intramuscularly into her left deltoid. Respondent has cited evidence suggesting that an intradermally-administered version of the flu vaccine was in use during the period Petitioner received the vaccination at issue. Respondent also notes that intradermal vaccines are administered in the “region of the deltoid,” thus allowing for the possibility that (despite Petitioner’s allegations) a version of the vaccine not literally covered by the Table SIRVA claim requirements was at issue in this case. Res. Brief at 2-3. These arguments are not, however, ultimately persuasive. Apart from the evidence already discussed, I have observed through my work on other cases that the majority of flu vaccines are administered intramuscularly into the deltoid muscle. 5 It is also the case that vaccination records produced in the Program frequently fail to identify the specific form of administration deemed in this case dispositive by Respondent (meaning that huge numbers of otherwise-meritorious Table SIRVA claims would require dismissal simply because the record did not specify this issue). Under a preponderant standard, these deficiencies are not a bar to entitlement where—like here—the overall evidence preponderates in favor of the claim.6 IV. Conclusion In light of the evidence supporting the conclusion that the flu vaccine Petitioner received was administered intramuscularly, and lacking persuasive evidence supporting any other route of administration, I find that it is more likely than not that Petitioner’s October 31, 2017 flu vaccine was administered intramuscularly into her left deltoid. Respondent shall file a status report, by no later than Friday, December 04, 2020, indicating whether he is interested in exploring an informal resolution of Petitioner’s claim. 5 Respondent has suggested that an intradermally-administered version of the flu vaccine was in use during the period Petitioner received the vaccination at issue. However, the mere possibility of an intradermally- administered version does not defeat Petitioner’s preponderant showing in light of the other evidence supporting her claim. 6 I have relied upon the available record evidence in addition to my accumulated experience adjudicating Vaccine Act claims. See Hodges v. Sec’y of Health & Human Servs., 9 F.3d 958 , 961 (Fed. Cir. 1993) (“Congress assigned to a group of specialists, the Special Masters within the Court of Federal Claims, the unenviable job of sorting through these painful cases and, based upon their accumulated expertise in the field, judging the merits of the individual claims”). 5 IT IS SO ORDERED. s/ Brian H. Corcoran Brian H. Corcoran Chief Special Master 6

2021-03-19 05:09:09.043508+00

https://www.nebraska.gov/apps-courts-epub/public/viewOpinion?docId=N00007598PUB

Nebraska Supreme Court Online Library www.nebraska.gov/apps-courts-epub/ 03/19/2021 12:09 AM CDT - 312 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports STATE v. THOMAS Cite as 308 Neb. 312 State of Nebraska, appellee, v. Arius L. Thomas, appellant. ___ N.W.2d ___ Filed February 5, 2021. No. S-19-1163. 1. Constitutional Law: Search and Seizure: Motions to Suppress: Appeal and Error. In reviewing a trial court’s ruling on a motion to suppress based on a claimed violation of the Fourth Amendment, an appellate court applies a two-part standard of review. Regarding histori- cal facts, an appellate court reviews the trial court’s findings for clear error, but whether those facts trigger or violate Fourth Amendment protections is a question of law that an appellate court reviews indepen- dently of the trial court’s determination. 2. Motions to Suppress: Trial: Pretrial Procedure: Appeal and Error. When a motion to suppress is denied pretrial and again during trial on renewed objection, an appellate court considers all the evidence, both from trial and from the hearings on the motion to suppress. 3. Constitutional Law: Search and Seizure. Both the Fourth Amendment to the U.S. Constitution and article 1, § 7, of the Nebraska Constitution guarantee against unreasonable searches and seizures. 4. Criminal Law: Search and Seizure: Appeal and Error. In determin- ing whether a seizure was reasonable, an appellate court balances the degree of the intrusion against the degree of objective certainty that the person stopped is or has been engaged in criminal activity. 5. Police Officers and Sheriffs: Search and Seizure. There are three distinct tiers of police-citizen encounters, each triggering a different analysis of the balance that should be struck between the government’s interests and the invasion of privacy interests which a search or sei- zure entails. 6. Constitutional Law: Police Officers and Sheriffs: Search and Seizure. The first tier of police-citizen encounters involves no restraint of the liberty of the citizen involved, but, rather, the voluntary cooperation  - 313 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports STATE v. THOMAS Cite as 308 Neb. 312 of the citizen is elicited through noncoercive questioning. This type of contact is outside the realm of Fourth Amendment protection. 7. Police Officers and Sheriffs: Investigative Stops: Weapons. The sec- ond tier of police-citizen encounters, the investigative stop, is limited to brief, nonintrusive detention during a frisk for weapons or prelimi- nary questioning. 8. Constitutional Law: Criminal Law: Police Officers and Sheriffs: Search and Seizure. A second-tier encounter is considered a “seizure” sufficient to invoke Fourth Amendment safeguards; but because of its less intrusive character, it requires only that the stopping officer have specific and articulable facts sufficient to give rise to reasonable suspi- cion that a person has committed or is committing a crime. 9. Police Officers and Sheriffs: Search and Seizure: Arrests. The third tier of police-citizen encounters, arrests, is characterized by highly intru- sive or lengthy search or detention. 10. Constitutional Law: Criminal Law: Arrests: Probable Cause. The Fourth Amendment requires that an arrest be justified by probable cause to believe that a person has committed or is committing a crime. 11. Search and Seizure: Investigative Stops: Arrests. The line between a second-tier encounter, or investigatory stop, and a third-tier encounter, or de facto arrest, is sometimes difficult to draw, and it depends on all the surrounding circumstances. 12. Police Officers and Sheriffs: Search and Seizure: Time. Several circumstances are deemed relevant to the analysis of whether a seizure is a second-tier or third-tier encounter, including (1) the law enforce- ment purposes served by the detention, (2) the diligence with which law enforcement pursues the investigation, (3) the scope and intrusiveness of the detention, and (4) the duration of the detention. 13. Criminal Law: Police Officers and Sheriffs: Search and Seizure: Investigative Stops: Arrests: Motor Vehicles. The fact that a deten- tion may be considered investigative is not decisive on whether it is a second-tier encounter. The police may not carry out a full search of a person, or his or her vehicle, who is no more than suspected of criminal activity, nor may the police attempt to verify their suspicions by means that approach the circumstances of an arrest. 14. Police Officers and Sheriffs: Investigative Stops: Time. An investiga- tive detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop, and the methods employed should be the least intrusive means reasonably available to verify or dispel the officer’s suspicion in a short period of time. 15. Investigative Stops: Arrests: Time. If unreasonable force is used or if it lasts for an unreasonably long period of time, then an investigatory detention may turn into a de facto arrest.  - 314 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports STATE v. THOMAS Cite as 308 Neb. 312 16. Criminal Law: Police Officers and Sheriffs: Investigative Stops. Whether a detention was reasonable under the circumstances depends on a multitude of factors, including (1) the number of officers and police vehicles involved; (2) the nature of the crime and whether there is a reason to believe the suspect might be armed; (3) the strength of the officers’ articulable, objective suspicions; (4) the erratic behavior of or suspicious movements by the persons under observation; and (5) the need for immediate action by the officers and lack of opportunity for them to have made the stop in less threatening circumstances. 17. Police Officers and Sheriffs: Investigative Stops: Motor Vehicles: Weapons. Where the facts available to a law enforcement officer would warrant a person of reasonable caution in the belief that an occupant of a vehicle is armed and dangerous and that the use of forceful techniques, including blocking the vehicle and displaying firearms when ordering the occupants out of the vehicle, are reasonably necessary to protect the officer’s personal safety, the use of such techniques does not necessarily transform a second-tier encounter into a third-tier encounter. 18. Probable Cause: Words and Phrases. Reasonable suspicion entails some minimal level of objective justification for detention, something more than an inchoate and unparticularized hunch, but less than the level of suspicion required for probable cause. 19. Police Officers and Sheriffs: Investigative Stops: Probable Cause. Whether a police officer has a reasonable suspicion based on sufficient articulable facts depends on the totality of the circumstances and must be determined on a case-by-case basis. 20. ____: ____: ____. Information known to all of the police officers act- ing in concert can be examined when determining whether the officer initiating the stop had reasonable suspicion to justify a stop pursuant to Terry v. Ohio, 392 U.S. 1 , 88 S. Ct. 1868 , 20 L. Ed. 2d 889 (1968). 21. Criminal Law: Police Officers and Sheriffs: Investigative Stops: Motor Vehicles: Probable Cause: Time. The passage of time since the crime was committed is only a factor to consider when determining whether officers’ stopping a vehicle pursuant to information in a police bulletin had reasonable suspicion, based on specific and articulable facts, to justify a second-tier encounter. 22. Police Officers and Sheriffs: Investigative Stops: Probable Cause: Time. While the passage of time is a relevant factor to consider in an analysis of whether officers had reasonable suspicion to support a second-tier encounter, as particularity of the description increases, the effects of delay decrease. Appeal from the District Court for Douglas County: J. Michael Coffey, Judge. Affirmed.  - 315 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports STATE v. THOMAS Cite as 308 Neb. 312 Thomas C. Riley, Douglas County Public Defender, and Travis L. Wampler for appellant. Douglas J. Peterson, Attorney General, and Jordan Osborne for appellee. Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ. Freudenberg, J. NATURE OF CASE The defendant challenges the district court’s denial of his motion to suppress evidence found in his vehicle during a felony traffic stop that was based upon law enforcement’s belief that the vehicle matched the description in a police bul- letin of a vehicle used in a shooting committed 3 days earlier. The defendant argues that a police bulletin regarding a crime completed 3 days prior and without a description of the suspect was insufficient to justify the intrusion of the felony traffic stop. We affirm. BACKGROUND Following a jury trial, Arius L. Thomas was convicted of possession of a firearm by a prohibited person, a Class ID felony; possession of a controlled substance, a Class IV felony; and possession of marijuana, more than 1 ounce, a Class III misdemeanor. Thomas was sentenced to 5 to 10 years’ impris- onment on count 1, 2 years’ imprisonment on count 2, and 3 months’ imprisonment on count 3. These sentences were ordered to run consecutively, and Thomas was given credit for 397 days served against count 1. The convictions arise out of a stop of the vehicle Thomas was driving on October 22, 2018, based upon information con- tained in a police bulletin from a shots-fired incident 3 days ear- lier near 25th and Maple Streets in Omaha, Nebraska. During the investigation of the shots-fired incident, law enforcement obtained a video of the suspect vehicle from a surveillance camera located near the scene. The vehicle image captured  - 316 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports STATE v. THOMAS Cite as 308 Neb. 312 on the surveillance video was “dark gray in color with dam- age to the rear driver’s side [and] possibly identified as a 2010 Mazda 3.” This information, together with a still shot of the vehicle from the surveillance video and a reference image of a 2010 Mazda 3, was included in a police bulletin. On October 22, 2018, a police sergeant observed a vehicle parked in the area of 24th and Maple Streets that matched the description of the vehicle involved in the shots-fired incident on October 19. It was the same make, model, and color, and it had the same distinct damage to the rear driver’s side as shown in the photograph contained in the police bulletin. The police sergeant notified the officers in the north Omaha gang unit of the location of the suspect vehicle and requested assistance in its surveillance. Five police officers, including Chad Frodyma and Cortes Clark, reported to assist in the surveillance. A check of the vehicle’s license plates revealed that the vehicle was registered to Thomas. After approximately 3 hours of observation by the officers, an individual entered the vehicle. This person was later iden- tified as Thomas. The officers continued surveillance of the vehicle as it left the area. As the vehicle approached the inter- section of 72d Street and Ames Avenue, Frodyma observed the vehicle make what he thought to be an improper lane change, moving from the right-turn lane to the left-turn lane over the solid white line separating the two lanes. However, a traffic stop was not immediately made due to officer safety concerns based upon the suspicion that this vehicle had been involved in a shots-fired incident and the occupant could be armed. The officers continued following the vehicle until it pulled into an apartment complex parking lot. At that point, the offi- cers conducted what they described as a felony traffic stop. They activiated the emergency lights on their vehicles and exited them with their weapons drawn. The officers then com- manded Thomas to put his hands out of the window and open the door from the outside so he could exit the vehicle. Thomas put his hands out of the window, but he refused to get out of the vehicle.  - 317 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports STATE v. THOMAS Cite as 308 Neb. 312 Within seconds, officers approached the driver’s side of the vehicle, weapons still drawn, and attempted to pull Thomas out of the vehicle through the window. Thomas continued to resist while officers were trying to grab his hands to remove him from the vehicle. Frodyma could see Thomas pull his right hand back into the vehicle and reach between his legs and under the driver’s seat. Frodyma believed Thomas was possibly reaching for a weapon, so he deployed his Taser on Thomas. Thereafter, Thomas was removed from the vehicle, where he was placed on the ground and handcuffed. After Thomas was removed from the vehicle, officers observed through the windshield and the driver’s side window the butt of a handgun under the driver’s seat. Thomas was searched, and $522 cash in small denominations was found on his person. Based on the observation of the handgun, officers conducted a search of the rest of the vehicle and located a backpack in the back seat with 41 grams of marijuana, multiple alprazolam pills, plastic baggies, and a digital scale. Prior to trial, Thomas filed a motion to suppress the evi- dence found on his person and in the vehicle, asserting that “the arresting officers lacked probable cause and/or reasonable suspicion to conduct a ‘felony traffic stop’ and illegally detain [Thomas]; and further, the arresting officers conducted a war- rantless search of [Thomas’] property and persona” and “all evidence obtained as a result of this illegal traffic stop, deten- tion, and search” should be suppressed. At the suppression hearing, Frodyma testified to the facts as previously set forth regarding the incident on October 22, 2018. Clark testified similarly, but stated he did not ­personally see Thomas commit a traffic violation; his observations of Thomas’ vehicle were obstructed at times by other vehicles. After the hearing, the court overruled Thomas’ motion to suppress. The court found that any inconsistencies in the offi- cers’ testimonies regarding whether a traffic violation occurred could be used at trial to challenge their credibility on the matter. The court did not explicitly make findings of fact that  - 318 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports STATE v. THOMAS Cite as 308 Neb. 312 a traffic violation actually occurred, but generally noted that “a traffic violation, no matter how minor, creates probable cause to stop the driver of a vehicle.” Further, the court found that, in considering the totality of the circumstances, based on the information obtained from the surveillance video related to the shots-fired incident, “the officers had probable cause to conduct an investigative stop of [Thomas’] vehicle.” At trial, Thomas renewed the motion to suppress. The State offered substantially similar evidence regarding the events of October 22, 2018, from the perspective of multiple officers. The district court acknowledged that the motion to suppress was heard on May 29, 2019, and that the order overruling the motion was entered on August 2. It again overruled the motion, but made no additional findings of fact. ASSIGNMENT OF ERROR Thomas assigns that the trial court erred in denying Thomas’ motion to suppress. STANDARD OF REVIEW [1] In reviewing a trial court’s ruling on a motion to sup- press based on a claimed violation of the Fourth Amendment, an appellate court applies a two-part standard of review. 1 Regarding historical facts, an appellate court reviews the trial court’s findings for clear error, but whether those facts trig- ger or violate Fourth Amendment protections is a question of law that an appellate court reviews independently of the trial court’s determination. 2 [2] When a motion to suppress is denied pretrial and again during trial on renewed objection, an appellate court considers all the evidence, both from trial and from the hearings on the motion to suppress. 3 1 See State v. Cox, 307 Neb. 762 , 950 N.W.2d 631 (2020). 2 See id. 3 State v. Hartzell, 304 Neb. 82 , 933 N.W.2d 441 (2019).  - 319 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports STATE v. THOMAS Cite as 308 Neb. 312 ANALYSIS [3] Thomas assigns that the trial court erred in ­overruling his motion to suppress evidence that was allegedly obtained as the fruit of an illegal seizure in violation of the Fourth Amendment. Both the Fourth Amendment to the U.S. Constitution and article 1, § 7, of the Nebraska Constitution guarantee against unreasonable searches and seizures. 4 Thomas is challenging on appeal only the lawfulness of the stop. He does not specifically challenge the justification for the stop’s escalation after he resisted officers’ commands, whether a weapon was in plain view after he was removed from the vehicle, or whether the officers were justified in searching the vehicle after seeing the weapon. [4] In determining whether a seizure was reasonable, we balance the degree of the intrusion against the degree of objec- tive certainty that the person stopped is or has been engaged in criminal activity. 5 We hold that the officers who stopped Thomas employed a reasonable threat of force in light of a reasonable belief that the driver of the suspect vehicle could be armed or dangerous. Accordingly, and in light of all the other surrounding circumstances, the initial seizure was a tier-two encounter. Only reasonable suspicion was required to justify the seizure, and we conclude that the officers had a particular- ized and objective basis for suspecting Thomas of breaking the law. 6 Therefore, the district court did not err in denying Thomas’ motion to suppress. Initial Detention [5] There are three distinct tiers of police-citizen encoun- ters, each triggering a different analysis of the balance that 4 State v. Briggs, ante p. 84, ___ N.W.2d ___ (2021). 5 See State v. Van Ackeren, 242 Neb. 479 , 495 N.W.2d 630 (1993). 6 See Heien v. North Carolina, 574 U.S. 54 , 135 S. Ct. 530 , 190 L. Ed. 2d 475 (2014).  - 320 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports STATE v. THOMAS Cite as 308 Neb. 312 should be struck between the government’s interests and the invasion of privacy interests which a search or seizure entails. 7 [6] The first tier of police-citizen encounters involves no restraint of the liberty of the citizen involved, but, rather, the voluntary cooperation of the citizen is elicited through non­ coercive questioning. 8 This type of contact is outside the realm of Fourth Amendment protection. 9 [7,8] The second tier, the investigative stop, is limited to brief, nonintrusive detention during a frisk for weapons or preliminary questioning. 10 It is an intermediate response. 11 A second-tier encounter is considered a “seizure” sufficient to invoke Fourth Amendment safeguards; but because of its less intrusive character, it requires only that the stopping officer have specific and articulable facts sufficient to give rise to rea- sonable suspicion that a person has committed or is committing a crime. 12 [9,10] The third tier of police-citizen encounters, arrests, is characterized by highly intrusive or lengthy search or deten- tion. 13 The Fourth Amendment requires that an arrest be justi- fied by probable cause to believe that a person has committed or is committing a crime. 14 [11,12] The line between a second-tier encounter, or inves- tigatory stop, and a third-tier encounter, or de facto arrest, is sometimes difficult to draw, and it depends on all the surround- ing circumstances. In distinguishing a second-tier encounter from a third-tier encounter, “‘we must not adhere to “rigid 7 See State v. Van Ackeren, supra note 5 (quoting United States v. Armstrong, 722 F.2d 681 (11th Cir. 1984)). 8 Van Ackeren, supra note 5 . 9 See id. 10 Id. 11 See Van Ackeren, supra note 5 . 12 Id. (quoting Armstrong, supra note 7 ). 13 Id. 14 Id.  - 321 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports STATE v. THOMAS Cite as 308 Neb. 312 time limitations” or “bright line rules,” . . . but must use “common sense and ordinary human experience.”’” 15 Several circumstances are deemed relevant to the analysis of whether a seizure is a second-tier or third-tier encounter, including (1) the law enforcement purposes served by the detention, (2) the diligence with which law enforcement pursues the investiga- tion, (3) the scope and intrusiveness of the detention, and (4) the duration of the detention. 16 [13,14] The fact that a detention may be considered investi- gative is not decisive on whether it is a second-tier encounter. The police may not carry out a full search of a person, or his or her vehicle, who is no more than suspected of criminal activ- ity, nor may the police attempt to verify their suspicions by means that approach the circumstances of an arrest. 17 What is permitted for police to verify their suspicions will vary based on the particular facts and circumstances; but, certainly, “‘an investigative detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop’” and the “‘methods employed should be the least intrusive means reasonably available to verify or dispel the officer’s suspicion in a short period of time.’” 18 The police sergeant and two officers, Frodyma and Clark, testified that they employed felony traffic stop measures in stopping Thomas. These involve staying in a position of safety away from the suspect vehicle with weapons drawn and ver- bally ordering the occupants to exit the suspect vehicle with their hands up and to walk backward toward the officers. The police do this as a precautionary measure when there is reason to believe that a person in a vehicle is armed or dangerous. The U.S. Supreme Court has not yet specifically addressed such felony traffic stop procedures. But, in the seminal 15 Van Ackeren, supra note 5. Accord United States v. Sharpe, 470 U.S. 675 , 105 S. Ct. 1568 , 84 L. Ed. 2d 605 (1985). 16 See Van Ackeren, supra note 5 . 17 See id. 18 Id. at 487 , 495 N.W.2d at 637 .  - 322 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports STATE v. THOMAS Cite as 308 Neb. 312 second-tier case of Terry v. Ohio, 19 there was some use of force. The officer grabbed the defendant, spun him around, and patted him down, believing he was involved in criminal activity and possibly armed. Despite this use of force, the U.S. Supreme Court held that the intensity and scope of the sei- zure was not that of an arrest, but was what we now describe as a second-tier encounter. The Court held that regardless of whether an officer has reasonable cause to arrest an individual for a crime, where a reasonable officer would be warranted in the belief that the safety of the officer or others is in danger, a protective search and seizure for weapons is reasonable so long as it is confined in scope to an intrusion reasonably designed to achieve its purpose, or “strictly circumscribed by the exigen- cies which justify its initiation.” 20 While not discussing the type of felony traffic stop pro- cedures here presented, we have similarly found seizures to be second-tier encounters despite intrusions going somewhat beyond a typical investigatory stop, when the facts justi- fied a reasonable belief that an officer or public safety was in danger. 21 In State v. Wells, 22 we explained that the use of handcuffs does not transform a tier-two encounter into a tier- three encounter when using handcuffs is reasonably necessary to protect officer safety during an investigative stop, but that using handcuffs will transform the tier-two encounter into tier- three encounter when the facts do not justify a belief that the suspect may be dangerous. [15,16] We said that, generally, if unreasonable force is used or if it lasts for an unreasonably long period of time, then an investigatory detention may turn into a de facto arrest. 23 19 Terry v. Ohio, 392 U.S. 1 , 88 S. Ct. 1868 , 20 L. Ed. 2d 889 (1968). 20 Id., 392 U.S. at 26 . 21 See, State v. Shiffermiller, 302 Neb. 245 , 922 N.W.2d 763 (2019); State v. Wells, 290 Neb. 186 , 859 N.W.2d 316 (2015). See, also, State v. Rogers, 297 Neb. 265 , 899 N.W.2d 626 (2017). 22 State v. Wells, supra note 21. 23 Id.  - 323 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports STATE v. THOMAS Cite as 308 Neb. 312 Whether a detention was reasonable under the circumstances depends on a multitude of factors, including (1) the number of officers and police vehicles involved; (2) the nature of the crime and whether there is a reason to believe the suspect might be armed; (3) the strength of the officers’ articulable, objective suspicions; (4) the erratic behavior of or suspicious movements by the persons under observation; and (5) the need for immediate action by the officers and lack of opportunity for them to have made the stop in less threatening circum- stances. 24 In Wells, noting the nature of the suspected crime of narcotics trafficking and that the defendant was digging in his pocket and concealing his right arm, we found that the officers’ decision to gain control of the defendant’s arm and handcuff him for a short time while conducting the investigation was a reasonable precaution and did not escalate the encounter to a tier three. Similarly, in State v. Shiffermiller, 25 we held that the use of handcuffs and a 30-to-40 minute investigation of a reported assault did not amount to third-tier encounter because this ini- tial detention was not unreasonable, highly intrusive, or exces- sive in length. In Shiffermiller, an officer responded to a report that two individuals were fighting. The officer who arrived on scene observed the defendant, with a torn shirt and blood on his face, arm, and knuckles, walking toward a parked car with its trunk open. When the officer approached the defendant and asked about the reported altercation, the defendant appeared to be angry, agitated, and under the influence of drugs or alcohol. Three more officers then arrived on scene. When the defend­ ant stated he wanted to leave, the officers told him he was not free to leave until the situation was investigated. Due to the defendant’s being agitated, uncooperative, and appearing to be under the influence of drugs or alcohol, officers placed the defendant in handcuffs and seated him on the curb while 24 Id. See, also, United States v. Jones, 759 F.2d 633 , 639-40 (8th Cir. 1985). 25 Shiffermiller, supra note 21 .  - 324 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports STATE v. THOMAS Cite as 308 Neb. 312 they searched for the other party involved in the reported fight. We held that the officers did not exceed the scope of a second-tier encounter. While the officers may not have had any indication that the defendant was armed, the circumstances jus- tified the use of some sort of control to ensure that the defend­ ant did not attempt to leave during the investigation and to ensure that he was not a danger to himself or others throughout the investigation. 26 Other jurisdictions have more directly addressed procedures involving felony stops or felony traffic stops and have indi- cated that the use of reasonable force or threat of force does not transform a second-tier encounter into a third-tier encoun- ter so long as the facts justify a reasonable belief that the sus- pect may be armed or dangerous. 27 These jurisdictions distin- guish felony stops from third-tier encounters by acknowledging that felony stop procedures are used when the circumstances warrant such measures in order for officers to safely conduct a second-tier stop. 28 The 10th Circuit Court of Appeals has analyzed on multiple occasions when forceful techniques used by police officers transform a second-tier encounter into a third-tier encoun­ ter, and its comparisons are helpful in this case. In U.S. v. Shareef, 29 the court held that a display of firearms, remov- ing occupants from three stopped vehicles, and frisking and handcuffing them did not transform the second-tier encounter into a third-tier enounter because of the officers’ reasonable belief that one of the motorists was armed and dangerous. Similarly, in U.S. v. Perdue, 30 the court held that the fact that 26 Id. 27 See, e.g., Maresca v. Bernalillo County, 804 F.3d 1301 (10th Cir. 2015); U.S. v. Gomez, 623 F.3d 265 (5th Cir. 2010); Smoak v. Hall, 460 F.3d 768 (6th Cir. 2006). 28 See, Maresca, supra note 27; Smoak, supra note 27 . 29 U.S. v. Shareef, 100 F.3d 1491 (10th Cir. 1996). 30 U.S. v. Perdue, 8 F.3d 1455 (10th Cir. 1993).  - 325 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports STATE v. THOMAS Cite as 308 Neb. 312 two officers removed two occupants from a vehicle at gunpoint in a remote area and made them lie on the ground did not transform the second-tier encounter into a third-tier encoun- ter, where officers reasonably believed occupants were armed and dangerous. In contrast, in Maresca v. Bernalillo County, 31 the 10th Circuit Court of Appeals concluded that under the circum- stances, the felony stop procedures were unreasonable and therefore transformed a second-tier encounter into a third-tier encounter. 32 Two officers driving separate cars had pulled the driver and his family over and, with the assistance of more officers called to the scene, conducted a felony traffic stop when the officer believed that the vehicle was stolen. But there was no information regarding the theft that indicated any weap- ons were involved. The stop was along a highway in broad daylight, and the family fully cooperated and complied with every directive. The court determined that the actions the offi- cers took—ordering the family out of their truck at gunpoint, requiring them to lift their clothes for the officers to check their waistbands for weapons, forcing them to lie face down on the highway, and handcuffing four of them and locking them in separate patrol cars—effected an arrest because the deputies had no objectively reasonable basis to believe that such force- ful measures were necessary for them to conduct the investiga- tive detention. 33 [17] We hold that where the facts available to a law enforce- ment officer would warrant a person of reasonable caution in the belief that an occupant of a vehicle is armed and danger- ous and that the use of forceful techniques, including blocking the vehicle and displaying firearms when ordering the occu- pants out of the vehicle, are reasonably necessary to protect the officer’s personal safety, the use of such techniques does 31 Maresca, supra note 27. 32 See, also, U.S. v. Melendez-Garcia, 28 F.3d 1046 (10th Cir. 1994). 33 Maresca, supra note 27.  - 326 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports STATE v. THOMAS Cite as 308 Neb. 312 not necessarily transform a second-tier encounter into a third- tier encounter. Such techniques, designated here as a “felony traffic stop,” may under the circumstances be the least intru- sive means reasonably available to verify or dispel the offi- cer’s suspicion. That said, the tier of the encounter is determined by all of the circumstances, including the law enforcement purposes served by the detention, the diligence with which law enforce- ment pursues the investigation, the scope and intrusiveness of the detention, and the duration of the detention. 34 And, in analyzing whether a threat or use of force transforms a tier-two encounter into a tier-three encounter, we consider the number of officers and police vehicles involved; the nature of the crime and whether there is a reason to believe the suspect might be armed; the strength of the officers’ articulable, objective suspi- cions; the erratic behavior of or suspicious movements by the persons under observation; and the need for immediate action by the officers and lack of opportunity for them to have made the stop in less threatening circumstances. 35 In this case, the officers looked for a vehicle matching a description in the police bulletin of the vehicle involved in the crime and observed one such vehicle near the scene of the crime. After Thomas drove off in the vehicle, officers followed it until it could be stopped safely. The crime under investiga- tion was a shots-fired incident 3 days earlier, and the weapon used during the incident had not been recovered. To approach the vehicle safely to conduct their investigation of the crime, the officers blocked Thomas’ vehicle in, stayed in a position of safety near their vehicles with weapons drawn, and com- manded Thomas to put his hands out the window of his vehi- cle, open the door from the outside, and exit the vehicle. We find that the purpose served by the detention was a temporary seizure for investigatory purposes and that law enforcement 34 See Van Ackeren, supra note 5 . 35 See Wells, supra note 21. See, also, Jones, supra note 24 .  - 327 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports STATE v. THOMAS Cite as 308 Neb. 312 pursued its investigation diligently. Further, the scope and intrusiveness of the investigatory detention was justified by the officers’ reasonable belief that the driver might be armed, and it did not exceed the scope circumscribed by that exigency. The seizure was a tier-two encounter. Reasonable Suspicion [18,19] Having determined that the felony traffic stop in this case was a tier-two police-citizen encounter, we now examine whether, under the totality of the circumstances, the officers had reasonable suspicion. Reasonable suspicion entails some minimal level of objective justification for detention, some- thing more than an inchoate and unparticularized hunch, but less than the level of suspicion required for probable cause. 36 Whether a police officer has a reasonable suspicion based on sufficient articulable facts depends on the totality of the cir- cumstances and must be determined on a case-by-case basis. 37 The totality of the circumstances analysis is based on an objec- tive standard. 38 [20] At the time Thomas’ vehicle was put under surveillance, officers were aware of the information in the police bulletin that a vehicle matching the make, model, and distinctive dam- age to the rear driver’s side of Thomas’ vehicle was involved in the crime 3 days before. The fact that the officers had no personal knowledge regarding the specific circumstances of the shots-fired incident is irrelevant, because this court has adopted the collective knowledge doctrine. “‘[I]nformation known to all of the police officers acting in concert can be examined when determining whether the officer initiating the stop had reasonable suspicion to justify a Terry stop.’” 39 Thomas concedes that reasonable suspicion may be based on a vehicle description alone when in relation to a crime 36 State v. Montoya, 305 Neb. 581 , 941 N.W.2d 474 (2020). 37 Id. 38 See Terry, supra note 19 . 39 State v. Wollam, 280 Neb. 43 , 57, 783 N.W.2d 612 , 624 (2010).  - 328 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports STATE v. THOMAS Cite as 308 Neb. 312 that is afoot. Nevertheless, Thomas argues that the 3-day span of time since the incident made the vehicle description, espe- cially when it lacked a description of the suspect, insufficient to establish reasonable suspicion for the seizure in this case. We disagree. In U.S. v. Marxen, 40 the Sixth Circuit Court of Appeals rejected a similar argument that since 11 days had passed since the robbery, “any reasonable suspicion that the officers possessed . . . had evaporated.” In Marxen, two individuals, described by witnesses, committed an armed robbery of a con- venience store. Witnesses also described the vehicle the rob- bers were driving, along with the license plate number of the vehicle. Based on the license plate number, police determined the defendant owned the vehicle described, but the defendant did not match the description of either robber. The defendant was placed under surveillance and did nothing suspicious nor did he meet with any individuals fitting the description of the robbers during this surveillance. Eventually—11 days after the robbery and 6 days after the defendant was placed under sur- veillance—police stopped the defendant by blocking his vehi- cle with several police cars. Even though the defendant had not committed any traffic violations, the defendant was removed from the driver’s seat of the vehicle and placed in handcuffs while the officers conducted their investigation. The trial court in Marxen had granted the defendant’s motion to suppress evidence found during the course of the stop, on the grounds that the police lacked reasonable sus- picion. But the Sixth Circuit Court of Appeals reversed. The court determined that the passage of time did not negate the justification for the stop, but is only a factor to consider when determining whether the officers had reasonable suspicion, based on specific and articulable facts, that the defendant’s vehicle had been involved in criminal activity. The court reasoned that because the police officers were reasonably certain of the make, model, and general color of the vehicle 40 U.S. v. Marxen, 410 F.3d 326 , 330 (6th Cir. 2005).  - 329 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports STATE v. THOMAS Cite as 308 Neb. 312 used in the robbery; the description matched the defendant’s vehicle; and the license plate number of the getaway vehicle matched the license number of the defendant’s vehicle, under the totality of the circumstances, the officers had reasonable suspicion to believe that the defendant’s vehicle was involved in the robbery. In reversing the suppression of the evidence by the trial court in Marxen, the Sixth Circuit Court of Appeals concluded that police are allowed to conduct investigatory stops for “com- pleted felonies” if there is reasonable suspicion to believe that the vehicle was involved in criminal activity. 41 This investiga- tory stop is allowed “even if officers do not have reasonable suspicion to believe that the owner and/or driver of the vehicle was directly involved in the criminal activity.” 42 [21,22] We agree that the passage of time since the crime was committed is only a factor to consider when determining whether officers’ stopping a vehicle pursuant to information in a police bulletin had reasonable suspicion, based on specific and articulable facts, to justify a second-tier encounter. While the 3-day passage of time in this case is a relevant factor to consider in determining whether the officers had reasonable suspicion to stop Thomas, “[a]s particularity of the description increases, the effects of delay decrease.” 43 A generic description of a dark gray 2010 Mazda 3 may not have been sufficient to conduct a felony traffic stop of every vehicle in Omaha matching that description, but we need not determine that here based on these facts. Here, the still shot of the suspect vehicle from the surveillance video showed distinctive damage to the rear driver’s side. This provided a more exact detail for the officers to look for in locating a par- ticular vehicle regardless of the time that had passed since the shots-fired incident. The fact that the vehicle so specifically 41 Id. at 332 . 42 Id. 43 See United States v. Jackson, 700 Fed. Appx. 411 , 416 (6th Cir. 2017).  - 330 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports STATE v. THOMAS Cite as 308 Neb. 312 matched the photograph and description in the police bulletin, along with the fact that it was initially located within a block of where the shots-fired incident occurred, provided reason- able suspicion to conduct an investigatory stop of the vehicle. Under these circumstances, a particular description of the suspect who committed the prior shooting was not required to justify the tier-two stop. Since the officers had reasonable suspicion to conduct an investigatory stop of Thomas’ vehicle based on the police bul- letin alone, we need not determine whether the encounter was justified by the observation of a traffic violation. CONCLUSION For the foregoing reasons, the judgment of the district court is affirmed. Affirmed.

2021-03-19 05:09:10.215741+00

https://www.nebraska.gov/apps-courts-epub/public/viewOpinion?docId=N00007600PUB

Nebraska Supreme Court Online Library www.nebraska.gov/apps-courts-epub/ 03/19/2021 12:09 AM CDT - 361 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports STATE v. REAMES Cite as 308 Neb. 361 State of Nebraska, appellee, v. Raela C. Reames, appellant. ___ N.W.2d ___ Filed February 5, 2021. No. S-20-318. 1. Effectiveness of Counsel: Constitutional Law: Statutes: Records: Appeal and Error. Whether a claim of ineffective assistance of counsel can be determined on direct appeal presents a question of law, which turns upon the sufficiency of the record to address the claim without an evidentiary hearing or whether the claim rests solely on the interpreta- tion of a statute or constitutional requirement. 2. Jurisdiction: Appeal and Error. A jurisdictional question which does not involve a factual dispute is determined by an appellate court as a matter of law. 3. ____: ____. Before reaching the merits of the legal issue presented for review, an appellate court must determine whether it has jurisdiction over the matter before it. 4. ____: ____. Appellate courts have an independent obligation to ensure they have appellate jurisdiction. 5. Jurisdiction: Time: Statutes: Appeal and Error. It is mandatory and jurisdictional that a notice of appeal be filed within the time required by statute. 6. Jurisdiction: Final Orders: Time: Appeal and Error. Under Neb. Rev. Stat. § 25-1912 (1) (Cum. Supp. 2018), where a notice of appeal is not filed within 30 days from the entry of the final order appealed from, an appellate court obtains no jurisdiction to hear the appeal, and the appeal must be dismissed. 7. Jurisdiction: Judgments: Criminal Law: Words and Phrases: Appeal and Error. A judgment is the final determination of the rights of the parties in an action. In a criminal case, the judgment from which an appellant may appeal is the sentence. 8. Criminal Law: Probation and Parole: Sentences. Under Neb. Rev. Stat. § 29-2263 (3) (Reissue 2016), a court may adjust conditions of probation as changing circumstances warrant, but this statutory ability  - 362 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports STATE v. REAMES Cite as 308 Neb. 361 to modify probation is not an opportunity to collaterally attack the sen- tencing judgment or to reassess whether initial conditions of probation were erroneous. 9. Jurisdiction: Final Orders: Appeal and Error. For an appellate court to acquire jurisdiction of an appeal, there must be a final order or final judgment entered by the court from which the appeal is taken. 10. Final Orders: Appeal and Error. There are three types of final orders which may be reviewed on appeal: (1) an order affecting a substantial right in an action that, in effect, determines the action and prevents a judgment; (2) an order affecting a substantial right made during a spe- cial proceeding; and (3) an order affecting a substantial right made on summary application in an action after a judgment is rendered. 11. Final Orders. There are many factors to be considered when determin- ing whether an order affects a substantial right, such as (1) the impor- tance of the right and (2) the importance of the effect on the right by the order at issue. 12. Final Orders: Words and Phrases. A substantial right is a legal right, not just a technical right. 13. Final Orders: Appeal and Error. An order affects a substantial right if it affects the subject matter of the litigation, such as diminishing a claim or defense that was available to the appellant prior to the order from which he or she is now appealing. 14. Final Orders. Whether the effect of an order is substantial depends on whether it affects with finality the rights of the parties in the sub- ject matter. 15. Final Orders: Appeal and Error. An order affects a substantial right when the right would be significantly undermined or irrevocably lost by postponing appellate review. 16. Judgments: Appeal and Error. A party is not entitled to prosecute error upon the granting of an order or the rendition of a judgment when the same was made with his or her consent, or upon his or her application. 17. Effectiveness of Counsel: Records: Appeal and Error. When a defend­ant’s trial counsel is different from counsel on direct appeal, the defendant must raise on direct appeal any issue of trial counsel’s ineffec- tive performance which is known to the defendant or is apparent from the record. Appeal from the District Court for Lancaster County: Darla S. Ideus, Judge. Appeal dismissed. Joe Nigro, Lancaster County Public Defender, and Megan Kielty for appellant.  - 363 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports STATE v. REAMES Cite as 308 Neb. 361 Douglas J. Peterson, Attorney General, and Stacy M. Foust for appellee. Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ. Funke, J. Raela C. Reames purports to appeal her sentence of pro- bation stemming from a conviction in the district court for Lancaster County, Nebraska. Three days after the sentencing, the court modified the order of probation. Reames filed her notice of appeal 31 days after the initial sentencing order was filed and 28 days after the amended order of probation was filed. For various reasons, we lack jurisdiction to hear this mat- ter and we dismiss the appeal. I. BACKGROUND Following a jury trial, Reames was found guilty of one count of possession of a controlled substance. On March 17, 2020, the district court sentenced Reames to 1 year of pro- bation. One of the conditions of probation was that Reames reside in Lancaster County and obtain permission from her pro- bation officer before changing her address. At the conclusion of the sentencing hearing, Reames’ counsel asked the court for permission to withdraw her motion for appellate bond, because Reames indicated to her that she “no longer desire[d] to appeal the matter.” On March 20, 2020, the court entered an amended order of probation, which Reames had signed on March 18. The order modified the probation to allow Reames to reside in Kansas instead of Nebraska. The rest of the March 17 sentencing order remained in effect. On April 17, 2020, Reames, through trial counsel, filed a notice of appeal, seeking to appeal the March 17 sentencing order. On June 1, the Nebraska Court of Appeals entered a miscellaneous entry determining that Reames’ notice of appeal was timely as to the March 20 amended order of probation,  - 364 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports STATE v. REAMES Cite as 308 Neb. 361 but untimely as to the March 17 sentencing order. The court instructed the parties to address, in their respective briefs, why the appeal should not be dismissed for lack of jurisdiction. On June 29, 2020, Reames’ trial counsel filed a motion to withdraw because Reames had been appointed a new attorney for the appeal. The court sustained the motion to withdraw on July 16. Reames filed her appellant’s brief on August 6 through her new counsel. II. ASSIGNMENT OF ERROR On appeal, Reames assigns, restated, that she received inef- fective assistance of counsel when her trial counsel failed to timely appeal from the March 17, 2020, sentencing order. III. STANDARD OF REVIEW [1] Whether a claim of ineffective assistance of counsel can be determined on direct appeal presents a question of law, which turns upon the sufficiency of the record to address the claim without an evidentiary hearing or whether the claim rests solely on the interpretation of a statute or constitutional requirement. 1 [2] A jurisdictional question which does not involve a fac- tual dispute is determined by an appellate court as a matter of law. 2 IV. ANALYSIS [3,4] Reames’ sole assignment of error is that her trial coun- sel was ineffective for failing to timely appeal the March 17, 2020, sentencing order. However, before reaching the merits of the legal issue presented for review, we must determine whether we have jurisdiction over this matter. 3 Appellate courts have an independent obligation to ensure we have appellate 1 State v. Theisen, 306 Neb. 591 , 946 N.W.2d 677 (2020). 2 State v. Paulsen, 304 Neb. 21 , 932 N.W.2d 849 (2019); State v. McGuire, 301 Neb. 895 , 921 N.W.2d 77 (2018). 3 See Paulsen, supra note 2 .  - 365 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports STATE v. REAMES Cite as 308 Neb. 361 jurisdiction. 4 For reasons discussed below, we find this court lacks the requisite appellate jurisdiction over this appeal. As a threshold matter, we acknowledge that there is some confusion as to whether Reames is appealing from the March 17, 2020, sentencing order or from the March 20 amended order of probation. For sake of completeness, we will dis- cuss both. 1. March 17, 2020, Sentencing Order We first analyze whether Reames timely appealed from the March 17, 2020, sentencing order. Neb. Rev. Stat. § 25-1912 (Cum. Supp. 2018) provides in relevant part as follows: (1) The proceedings to obtain a reversal, vacation, or modification of judgments and decrees rendered or final orders made by the district court, including judgments and sentences upon convictions for felonies and mis­ demeanors, shall be by filing in the office of the clerk of the district court in which such judgment, decree, or final order was rendered, within thirty days after the entry of such judgment, decree, or final order, a notice of intention to prosecute such appeal signed by the appellant or appel- lants or his, her, or their attorney of record and . . . by depositing with the clerk of the district court the docket fee required by section 33-103. [5-7] Further, we have held that it is mandatory and juris- dictional that a notice of appeal be filed within the time required by statute 5; where a notice of appeal is not filed within 30 days from the entry of the final order appealed from, as required by § 25-1912(1), this court obtains no jurisdiction to hear the appeal, and the appeal must be dis- missed. 6 We have also held that a judgment is the final deter- mination of the rights of the parties in an action and that in a 4 Id. See, State v. Uhing, 301 Neb. 768 , 919 N.W.2d 909 (2018); State v. Yos-Chiguil, 281 Neb. 618 , 798 N.W.2d 832 (2011). 5 State v. Flying Hawk, 227 Neb. 878 , 420 N.W.2d 323 (1988). 6 Id.  - 366 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports STATE v. REAMES Cite as 308 Neb. 361 criminal case, the judgment from which an appellant may appeal is the sentence. 7 Reames, through her trial counsel, filed her notice of appeal on April 17, 2020, which was 31 days after the sentencing order was entered. Therefore, to the extent that Reames is attempting to appeal the March 17 sentencing order, such appeal is untimely and we dismiss it for lack of jurisdiction. 2. March 20, 2020, Amended Order (a) Jurisdiction Recognizing that an appeal from the March 17, 2020, sen- tencing order would be untimely, Reames seems to instead treat this appeal as a direct appeal from the March 20 amended order of probation. Though Reames acknowledges that she is unable to collaterally attack the March 17 sentencing order, she contends that the entry of the amended order of probation allows her to argue the ineffective counsel issue as if this were a direct appeal of the original judgment. As discussed above, the amended order of probation altered a condition of Reames’ probation to allow her to reside in Kansas instead of in Nebraska. Neb. Rev. Stat. § 29-2263 (3) (Reissue 2016) provides in part that “[d]uring the term of pro- bation, the court on application of a probation officer or of the probationer, or its own motion, may modify or eliminate any of the conditions imposed on the probationer or add further condi- tions authorized by section 29-2262.” [8] In interpreting § 29-2263(3), we have explained that this statute allows a court to adjust conditions of probation as changing circumstances warrant, but that this statutory abil- ity to modify probation is not an opportunity to collaterally attack the sentencing judgment or to reassess whether initial conditions of probation were erroneous. 8 Thus, Reames is 7 Paulsen, supra note 2 ; State v. Thalmann, 302 Neb. 110 , 921 N.W.2d 816 (2019). See State v. Melton, ante p. 159, ___ N.W.2d ___ (2021). 8 See Paulsen, supra note 2 .  - 367 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports STATE v. REAMES Cite as 308 Neb. 361 correct that the order amending a condition of her probation does not allow her the opportunity to collaterally attack her original sentence. Additionally, the order amending a condition of probation does not allow Reames the opportunity to raise other assignments of error which could have been raised in a timely direct appeal. 9 Therefore, the issues before us become whether the March 20, 2020, amended order is a final, appeal- able order and what, if any, alleged errors could be raised in such an appeal. We recently considered a similar question in State v. Paulsen. 10 In Paulsen, on January 16, 2018, the defendant, Larry Paulsen, was sentenced to a term of 24 months of probation stemming from a conviction for driving under the influence. On August 28, Paulsen filed a motion to modify the condi- tions of his probation, asking the court to remove the prohibi- tion to possess firearms. After his motion was denied, Paulsen appealed the order denying modification, and as a result, we were tasked with determining whether the order was a final, appealable order. [9,10] There, we noted that for an appellate court to acquire jurisdiction of an appeal, there must be a final order or final judgment entered by the court from which the appeal is ­taken. 11 We further noted that under Neb. Rev. Stat. § 25-1902 (Reissue 2016), there are three types of final orders which may be reviewed on appeal: (1) an order affecting a substan- tial right in an action that, in effect, determines the action and prevents a judgment; (2) an order affecting a substantial right made during a special proceeding; and (3) an order affecting a substantial right made on summary application in an action after a judgment is rendered. 12 We determined that Paulsen’s appeal fell into the third category, because an order “‘upon 9 See id. 10 Id. 11 Id.; Simms v. Friel, 302 Neb. 1 , 921 N.W.2d 369 (2019). 12 Paulsen, supra note 2 . See Thalmann, supra note 7 .  - 368 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports STATE v. REAMES Cite as 308 Neb. 361 a summary application in an action after judgment’” is “‘an order ruling on a postjudgment motion in an action,’” and that “Paulsen’s motion seeking a modification of his probation terms plainly meets that definition.” 13 [11-15] We next considered whether the denial of Paulsen’s motion to modify probation affected a substantial right. In doing so, we noted that there are many factors to be considered when determining whether an order affects a substantial right, such as (1) the importance of the right and (2) the importance of the effect on the right by the order at issue. 14 Regarding the latter, we have stated that a substantial right is a legal right, not just a technical right. 15 We have further stated that an order affects a substantial right if it affects the subject matter of the litigation, such as diminishing a claim or defense that was available to the appellant prior to the order from which he or she is now appealing. 16 Additionally, whether the effect of an order is substantial depends on whether it affects with finality the rights of the parties in the subject matter. 17 Moreover, an order affects a substantial right when the right would be signif- icantly undermined or irrevocably lost by postponing appellate review. 18 Ultimately, we determined that the denial of Paulsen’s motion did affect a substantial right and, as a result, we found that we had appellate jurisdiction to consider the merits of Paulsen’s appeal. In turning to the matter before us, Reames’ appeal also falls into the third category of final orders, because it appeals an order ruling on a postjudgment motion in an action. However, we find it difficult to appreciate how the amended order of probation affected a substantial right. 13 Paulsen, supra note 2, 304 Neb. at 25 , 932 N.W.2d at 852. 14 See, Paulsen, supra note 2 ; Thalmann, supra note 7 . 15 See id. 16 Id. 17 Id. 18 Id.  - 369 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports STATE v. REAMES Cite as 308 Neb. 361 Though requiring a probationer to live in a specific location might affect a substantial right in some cases, here Reames was merely allowed to reside in Kansas instead of Nebraska. The record is clear that at the time of sentencing, Reames was already living in Kansas; as such, allowing her to continue liv- ing in Kansas would not affect the subject matter of the litiga- tion by diminishing a claim or defense that was available to her prior to the amended order from which she is now appealing. Because no substantial right was affected by the amended order of probation, we find the March 20, 2020, amended order was not a final, appealable order from which Reames can prop- erly appeal. [16] Additionally, we find it difficult to say that Reames was aggrieved by the amended order of probation. Only a party aggrieved by an order or judgment can appeal; one who has been granted that which he or she sought has not been aggrieved. 19 Simply put, “‘a party is not entitled to prosecute error upon the granting of an order or the rendition of a judg- ment when the same was made with his [or her] consent, or upon his [or her] application.’” 20 Though the record is unclear as to who requested the modi- fication, it appears that Reames took no issue with it. In fact, at her sentencing hearing, Reames indicated that she preferred to reside in Kansas. Additionally, prior to the court’s issuing the modification, Reames signed the proposed order indicat- ing that she had received a copy of it and agreed to abide by the modified condition. Further, on appeal, Reames assigned no error to the amended order of probation. Because Reames was not aggrieved by the amended order of probation, we find Reames is not entitled to prosecute error upon the granting of the March 20, 2020, amended order. 19 Smith v. Lincoln Meadows Homeowners Assn., 267 Neb. 849 , 678 N.W.2d 726 (2004). 20 Id. at 852 , 678 N.W.2d at 729-30 , quoting Robins v. Sandoz, 175 Neb. 5 , 120 N.W.2d 360 (1963). Accord Mahlendorf v. Mahlendorf, ante p. 202, ___ N.W.2d ___ (2021).  - 370 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports STATE v. REAMES Cite as 308 Neb. 361 Therefore, to the extent that Reames is attempting to appeal the March 20, 2020, amended order of probation, we lack juris- diction over such appeal and dismiss it. (b) Postconviction Although we have concluded that we lack jurisdiction to hear this case, for the sake of completeness, we also address Reames’ contention that she was obligated to raise the issue of ineffective assistance of counsel in this appeal. An appellate court may, at its discretion, discuss issues unnecessary to the disposition of an appeal where those issues are likely to recur during further proceedings. 21 [17] When a defendant is represented both at trial and on direct appeal by the same counsel, the defendant’s first oppor- tunity to assert ineffective assistance of trial counsel is in a motion for postconviction relief, even if trial counsel elects not to file a direct appeal at all. 22 However, when a defendant’s trial counsel is different from counsel on direct appeal, the defendant must raise on direct appeal any issue of trial coun- sel’s ineffective performance which is known to the defendant or is apparent from the record. 23 Reames asserts that because her counsel on appeal dif- fers from her trial counsel, she was “obligated” to raise on direct appeal any issue of trial counsel’s ineffective perform­ ance which is known to her or is apparent from the record. 24 However, this reasoning holds true only if Reames had timely appealed from the criminal judgment, which was the March 17, 2020, sentencing order. Since Reames did not timely appeal the initial sentencing order, she lost the opportunity to file a direct appeal in this case. As a result, her first avail- able opportunity to raise issues of ineffective assistance of 21 Snyder v. Contemporary Obstetrics & Gyn., 258 Neb. 643 , 605 N.W.2d 782 (2000). 22 State v. Bazer, 276 Neb. 7 , 751 N.W.2d 619 (2008). 23 State v. Devers, 306 Neb. 429 , 945 N.W.2d 470 (2020). 24 See, id.; State v. Filholm, 287 Neb. 763 , 848 N.W.2d 571 (2014).  - 371 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports STATE v. REAMES Cite as 308 Neb. 361 trial counsel for failing to file a timely appeal would be in a motion for postconviction relief. 25 Therefore, as acknowledged by the State in oral argument, Reames’ new counsel was not obligated or authorized to raise the issue of ineffective assist­ ance of counsel in her appeal of the March 20 amended order of probation. V. CONCLUSION Regardless of which order Reames is appealing from, we lack appellate jurisdiction over this case. To the extent Reames is appealing from the March 17, 2020, sentencing order, such appeal is untimely because it was filed 31 days after the sen- tencing order was entered. To the extent Reames is appealing from the March 20 amended order, such appeal is improper because the amended order was not a final, appealable order and because Reames was not aggrieved by the amended order. Therefore, because there is no proper, timely appeal in this case, we dismiss for lack of jurisdiction. Appeal dismissed. 25 See, State v. Dalton, 307 Neb. 465 , 949 N.W.2d 752 (2020); State v. Dunkin, 283 Neb. 30 , 807 N.W.2d 744 (2012).

2020-01-17 22:02:13.679577+00

Lansdon

*939OPINION. Lansdon: Since the request for relief under section 328 of the Eevenue Act of 1918 applies to each of the taxable years under review, we first consider and decide the petitioner’s second allegation of error which relates only to the deficiency asserted for the fiscal period beginning November 1,1917, and ending June 30,1918. That question reduced to its simplest form is whether the return which the petitioner filed for the period in controversy, and which the Commissioner accepted and used as a basis for the computation and assessment of tax liability, was the return required by law. This question in turn depends on whether, on the agreed facts as set forth above, the Commissioner approved the computation of the petitioner’s net income on the basis of an accounting period ending June 30. If the new basis for computing income was without the approval of the Commissioner it follows that all returns should have been made for fiscal periods and years ending October 31 and that any statutory net loss sustained in the fiscal year ended October 31? 1919, should be applied to reduce the petitioner’s income and tax *940liability for the fiscal year ended October 31, 1918, under the provisions of section 204 (b) of the Revenue Act of 1918. The parties agree that from the date of its organization until October 31, 1917, the petitioner made its Federal income-tax returns on the basis of a fiscal year ending October 31. It is also stipulated that from June 30, 1917, the petitioner kept and closed its books on the basis of a fiscal year ending on June 30; that, after October 31, 1917, it made its Federal income-tax returns on the same basis; and that the Commissioner accepted such returns and computed and assessed the taxes due thereon. It is obvious, therefore, that the petitioner’s return as of June 30,1918, covered only the eight months from November 1, 1917, until that date, and that the real issues here are whether the return for such fiscal period was legally made. The statutory provision which we must construe in the decision of the issue presented here is section 212(b) of the Revenue Act of 1918 made applicable to corporations by section 232 of the same act, and is as follows: The net income shall be computed upon the basis, of the taxpayer’s annual accounting period (fiscal year or calendar year, as the case may be) in accordance with the method of accounting regularly employed in keeping the books of such taxpayer; but if no such method of accounting has been so employed, or if the method employed does not clearly reflect the income, the computation shall be made upon such basis and in such manner as in the opinion of the Commissioner does clearly reflect the income. If the taxpayer’s annual accounting period is other than a fiscal year as defined in section 200 or if the taxpayer has no annual accounting period or does not keep books, the net income shall be computed on the basis of the calendar year. If a taxpayer changes his accounting period from fiscal year to calendar year, from calendar year to fiscal year, or from one fiscal year to another, the net income shall, with the approval of the Commissioner, be computed on the basis of such new accounting period, subject to the provisions of section 226. That part of section 226 referred to above is as follows: That if a taxpayer, with the approval of the Commissioner, changes the basis of computing- net income * * * from one fiscal year to another fiscal year a separate return shall be made for the period between the close of the former fiscal year and the date designated as the close of the new fiscal year. It will be noted that where a taxpayer changes the basis of its accounting period from one fiscal year to another the law requires that with the approval of the Commissioner net income shall be computed on the basis of such new accounting period. In the instant proceeding we think it is clear that the petitioner established a new accounting period at June 30, 1917, but made its income-tax return for 1917 on the basis of the old period ended October 31 of that year. It was required to make its tax returns on the basis of its regular accounting period and after June 30, 1917, such period *941was a fiscal year ending June 30. It is as to the return for this period that the Commissioner has denied an abatement of tax assessed thereunder and that the petitioner asserts was not legally made since the computation of the tax liability on the basis of the new accounting period had not been approved by the Commissioner prior to the filing thereof. The date at which the return in controversy was filed is not disclosed by the record, but, as it was accepted by the Commissioner, we must presume that it was timely for the purposes for which it was made. We regard such return as ample notice that the petitioner had changed its accounting period and proposed, subject to the approval of the Commissioner, to compute and report its net income on the new basis in conformity with the law. Thereafter the only requirement for the validation of that computation and return was the approval of the Commissioner. Counsel for the petitioner argues that on the stipulated facts the regulations required the petitioner to ask and receive the Commissioner’s permission to change its basis of accounting from one fiscal year to another. It is agreed that such permission was not asked or granted but, in our opinion, no such condition is imposed either by statute or administrative regulations. The statute provides that if such a change is made net income, with the approval of the Commissioner, must be computed on the new basis and this is plainly in conformity with the statutory requirement that taxpayers must report income for taxation on the basis on which their accounts are regularly kept. The regulations go no further than to say that the Commissioner will not approve such a change except on notice at least 30 days before the due date of the return for the existing taxable year and at least 30 days before the due date of the taxpayer’s separate return for the period between the close of the existing taxable year and the date designated as the close of the proposed taxable year. In this situation the single duty of the Commissioner is to approve or disapprove the computation of net income on the new basis and the conditions precedent to such approval, if any, is in the regulation requiring notice of such proposed change. The return for the fiscal period ended June 30, 1918, advised the Commissioner that the petitioner had changed its accounting period from one fiscal year to another. It was filed within the time in which a return for the new period was due and well in advance of the date at which a return on the basis of the old fiscal year would be due in the event of the Commissioner’s disapproval of the computation of net income on the new basis. In these circumstances we are of the opinion that the timely filing of the petitioner’s return with income computed on the basis of its then established accounting year should *942be regarded as sufficient notice of an accomplished change of accounting period and of intention and desire to observe the law and thereafter compute and report net income on this basis. The acceptance of the return in question and of subsequent returns with income computed on the basis of a fiscal year ended June 30 indicates that the Commissioner so regarded it or that he waived the notice required by his regulations. In the light of the evidence, the law and the regulations of the Commissioner, we think it is clear that during the time involved herein the petitioner kept its accounts on the basis of a fiscal year ending on June 30 and that, with the approval of the Commissioner, it computed and reported its income on such basis. In our opinion the return filed for the fiscal period beginning November 1,1917, and ending June 30, 1918, was the return required by law. Norwich Woolen Mills Corporation, 18 B. T. A. 303; United States ex rel. Greylock Mills v. Blair, 293 Fed. 846. The fiscal year ending on June 30, 1919, therefore, began prior to October 31,1918, and is outside the time limit fixed by section 204 of the Revenue Act of 1918 for net loss purposes. Ennis-Brown Co., 10 B. T. A. 1248. As an alternative to the issue above considered the petitioner argues, but does not plead, that on the record it is not clear that it had any established accounting period at any time in its history and, therefore, under the law, its return should be made and its tax liability computed on a calendar year basis. In view of the stipulations of the parties, we see no merit in this contention. The petitioner’s first allegation of error is that the Commissioner erroneously refused to apply the relief provisions of sections 327 and 328 to the computation of its tax liability for each of the years in controversy. The record includes no evidence of such refusal but, even if application for relief were denied, we are of the opinion that there were no abnormal conditions in income or invested capital in either of the taxable years sufficient to entitle the petitioner to special assessment. The only fact urged in support of such claim is that in each of the years under review the petitioner used large amounts of borrowed capital. The record shows that for the fiscal period of eight months ending June 30, 1918, the petitioner’s invested capital was $97,907.23 and that its daily balances of borrowed capital for the same period averaged $55,330.57. In the same period its gross turnover was $954,233.82, and the net profit after all allowable deductions, $22,-643.30. In the fiscal year ending June 30, 1920, invested capital in the amount of $133,268.20 was used and the daily balances of borrowed capital averaged $289,250.68. We have many times held that the use of borrowed capital alone is not evidence of abnormality within the meaning of section 327 of the Revenue Act of 1918. In *943Higginbotham-Bailey-Logan Co., 8 B. T. A. 566, we said: “In the absence of any evidence that it [borrowed capital] is abnormal in the wholesale dry goods business, there is nothing on which we may base an opinion of normality or abnormality.” In C. A. Dahl Co., 10 B. T. A. 915, we said: The mere fact that a taxpayer has the use of borrowed capital is not in itself sufficient evidence of abnormality unless the fact that it creates an abnormal condition is clearly set forth in the evidence.” Substantially to the same effect are our decisions in Iron City Electric Co., 13 B. T. A. 286; Standard Rice Co., 13 B. T. A. 338; C. Bruno & Sons, Inc., 14 B. T. A. 103; Mutual Oil Co. of Arizona, 14 B. T. A. 538; Troy Motor Sales Co., 14 B. T. A. 546. Careful consideration of the decisions above cited and of many others of similar purport indicates that we have consistently held that the alleged abnormality must apply to the business of the taxpayer and create a hardship as compared with other concerns similarly situated. The petitioner was engaged in the business of buying, selling, and storing grain. The stipulation shows that many of the petitioner’s bills payable ran for very short terms ranging from 1 day to 10 days. This can mean only that, like every other concern in the same or a similar business, it was sight drafting against its consignments or borrowing on stored grain and pledging its bills of lading or warehouse receipts as collateral. This procedure enables grain buyers to transact a large business on a relatively small invested capital. There is nothing in the record to indicate that the petitioner’s methods of doing business were in any way different from the practices of other concerns similarly operating. The situation here as to borrowed capital seems to be entirely normal for the grain business but, in any event, the petitioner has not proved that it is abnormal. In support of its claim for special assessment the petitioner relies on, and cites, our decision in G. M. Standifer Construction Corporation, 4 B. T. A. 525. It is true that special assessment was allowed in that case on the basis of an abnormality of invested capital resulting from the use of large amounts of borrowed capital. In our opinion therein we expressly said: “ [Abnormality] is a fact that must be determined in each case.” The evidence in that proceeding proved abnormality in the business conducted by that taxpayer. The evidence in this case wholly fails to prove that any abnormality resulted from the use of borrowed capital in the business of buying, storing, and selling grain. Keviewed by the Board. Decision will be entered for the tespondent.

2020-01-17 22:02:13.711207+00

Fossan

*947OPINION. Van Fossan : In his brief the attorney for the petitioners attacks on various grounds the validity of assessment and collection of the tax under the conditions set forth in the findings of fact, the basic contention being that the waivers were not signed by the Commissioner personally. That brief contains the following statement: The evidence in this case shows that the petitioner signed the waivers in good faith and filed them with the Commissioner of Internal Revenue. Had the Commissioner exercised his discretion and signed the writings, it would undoubtedly have created an exception which would have permitted the assessment of the tax after the expiration of the limitation period. * # $ * * * The right to collect the tax was lost, not by any word or act of the petitioners, but by operation of law, and by reason of the failure of the Commissioner to exercise his discretion and sign the writing agreeing to assessment after the limitation. On examination the waivers are found to bear the name of the then Commissioner accompanied by certain initials, reasonably indicating that they were signed on behalf of the Commissioner by another. Signature by the Commissioner personally is not necessary to make the waivers valid. Perkins Land & Lumber Co., 9 B. T. A. 528; Trustees for Ohio & Big Sandy Coal Co., 9 B. T. A. 617; Greylock Mills, 9 B. T. A. 1281; National Piano Mfg. Co., 11 B. T. A. 46; Pantages Theater Co., 17 B. T. A. 82. The assessment and collection of the tax are not barred by the statutory period of limitation. As the second error the petitioners allege that the respondent determined that they were not affiliated with the United Hotels Co. during the year 1919 under section 240 (b) of the Revenue Act of 1918, which provides: For the purpose of tbis section two or more domestic 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. The petitioners originally filed their consolidated return as subsidiaries of the parent corporation, United Hotels Co. The respondent required them to file individual returns. Under the facts set forth above we are unable to find the petitioners were affiliated with United Hotels Co. during the taxable year. The case comes squarely within the reasoning of the court in Commissioner of Internal Revenue v. Adolph Hirsch & Co. *948(C. C. A., 2d Cir.), 30 Fed. (2d) 645. In that case the Hirsch brothers owned 94.85 per cent of the stock of Adolph Hirsch & Co. and 55.63 per cent of the Brazilian Co. The Bloomberg family owned the remaining 44.37 per cent of the second company. Bloom-berg was the personal attorney for the Hirsch brothers, had been intimately associated with them for years, and was the attorney who organized the second company. The affairs of the Brazilian Co. were handled by the Hirsch brothers, first through a partnership and later through the corporation, Adolph Hirsch & Co. No regular set of books was kept regarding the affairs of the Brazilian Co.; that is, there was no ledger, cash book, or sales book, and since 1913 it had no separate bank account. All activities were commenced and managed entirely by the Hirsch Co.; funds necessary for the conduct of the affairs of the Brazilian Co. were advanced by the Hirsch Co. by cable, by transferring or opening a bank credit against which a draft would be made by people in Brazil. Sales were made through and in the name of the Hirsch Co., and the proceeds were credited on the books of the Hirsch Co. In a word, the Brazilian Co. was conducted as a department of the Hirsch Co.’s business. No stock of either company was sold to the general public. Commenting on these facts, the court said: * * * We may regard the Hirsch brothers as of the same “ interest.” “ Substantially all ” was not intended to be interpreted as being any particular percentage, but must be applied to the particular facts of each case. We held in Ice Service Corp. v. Commissioner of Internal Revenue, 30 Fed. (2d) 230, decided January 7, 1929, that 75 per cent, was not a control of “ substantially all”’ of the stock. In the Revenue Acts of 1924, 1926 (section 240 (c), 43 Stat. 253, 44 Stat. 9; 26 USCA sec. 993 (c), and 1928 (sections 141 (d), 142 (c), Pub. No. 562, 70th Congress; 26 USCA secs. 2141 (d), 2142 (c), Congress has substituted for “ substantially all ” of the stock the words “ at least 95 per cent of the stock.” The court said further: * * * The management of the business of the corporation is not the control required by the statute. It refers to stock control. The fact that the minority is acquiescent, and permits the majority to manage the business, does not prove actual control over the minority interests. Nor does a control based upon friendship or professional relations satisfy the statute. The control of the stock owned by the same interest refers to beneficial interest. This meaning is consistent with the purpose of the statute to extend to those subject to the hazard of the enterprise, when they are substantially one and the same, the benefit of the consolidated reports. Applying the principles announced by the court, the fact that there was a close personal or professional relationship among the various stockholders or that certain of them were appointees or employees of Rockwell is not controlling. Nor is the fact that the operations *949were entirely dominated by the executive committee sufficient. The acquiescence óf minority stockholders and the covenant of certain stockholders to offer their stock to the majority before sale elsewhere are to be similarly viewed. The stock control requisite to achieve affiliation must be more tangible and real. The aggregate of a number of inadequate conditions does not constitute the control required by the statute. A study of the tabular statement included in the findings of fact showing the distribution of stock holdings and other proven facts fails to disclose that one corporation owns directly or controls through closely affiliated interests or by a nominee or nominees substantially all of the stock of the petitioning companies. We are confronted with the same result when the facts are studied in an attempt to find the existence of ownership or control of substantially all of the stock of the several corporations by the same interests. Reviewed by the Board. Judgment will be entered for the respondent. Trammell concurs in the result only.

2020-01-17 22:02:13.828376+00

Love

*956OPINION. Love: Two of the three issues presented by the pleadings in this proceeding have been settled by agreement of the parties. The petitioner concedes the correctness of the respondent’s determination relative to invested capital, and the respondent concedes that the petitioner is entitled to a deduction of $310, representing Christmas bonuses to employees during the taxable period. Upon undertaking consideration of the third issue it may first be pointed out that the petitioner is not seeking deduction of the $10,000 reserve set up during the fiscal year ended November 30, 1920 (hereinafter referred to as the year 1920), but is claiming a deduction for *957the said year of $4,294.92, representing the actual expense of the operation which the reserve was intended to cover. The respondent contends that the deduction is properly a deduction from income of the fiscal year ended November 30, 1921 (hereinafter referred to as the year 1921), and he has allowed it accordingly. It appears that in September, 1920, lumbering operations of the petitioner on a tract of leased land situated approximately twenty-three miles from La Madera, N. Mex., were completed and the petitioner desired to abandon a lumber spur serving the operations mentioned and connecting with the main line of the Denver & Rio Grande Railroad at La Madera. The rails (and possibly the ties) in use on this spur were held by the petitioner under a lease which required payment of an annual rental in advance on January 1 of each year. Because of this and the possibility of damage to the roadbed and rails if the spur were snowed in for the winter, the petitioner was anxious to have the rails lifted and returned to the lessor before the next annual rental fell due. In September, 1920, it entered into a verbal contract with Allen whereby the latter agreed to remove the rails and the petitioner agreed to pay $200 per track mile for such service and to furnish a locomotive, cars and a train crew. At the time this contract was made the parties doubted that the rails could be removed before the following spring and apparently the removal was not commenced until some time in 1921. Before closing its books for 1920 the petitioner set up a reserve of $10,000 to cover the removal of the rails. The removal was completed in May or June, 1921, and the total cost, including payments to Allen and maintenance of the petitioner’s locomotive, cars and train crew, was determined to be $4,294.92. The actual payment of this amount occurred in 1921. The petitioner now claims a deduction of the $4,294.92 as an expense properly accrued in 1920 at the time the contract was made. The respondent contends that no liability was incurred during 1920 and that the expense was not properly accrued in that year. The question for determination therefore is whether or not a liability of the petitioner for payment of the deduction claimed was created or incurred simultaneously with its agreement with Allen. We will not attempt to distinguish between such portion of the deduction claimed as represents payments to Allen and such portion as represents expenses of the petitioner’s locomotive, cars, and train crew, because, in our view, the petitioner’s theory rests upon a false predicate, to wit, that liability for the payment eventually made was *958“ incurred ” simultaneously with, the making of the contract. The contract was an executory one calling for future service by Allen. When it was made the only immediate effect was the incidence of the obligations of the parties to keep their contract. And the measure of such an obligation is not the contract price but the response in damages for its breach. The obligation was therefore a contingent one and, the contingency not happening, such a liability was never incurred. We think no liability was incurred by the petitioner under its contract with Allen until, at the time in 1921 contemplated by the parties when making the contract, Allen commenced his performance. In other words, the agreement made in 1920 did not then incur a liability but was simply an agreement under which a liability would be incurred in the future. See Hirst & Begley Linseed Co., 4 B. T. A. 1160. The petitioner seeks to draw an analogy between its case and the facts leading to our determinations in Producers Fuel Co., 1 B. T. A. 202; Raleigh Smokeless Fuel Co., 6 B. T. A. 381, and several similar decisions. In the proceedings mentioned the petitioner had in each instance breached a contract or contracts in the taxable year and upon the accrual system had set up reserves to meet liabilities incurred by reason of the breach. Settlements of such liabilities were effected in subsequent years and the petitioner claimed appropriate deductions for the year in which the breach occurred. We held the liabilities incurred upon the breach and that the deductions were properly claimed. The instant proceeding is distinguishable in that we hold no liability was incurred in the taxable year. The petitioner’s case is more nearly analogous to the facts in Jahncke Shipbuilding Co., 11 B. T. A. 479, cited by both parties, in which we held that unless the amount claimed as a deduction represented a liability either paid or incurred in the taxable year it was not allowable. In that proceeding it was found that the petitioner, taking cognizance of an anticipated expense, set up a reserve to cover the same. But in the taxable year it neither paid nor incurred the liability and consequently was denied the deduction claimed. In United States v. Anderson, 269 U. S. 422, the liability was likewise incurred in the taxable period for which the deduction was allowed. It follows that the respondent’s denial of the deduction of $4,294.92 as an expense properly accrued during the taxable period involved is approved. Judgment will be entered under Bule 50,

2020-12-03 22:01:45.509818+00

https://ecf.cofc.uscourts.gov/cgi-bin/show_public_doc?2020vv0128-24-0

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 20-128V UNPUBLISHED MICHAEL COOK, Chief Special Master Corcoran Petitioner, Filed: November 3, 2020 v. Special Processing Unit (SPU); SECRETARY OF HEALTH AND Ruling on Entitlement; Concession; HUMAN SERVICES, Table Injury; Influenza (Flu) Vaccine; Guillain-Barre Syndrome (GBS) Respondent. Leah VaSahnja Durant, Law Offices of Leah V. Durant, PLLC, Washington, DC, for petitioner. Adriana Ruth Teitel, U.S. Department of Justice, Washington, DC, for respondent. RULING ON ENTITLEMENT1 On February 4, 2020, Michael Cook filed a petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.2 (the “Vaccine Act”). Petitioner alleges that he suffered from Guillain-Barré syndrome (“GBS”) as a result of an influenza (“flu”) vaccine administered on November 7, 2018. Petition at 1. The case was assigned to the Special Processing Unit of the Office of Special Masters. On October 30, 2020, Respondent filed his Rule 4(c) report in which he concedes that Petitioner is entitled to compensation in this case. Respondent’s Rule 4(c) Report at 1. Specifically, Respondent states that “[P]etitioner has satisfied the criteria in the revised Vaccine Injury Table and the Qualifications and Aids to Interpretation, which affords 1 Because this unpublished ruling contains a reasoned explanation for the action in this case, I am required to post it on the United States Court of Federal Claims' website in accordance with the E-Government Act of 2002. 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of Electronic Government Services). This means the ruling will be available to anyone with access to the internet. In accordance with Vaccine Rule 18(b), Petitioner has 14 days to identify and move to redact medical or other information, the disclosure of which would constitute an unwarranted invasion of privacy. If, upon review, I agree that the identified material fits within this definition, I will redact such material from public access. 2 National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755 . Hereinafter, for ease of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa (2012). [P]etitioner a presumption of causation if onset of GBS occurs between three and forty- two days after receipt of a seasonal flu vaccination and there is no apparent alternative cause.” Id. at 7. Respondent further agrees that Petitioner experienced the residual effects of his GBS for more than six months. Id. In view of Respondent’s position and the evidence of record, I find that Petitioner is entitled to compensation. IT IS SO ORDERED. s/Brian H. Corcoran Brian H. Corcoran Chief Special Master 2

2020-12-03 22:01:46.871206+00

https://ecf.cofc.uscourts.gov/cgi-bin/show_public_doc?2018vv1915-44-0

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 18-1915V UNPUBLISHED ANITA ANDERSON, Chief Special Master Corcoran Petitioner, Filed: June 24, 2020 v. Special Processing Unit (SPU); Joint SECRETARY OF HEALTH AND Stipulation on Damages; HUMAN SERVICES, Pneumococcal Conjugate Vaccine; Shoulder Injury Related to Vaccine Respondent. Administration (SIRVA) Michael G. McLaren, Black McLaren Jones Ryland & Griffee, P.C., Memphis, TN, for petitioner. Voris Edward Johnson, U.S. Department of Justice, Washington, DC, for respondent. DECISION ON JOINT STIPULATION 1 On December 14, 2018, Anita Anderson filed a petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.2 (the “Vaccine Act”). Petitioner alleges that she suffered a right shoulder injury related to vaccine administration (“SIRVA”) from a pneumococcal conjugate vaccine, Prevnar 13, administered on October 17, 2017. Petition at 1; Stipulation, issued at June 24, 2020, ¶¶ 1-4. Petitioner further alleges that the vaccine was administered in the United States, she suffered the residual effects of her SIRVA for more than six months, and that there has been no prior award or settlement of a civil action for damages as a result of her condition. Petition at 1-3; Stipulation at ¶¶ 3-5. “Respondent denies that petitioner sustained a Table SIRVA within the Table timeframe, and denies that the Prevnar 13 vaccine in fact caused her alleged shoulder injury and residual effects, or any other injury.” Stipulation at ¶ 6. 1 Because this unpublished decision contains a reasoned explanation for the action in this case, I am required to post it on the United States Court of Federal Claims' website in accordance with the E- Government Act of 2002. 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of Electronic Government Services). This means the decision will be available to anyone with access to the internet. In accordance with Vaccine Rule 18(b), Petitioner has 14 days to identify and move to redact medical or other information, the disclosure of which would constitute an unwarranted invasion of privacy. If, upon review, I agree that the identified material fits within this definition, I will redact such material from public access. 2 National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755 . Hereinafter, for ease of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa (2012).  Nevertheless, on June 24, 2020, the parties filed the attached joint stipulation, stating that a decision should be entered awarding compensation. I find the stipulation reasonable and adopt it as my decision awarding damages, on the terms set forth therein. Pursuant to the terms stated in the attached Stipulation, I award the following compensation: A lump sum of $45,000.00 in the form of a check payable to Petitioner. Stipulation at ¶ 8. This amount represents compensation for all items of damages that would be available under § 15(a). Id. I approve the requested amount for Petitioner’s compensation. In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of the court is directed to enter judgment in accordance with this decision.3 IT IS SO ORDERED. s/Brian H. Corcoran Brian H. Corcoran Chief Special Master 3 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint filing of notice renouncing the right to seek review. 2

2020-12-03 22:03:45.088818+00

http://www.illinoiscourts.gov/Opinions/AppellateCourt/2020/1stDistrict/1191819.pdf

2020 IL App (1st) 191819 No. 1-19-1819 Opinion filed September 30, 2020 Modified upon denial of rehearing December 3, 2020 Fourth Division ______________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ______________________________________________________________________________ JAI PRAKASH, ) Appeal from the ) Circuit Court of Plaintiff-Appellant, ) Cook County. ) v. ) No. 18 L 8559 ) SATISH PARULEKAR, ) Honorable ) Moira S. Johnson, Defendant-Appellee. ) Judge, presiding. JUSTICE LAMPKIN delivered the judgment of the court, with opinion. Presiding Justice Gordon and Justice Reyes concurred in the judgment and opinion. OPINION ¶1 Plaintiff Jai Prakash appeals from an order of the circuit court of Cook County that dismissed with prejudice his two-count amended complaint, which alleged claims of intentional infliction of emotional distress (IIED) and defamation per se against defendant Satish Parulekar. ¶2 On appeal, plaintiff argues that he sufficiently pled his IIED and defamation claims, he did not release those claims in a settlement agreement with the university, and he produced clear and convincing evidence that defendant’s acts were not immunized from liability. No. 1-19-1819 ¶3 For the reasons that follow, we reverse the judgment of the circuit court. 1 ¶4 I. BACKGROUND ¶5 Plaintiff and defendant were both tenured professors of chemical engineering at Illinois Institute of Technology (IIT). In 2008, plaintiff eliminated the position of associate chair of the chemical and biological engineering department, which at the time was occupied by defendant. Later, in 2011, defendant became the department’s acting chair, and plaintiff reported to him. Also in 2011, plaintiff appointed a research professor who worked on plaintiff’s off-site research project. ¶6 According to plaintiff, defendant retaliated against him for eliminating the associate chair position by severely harassing plaintiff in 2011 and 2012. This alleged harassment included defendant, as the department chair, initiating in 2012 an investigation of plaintiff’s research projects. ¶7 In August 2013, IIT’s dean and a past provost removed defendant from the acting department chair position. On November 6, 2013, that past provost and IIT’s general counsel sent defendant emails that stated IIT, after a six-months-long investigation, found no misconduct by plaintiff. ¶8 Also on November 6, 2013, plaintiff entered into a settlement agreement with IIT to resolve several claims, including the unauthorized reduction of his salary and his proper actions concerning the appointment of the research professor. Under this agreement, plaintiff received $37,990.55 and other benefits and released IIT and its current and former employees from every 1 In adherence with the requirements of Illinois Supreme Court Rule 352(a) (eff. July 1, 2018), this appeal has been resolved without oral argument upon the entry of a separate written order. -2- No. 1-19-1819 waivable claim, damage and liability that he had as a result of any matter from the start of his employment with IIT through November 6, 2013, arising out of or based upon any act, omission or event which occurred or should have occurred prior to November 6, 2013, including, without limitation, any allegation of defamation, IIED, workplace harassment, retaliation, whistleblowing, invasion of privacy, and negligence or any other tort. ¶9 In February 2014, defendant made complaints to federal agencies and Argonne National Laboratory, plaintiff’s key research funding agency, raising the same allegations against plaintiff of fraud and criminal misuse of federal funds that defendant had raised in IIT’s 2012 investigation. Thereafter, Argonne National Laboratory discontinued plaintiff’s research project and federal agents conducted a comprehensive investigation, which included inspecting documents, interviewing administrators of IIT and Argonne National Laboratory, and interviewing plaintiff at his home. On February 21, 2014, IIT’s general counsel sent a litigation hold letter to IIT individuals, informing them that a federal agency was investigating plaintiff regarding his research projects. When the federal agency concluded its investigation, it found no wrongdoing by plaintiff. ¶ 10 On August 8, 2018, plaintiff filed a complaint against defendant, alleging claims of IIED and defamation per se and “seek[ing] redress for a prolonged pattern of misconduct *** spanning over seven (7) years.” ¶ 11 Defendant moved to dismiss the complaint under section 2-619.1 of the Code of Civil Procedure (Code) (735 ILCS 5/2-619.1 (West 2016)), arguing that (1) plaintiff’s pleading could not rely on any events before November 6, 2013, because his settlement agreement with IIT limited the time and scope of his claims, (2) any defamation claims before August 8, 2017 were barred as -3- No. 1-19-1819 outside the one-year statute of limitations, and (3) plaintiff’s alleged embarrassment was not sufficient to plead an IIED claim. ¶ 12 On March 7, 2019, the trial court granted the 2-615 portion of defendant’s motion to dismiss, reserved ruling on the 2-619 portion of the motion, and granted plaintiff leave to file an amended complaint. ¶ 13 Plaintiff’s amended complaint alleged against defendant (count I) a claim of IIED based on defendant’s pattern of egregious misconduct each year from 2011 to 2018, which was intended to destroy plaintiff’s research, projects and career, was extreme and outrageous and intended to inflict severe emotional distress, and caused plaintiff to suffer extreme emotional, mental, physical and financial distress. ¶ 14 Specifically, plaintiff alleged that defendant’s conduct before November 6, 2013 (the effective date of the settlement agreement) included making false statements and maliciously providing false information about plaintiff’s employment contracts and changing the contract language without justification or notice to reduce plaintiff’s $130,000 nine-month base salary to $118,755; harassing plaintiff by questioning his 2011 appointment of the research professor and falsely stating to IIT’s dean, officials, past provosts, counsel, faculty and others that plaintiff had engaged in fraudulent conduct and criminal activity by misusing federal funds when he appointed the research professor; initiating in 2012, pursuant to defendant’s authority as the department chair, a false, selective and retaliatory investigation by IIT of plaintiff’s research projects; sending to the home dean and colleagues of the appointed research professor malevolent emails that disclosed his private and confidential family information and caused him to resign from his position as a key member of plaintiff’s research group; and in May 2013 sharing with two IIT professors, who had -4- No. 1-19-1819 no role in and were unaware of IIT’s investigation of plaintiff, a confidential letter from a past provost to plaintiff that contained defamatory information about plaintiff regarding the investigation. ¶ 15 Furthermore, plaintiff alleged that defendant’s conduct after the November 2013 effective date of the settlement included knowingly making false complaints in February 2014 to federal agencies and Argonne National Laboratory that accused plaintiff of fraud and misusing federal funds when he appointed the research professor in 2011, despite defendant’s knowledge that IIT’s investigation had found no wrongdoing by plaintiff; in 2015 making false and defamatory statements about plaintiff to IIT faculty members who were not aware of IIT’s prior investigation of plaintiff; in February 2016 sending to 23 individuals a letter alleging that defendant had received an anonymous threat letter and alluding to the federal investigation of plaintiff; in August 2016 sending to 28 people a letter falsely accusing “individual C,” whom the letter recipients would understand to be plaintiff, of sending the anonymous threat letter to defendant, invading defendant’s home and accessing his computers; in 2017 falsely blaming plaintiff for sending defendant a letter; and sending 26 people an email on March 4, 2018, which stated that a federal agency was investigating federal grants awarded to an individual, and including attachments to ensure the recipients would identify plaintiff as the subject of the investigation. Plaintiff asserted that defendant’s false 2014 complaints to federal agencies resulted in federal agents interviewing plaintiff at his home for over one hour in front of his family, which was the most embarrassing, humiliating and traumatic event plaintiff or his family ever endured, destroyed plaintiff’s mental and physical health, and caused him to have recurring nightmares and seek medical help. -5- No. 1-19-1819 ¶ 16 Plaintiff also alleged against defendant (count II) a claim of defamation per se, based on false statements defendant made about plaintiff in defendant’s March 4, 2018 email and attached March 2, 2018 letter. Plaintiff alleged that this email imputed to him the commission of an indictable criminal offense, prejudiced him in his profession, and suggested that he lacked integrity in the performance or discharge of his employment duties. Furthermore, defendant published this correspondence to numerous third parties and caused plaintiff to suffer emotionally and financially. ¶ 17 Defendant moved to dismiss the amended complaint under section 2-619.1 of the Code, arguing plaintiff’s amended complaint should be dismissed under (1) section 2-619(a)(6) of the Code because his claims based on conduct before November 6, 2013 were released under the terms of his settlement agreement; (2) section 2-619(a)(9) of the Code (735 ILCS 5/2-619(a)(9) (West 2016)), because plaintiff’s attempt to sue defendant for reporting him to the federal government constituted retaliation against defendant for engaging in his right to petition the government, which was protected conduct under the Citizen Participation Act (Act) (735 ILCS 110/1, et seq. (West 2016)); and (3) section 2-615 of the Code because plaintiff failed to sufficiently plead a cause of action for IIED. ¶ 18 In his response, plaintiff argued that (1) he did not release any claims against defendant, who was neither a party to nor a third-party beneficiary of plaintiff’s settlement agreement with IIT; (2) the Act did not bar plaintiff’s claims because defendant’s defamatory statements to many people with no connection to the government were not protected, defendant did not intend to secure favorable government action but rather acted to harass plaintiff, and plaintiff’s complaint was filed years after defendant’s complained-of conduct and thus was not retaliatory; and (3) plaintiff -6- No. 1-19-1819 sufficiently pled his IIED claim against defendant, who had been the department chair, based on his position of power over plaintiff and pattern of misconduct every year from 2011 to 2018. ¶ 19 On August 14, 2019, the trial court granted defendant’s motion to dismiss the amended complaint with prejudice pursuant to section 2-619(a)(9) of the Code and the immunities afforded by the Act. Plaintiff appealed. ¶ 20 II. ANALYSIS ¶ 21 Section 2-619.1 of the Code “permits a party to combine a section 2-615 motion to dismiss based upon plaintiff’s substantially insufficient pleadings with a section 2-619 motion to dismiss based on certain defects or defenses.” Edelman, Combs & Latturner v. Hinshaw & Culbertson, 338 Ill. App. 3d 156 , 164 (2013). A section 2-615 motion to dismiss attacks the legal sufficiency of a complaint. Illinois Graphics Co. v. Nickum, 159 Ill. 2d 469 , 484 (1994). Illinois is a fact pleading state, and a court cannot rely upon conclusions of law or conclusory factual allegations unsupported by specific facts in ruling on a 2-615 motion to dismiss. Alpha School Bus Co. v. Wagner, 391 Ill. App. 3d 722 , 741 (2009). A section 2-619 motion “allows for involuntary dismissal of a claim based on certain defects or defenses.” Illinois Graphics Co., 159 Ill. 2d at 485 . A motion to dismiss pursuant to a release is brought under section 2-619(a)(6) (People ex rel. Devine v. Time Consumer Marketing, Inc., 336 Ill. App. 3d 74 , 78 (2002)), and a motion to dismiss based upon the Act is made pursuant to section 2-619(a)(9) (Sandholm v. Kueker, 2012 IL 111433 , ¶ 54). When ruling on section 2-615 and 2-619 motions, the court should view the pleadings and supporting documents in the light most favorable to the nonmoving party, while accepting as true all well-pleaded facts in the complaint and drawing all reasonable inferences in the nonmoving -7- No. 1-19-1819 party’s favor. Stein v. Krislov, 2013 IL App (1st) 113806 , ¶ 12; Reynolds v. Jimmy John’s Enterprise, LLC, 2013 IL App (4th) 120139 , ¶ 25. ¶ 22 This court reviews the dismissal of a complaint under sections 2-615 and 2-619 de novo. Dawson v. City of Genesco, 2018 IL App (3d) 170625 , ¶¶ 11, 17; see also Thomas v. Weatherguard Construction Co., Inc., 2015 IL App (1st) 142785 , ¶ 63 (de novo consideration means the appellate court performs the same analysis that a trial judge would perform). This court may affirm the circuit court’s dismissal of a complaint “on any basis supported by the record.” Dawson, 2018 IL App (3d) 170625 , ¶ 11. ¶ 23 A. The Effect of the 2013 Settlement Agreement ¶ 24 Defendant argues that plaintiff’s amended complaint was subject to dismissal under section 2-619(a)(6) of the Code because the settlement agreement between plaintiff and IIT prevented plaintiff from relying on any allegations of defendant’s conduct before the November 6, 2013 effective date of that agreement to support plaintiff’s claims of IIED and defamation. ¶ 25 “A release ‘is the abandonment of a claim to the person against whom the claim exists.’ ” Borsellino v. Putnam, 2011 IL App (1st) 102242 , ¶ 103. A release is governed by contract law and the language of the release should be given its plain meaning. Farmers Auto Insurance Association v. Wroblewski, 382 Ill. App. 3d 688 , 696-97 (2008). “Where the terms of a contractual release are clear and explicit, a reviewing court must enforce them as written.” Id. at 697. “The interpretation of a contract is subject to de novo review.” In re Liquidation of Lumbermens Mutual Casualty Co., 2018 IL App (1st) 171613 , ¶ 62. “[W]hen a motion to dismiss is based upon a release, the burden *** shifts to the plaintiff to sufficiently allege and prove that a material issue of fact exists that would invalidate the release.” Janowiak v. Tiesi, 402 Ill. App. 3d 997 , 1005 (2010). -8- No. 1-19-1819 ¶ 26 We described in detail above the relevant provisions of the 2013 settlement agreement between plaintiff and IIT, and our review of the plain terms of that agreement establishes that plaintiff released and fully discharged IIT and its current and past employees from all claims arising before November 6, 2013, including any claims for defamation and IIED. Defendant was an employee of IIT during the relevant time period, and defendant submitted an affidavit from an appropriate custodian of IIT’s records, who verified the authenticity of the copy of the 2013 settlement agreement contained in the record. Furthermore, even though the settlement agreement did not specifically name defendant as a third-party beneficiary, the agreement adequately defined a class of individual beneficiaries, i.e., current and past employees of IIT, of which defendant was clearly a member. See Crawford v. Belhaven Realty, LLC, 2018 IL App (1st) 170731 , ¶ 55 (a third party has rights under a contract if he is an intended beneficiary, i.e., someone whom the parties intended to directly benefit by the performance of the contract, and courts determine whether a third-party beneficiary is intended by considering the language of the contract and the circumstances surrounding its execution). Finally, because the settlement agreement is not ambiguous, we do not consider the emails from members of IIT, which plaintiff offered to support his claim that IIT indicated he could properly file these IIED and defamation claims against defendant. See Owens v. McDermott, Will & Emery, 316 Ill. App. 3d 340 , 344 (2000). ¶ 27 We conclude that plaintiff released all claims against defendant arising out of pre- November 6, 2013 conduct. Accordingly, we review the dismissal of plaintiff’s IIED and defamation claims absent any allegations of defendant’s conduct before that date. ¶ 28 Consequently, plaintiff’s IIED claim is limited to his allegations that defendant knowingly made false complaints to federal agencies and Argonne National Laboratory in February 2014 that -9- No. 1-19-1819 accused plaintiff of fraud and misusing federal funds when he appointed a research professor in 2011 to work on plaintiff’s off-site research project; based on defendant’s knowingly false complaints, a federal agency conducted a comprehensive investigation, which included two federal agents interviewing plaintiff for over one hour at his home in front of his family; that interview was the most embarrassing, humiliating and traumatic event plaintiff or his family ever endured; and that investigation and interview destroyed plaintiff’s mental and physical health and caused him to have recurring nightmares and seek medical help. ¶ 29 Also as part of his IIED claim, plaintiff alleged defendant engaged in a prolonged pattern of misconduct that included making false and defamatory statements about plaintiff in 2015 to IIT faculty who were not aware of IIT’s prior investigation of plaintiff; sending to 23 individuals in February 2016 a letter alleging that defendant had received an anonymous threat letter and alluding to the federal investigation of plaintiff; sending to 28 people in August 2016 a letter falsely accusing “individual C,” whom the letter recipients would understand to be plaintiff, of sending the anonymous threat letter to defendant, invading defendant’s home and accessing his computers; falsely blaming plaintiff in 2017 for sending defendant a letter; and sending 26 people an email on March 4, 2018, which stated that a federal agency was investigating federal grants awarded to an individual, and including attachments to ensure the recipients would identify plaintiff as the subject of the investigation. As a result of defendant’s prolonged pattern of misconduct, plaintiff suffered extreme emotional, mental, physical and financial distress. ¶ 30 Furthermore, plaintiff’s defamation per se claim is limited to his allegations that defendant sent an email on March 4, 2018, to numerous third parties both inside and outside of IIT; this email included a March 2, 2018 letter; defendant stated in these materials that the federal government - 10 - No. 1-19-1819 was investigating federal grants awarded to plaintiff; defendant implied in these materials, knowingly and falsely, that plaintiff was involved in embezzlement and a financial conspiracy to defraud the government; many of the third-party recipients of defendant’s March 2018 materials were not aware of IIT’s prior investigation of this matter, which had exonerated plaintiff of any wrong doing; the publication of defendant’s March 2018 materials prejudiced plaintiff in his profession and suggested he lacked integrity in the performance or discharge of his employment duties; and this publication caused plaintiff to suffer emotionally and financially. ¶ 31 B. Immunity Based on the Right to Petition the Government ¶ 32 Plaintiff argues the trial court erred when it dismissed with prejudice his IIED and defamation per se claims based on immunities afforded under the Act for the protected activity of petitioning the government to obtain favorable government action. ¶ 33 The Act was created as anti-SLAPP legislation. Sandholm, 2012 IL 111443 , ¶ 33. SLAPPs are lawsuits “ ‘aimed at preventing citizens from exercising their political rights or punishing those who have done so.’ ” Id. (quoting Wright Development Group, LLC v. Walsh, 238 Ill. 2d 620 , 630 (2010)). “Plaintiffs in SLAPP suits do not intend to win but rather to chill a defendant’s speech or protest activity and discourage opposition by others through delay, expense, and distraction.” Sandholm, 2012 IL 111443 , ¶ 34. “SLAPPs use the threat of money damages or the prospect of the cost of defending against the suits to silence citizen participation.” Wright Development Group, LLC, 238 Ill. 2d at 630 . “The purpose of the Act is to give relief, including monetary relief, to citizens who have been victimized by meritless, retaliatory SLAPP lawsuits because of their ‘act or acts’ made ‘in furtherance of the constitutional rights to petition, speech, association, and participation in government.’ ” Id. at 633 (quoting 735 ILCS 110/15 (West 2008)). A motion to - 11 - No. 1-19-1819 dismiss based on immunity under the Act is properly raised under section 2-619(a)(9) of the Code wherein the legal sufficiency of the plaintiff’s complaint is admitted, but the motion asserts that certain defects or defenses outside of the pleadings defeat the claim. Sandholm, 2012 IL 111443 , ¶ 55. ¶ 34 Plaintiff’s lawsuit may only be dismissed due to immunity under the Act if (1) the movant’s acts were in furtherance of his rights to petition, speak, associate, or otherwise participate in government to obtain favorable government action; (2) plaintiff’s claims were solely based on, related to, or in response to the movant’s acts in furtherance of his rights of petition, speech, association, or other participation in government (this prong is satisfied if the movant demonstrates that the lawsuit is meritless and was filed in retaliation of the movant’s protected activities to deter him from further engaging in those activities); and (3) plaintiff failed to produce clear and convincing evidence that the movant’s acts were not genuinely aimed at procuring favorable government action. 735 ILCS 110/15 (West 2016); Sandholm, 2012 IL 111443 , ¶¶ 45, 52, 56; Ryan v. Fox Television Stations, Inc., 2012 IL App (1st) 120005 , ¶ 21. If the movant meets his burden under the first two prongs of the analysis, the court must decide whether the plaintiff has met his burden under the third prong of the analysis. Stein v. Krislov, 2013 IL App (1st) 113806 , ¶ 25; 735 ILCS 110/ 10, 15 (West 2016). ¶ 35 If plaintiff’s claims genuinely sought relief for damages for the alleged IIED and defamation per se by defendant, the claims are not solely based on defendant’s rights of petition, speech, association, or participation in government (see Sandholm, 2012 IL 111443 , ¶ 45), and accordingly, “it is irrelevant whether the defendant[’s] actions were ‘genuinely aimed at procuring favorable government action, result or outcome.’ ” (id. ¶ 53 (quoting 735 ILCS 110/15 (West - 12 - No. 1-19-1819 2008))). The clear language of the Act establishes that it was not intended to protect those who commit tortious acts and then seek refuge in the immunity conferred by the Act. Sandholm, 2012 IL 111443 , ¶ 45. ¶ 36 Addressing plaintiff’s IIED claim first, we determine whether defendant’s complained-of actions after the November 6, 2013 release were protected under the Act by considering whether his actions were in furtherance of his constitutional rights of petition, speech, association, or participation in government to obtain favorable government action. Defendant’s complaints to federal agencies in February 2014 were made to government officials in an effort to obtain favorable government action by way of preventing plaintiff from allegedly misusing federal funds in the appointment of a research professor. See 735 ILCS 110/10 (West 2016); see also Hytel Group, Inc., v. Butler, 405 Ill. App. 3d 113 , 120 (2010). However, defendant’s alleged prolonged pattern of misconduct from 2015 to 2018—i.e., making false and defamatory statements about plaintiff to IIT faculty members who were unaware of IIT’s prior investigation of plaintiff and sending numerous people in 2016 and 2018 letters alluding to the federal investigation of plaintiff and falsely accusing him of sending defendant an anonymous threat letter, invading defendant’s home and accessing defendant’s computers—were not actions in furtherance of defendant’s right to petition or participate in government to obtain favorable government action. Defendant’s assertion to the contrary is not supported by citation to any relevant authority. U.S. Bank v. Lindsey, 397 Ill. App. 3d 437 , 459 (2009) (A reviewing court is not a repository into which a party may dump the burden of argument or research, and the failure to support an argument with pertinent authority results in forfeiture of the argument.). Defendant cannot credibly argue that his alleged conduct from 2015 to 2018 of sending correspondence to various non-government - 13 - No. 1-19-1819 people both inside and outside of IIT was an effort to obtain an investigation of plaintiff’s alleged misconduct because IIT in 2012 had already conducted its six-months-long investigation and exonerated plaintiff of any wrongdoing and defendant had already filed his complaints with the federal agencies in 2014. ¶ 37 Although defendant met his burden under the first prong of the analysis to obtain immunity under the Act for his complaints to federal agencies in 2014, he did not meet this burden for his alleged prolonged pattern of misconduct from 2015 to 2018 based on his false statements about plaintiff to people who were not members of a government agency. Furthermore, even if a movant’s activities were the kind that the Act is designed to protect, a plaintiff’s lawsuit is not necessarily deemed a SLAPP and therefore subject to dismissal under the Act. Stein, 2013 IL App (1st) 113806 , ¶ 16. ¶ 38 Under the second prong of the analysis, defendant has the burden to show that plaintiff’s IIED claim was solely based on, related to, or in response to defendant’s acts in furtherance of his right to petition the government. See Chicago Regional Council of Carpenters v. Jursich, 2013 IL App (1st) 113279 , ¶ 20. To satisfy this burden, defendant must affirmatively demonstrate that plaintiff’s suit was retaliatory and meritless. Garrido v. Arena, 2013 IL App (1st) 120466 , ¶ 18. To determine whether plaintiff’s IIED claim was retaliatory within the meaning of the Act, we consider (1) the proximity in time between the protected activity and the filing of the complaint, and (2) whether the damages requested are reasonably related to the facts alleged in the complaint and present a good-faith estimate of the injury sustained. See Ryan, 2012 IL App (1st) 120005 , ¶ 23. Furthermore, a movant “for dismissal under the Act can show that a claim is ‘meritless’ only ‘if a movant disproves some essential element of the nonmovant’s claim.’ ” Chadha v. North Park - 14 - No. 1-19-1819 Elementary School Association, 2018 IL App (1st) 171958 , ¶ 95 (quoting Garrido, 2013 IL App (1st) 120446 , ¶ 19). ¶ 39 Plaintiff filed his lawsuit on August 8, 2018, which was over four years after defendant made his February 2014 complaints to the federal agencies. In addition, plaintiff’s IIED claim was not intended to chill the protected activities to petition or participate in government because defendant had already participated in the protected activity of petitioning the government in February 2014, plaintiff had already been allegedly injured by defendant’s petitioning, and there was no basis for defendant to further petition the government and cause plaintiff further injury. See Chadha, 2018 IL App (1st) 171958 , ¶ 98. Furthermore, plaintiff, who seeks compensatory damages for his destroyed mental and physical health and extreme emotional and financial distress, does not seek millions of dollars in punitive damages like the classic SLAPP situation (see id. ¶ 99), and defendant fails to show that plaintiff’s ad damnum was unreasonable. ¶ 40 It was defendant’s burden to “show that there are undisputed facts that demonstrate plaintiff’s claim is meritless.” Ryan, 2012 IL App (1st) 120005 , ¶ 26. Because this court reviews a motion to dismiss under the Act pursuant to section 2-619 of the Code, we must presume the legal sufficiency of plaintiff’s IIED claim. Ryan, 2012 IL App (1st) 120005 , ¶ 22. A claim is meritless if the moving party disproves some essential element of the nonmovant’s claim. Garrido, 2013 IL App (1st) 120466 . Therefore, we may consider whether plaintiff has alleged sufficient facts to show the claim was genuine and not factually baseless. Sandholm, 2012 IL 111443 , ¶ 45; Garrido, 2013 IL App (1st) 120466 , ¶ 23. ¶ 41 Defendant argues that plaintiff’s IIED claim was meritless because his actions could never rise to the level of extreme and outrageous conduct as a matter of law since much of defendant’s - 15 - No. 1-19-1819 alleged misconduct was barred by the 2013 settlement agreement. As discussed above, we have determined that the settlement agreement released the alleged misconduct of defendant that occurred before November 6, 2013. Nevertheless, plaintiff has alleged that defendant, despite knowing that IIT’s investigation had exonerated plaintiff of any wrongdoing and after defendant had reported his complaints in 2014 to the federal agencies, engaged in a prolonged pattern of extreme and outrageous conduct from 2015 to 2018 by making false statements to numerous non- government people that accused plaintiff of, inter alia, fraud, misusing federal funds and threatening defendant, all of which caused plaintiff to suffer severe emotional distress. We find that defendant has failed to establish that plaintiff’s IIED claim was meritless and retaliatory. We therefore conclude that plaintiff’s IIED claim did not qualify as a SLAPP and the trial court erred in dismissing this claim with prejudice under the Act. ¶ 42 Regarding plaintiff’s defamation per se claim, defendant argues it also was based on his protected right to petition the government. According to the amended complaint and disregarding allegations about defendant’s activity before the November 6, 2013 effective date of the settlement agreement, plaintiff alleged defendant sent a March 4, 2018 email to numerous nongovernmental third parties both inside and outside of IIT; this email included a March 2, 2018 letter; defendant stated in these materials that the federal government was investigating federal grants awarded to plaintiff; defendant implied in these materials, knowingly and falsely, that plaintiff was involved in embezzlement and a financial conspiracy to defraud the government; many of the third-party recipients of defendant’s March 2018 materials were not aware of IIT’s prior investigation of this matter, which had concluded that plaintiff had not engaged in any wrongdoing; the publication of defendant’s March 2018 materials prejudiced plaintiff in his profession and suggested he lacked - 16 - No. 1-19-1819 integrity in the performance or discharge of his employment duties; and this publication caused plaintiff to suffer emotionally and financially by impugning his integrity and affecting his career. ¶ 43 Taking all well-pled facts as true, drawing reasonable inferences in favor of plaintiff, and viewing the pleading in a light most favorable to plaintiff, we conclude that plaintiff’s defamation claim was not meritless where defendant failed to satisfy his burden under the first and second prongs of the Act’s immunity analysis. Specifically, defendant was not acting to further his right to petition or otherwise participate in government to obtain favorable government action because he had already filed his complaints with the federal agencies in 2014 when he sent his email and attached letter in March 2018 to numerous people who were not affiliated with any government agency. Furthermore, plaintiff’s defamation claim was not solely based on defendant’s acts in furtherance of his right of petition or other participation in government because the lawsuit was filed over four years after defendant filed his complaints with the federal agencies and defendant has not offered any evidence to show that plaintiff’s defamation claim lacked merit. The well-pled allegations of the amended complaint show that IIT’s six-months-long investigation in 2012 of plaintiff’s conduct, including his use of federal funds for his research projects, concluded that he did not engage in any wrongdoing. Furthermore, there is no indication that defendant’s complaints to federal agencies in 2014 about plaintiff’s alleged misuse of federal funds, embezzlement and financial conspiracy to defraud the government resulted in any findings or actions against plaintiff. ¶ 44 We, therefore, conclude that plaintiff’s defamation claim does not qualify as a SLAPP and the trial court erred in dismissing this claim with prejudice under the Act. - 17 - No. 1-19-1819 ¶ 45 C. Failure to State a Cause of Action ¶ 46 Finally, defendant argues that even if dismissal of the amended complaint was improper under subsections 2-619(a)(6) or (a)(9) of the Code, dismissal is proper under section 2-615 based on plaintiff’s failure to state a cause of action for IIED and defamation. Specifically, defendant argues that (1) he did not have a position of power or authority over plaintiff because he was not the department chair at the time of the alleged conduct from 2014 to 2018, (2) the alleged conduct did not constitute extreme and outrageous behavior, and (3) the six alleged incidents that occurred from 2014 to 2018 fall far short of the type of conduct Illinois courts have found actionable for claims of IIED. ¶ 47 To state a cause of action for IIED, a plaintiff must plead that (1) the defendant’s conduct was extreme and outrageous, (2) the emotional distress suffered by the plaintiff was severe, and (3) the defendant knew that severe emotional distress was certain or substantially certain to result from such conduct. Miller v. The Equitable Life Assurance Society of the United States, 181 Ill. App. 3d 954 , 956 (1989). “ ‘The law intervenes only where the distress inflicted is so severe that no reasonable man could be expected to endure it.’ ” McGrath v. Fahey, 126 Ill. 2d 78 , 86 (1988) (quoting Restatement (Second) of Torts § 46, comment j, at 77-78 (1965)). “[T]he tort does not extend to ‘mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities.’ ” Id. (quoting Restatement (Second) of Torts § 46, comment d, at 73 (1965)). Factors courts may consider to determine whether a defendant’s conduct is extreme and outrageous include the intensity and duration of the distress, defendant’s degree of power or authority over the plaintiff, defendant’s abuse of a position that gives him actual or apparent power to damage the plaintiff’s interests, whether defendant reasonably believed that his objective was legitimate, and defendant’s - 18 - No. 1-19-1819 awareness that the plaintiff is susceptible to emotional distress by reason of some physical or mental condition or peculiarity. McGrath, 126 Ill. 2d at 86-90 . ¶ 48 Stripped of all allegations of conduct before November 6, 2013 concerning released claims, and accepting all well-pleaded facts as true, the count I IIED claim of the amended complaint essentially alleged that for approximately five years defendant intentionally and knowingly made false statements about plaintiff engaging in fraudulent and criminal activity by (1) making false statements to federal agencies and Argonne National Laboratory in 2014 that accused plaintiff of misusing federal funds despite defendant’s knowledge that IIT had exonerated plaintiff after conducting a thorough investigation of this same claim; (2) making false and defamatory statements about plaintiff in 2015 to IIT faculty who were not aware of IIT’s prior investigation and exoneration of plaintiff; (3) sending to 23 individuals in February 2016 a letter alleging that defendant had received an anonymous threat letter and alluding to the federal investigation of plaintiff; (4) sending to 28 people in August 2016 a letter falsely accusing “individual C,” whom the letter recipients would understand to be plaintiff, of sending the anonymous threat letter to defendant, invading defendant’s home and accessing his computers; (5) falsely blaming plaintiff in 2017 for sending defendant a letter; and (6) sending 26 people an email on March 4, 2018, which stated that a federal agency was investigating federal grants awarded to an individual, and including attachments to ensure the recipients would identify plaintiff as the subject of the investigation. Plaintiff alleged that as a result of defendant’s prolonged pattern of misconduct, plaintiff suffered extreme emotional, mental, physical and financial distress. ¶ 49 Regarding the question of the outrageousness of defendant’s conduct, defendant argues that plaintiff’s six alleged incidents that occurred from 2014 to 2018 fall far short of the type of - 19 - No. 1-19-1819 conduct Illinois courts have found actionable for IIED claims. Defendant cites, for example, Miller v. Linden, 172 Ill. App. 3d 594 , 597 (1988), where the plaintiff’s complaint stated an IIED cause of action based on allegations that the defendant went to the plaintiff’s residence on 13 separate occasions over a 10-month period and engaged in a variety of harassing conduct that ranged from beating on the door and shouting obscenities to honking her car horn for several minutes— sometimes in the presence of the plaintiff’s family and neighbors—and continuing to do so even after being warned by the plaintiff’s attorney about the plaintiff’s physical and emotional distress. ¶ 50 We conclude that the amended complaint alleged sufficient facts, well beyond mere insults and trivialities, to allege the outrageous conduct element of the tort. The alleged misconduct intensely attacked plaintiff’s professional integrity and career for a lengthy duration of five years. Although defendant was not the department chair at the time of the alleged misconduct, he abused his position as a tenured professor to damage plaintiff’s reputation and career by using the same false accusations defendant made in 2012 during his tenure as the department chair and broadly publishing those accusations to IIT administration and faculty members and numerous other people in the larger academic and business communities who did not know that IIT’s investigation had exonerated plaintiff. Furthermore, based on IIT’s exoneration of plaintiff, defendant did not reasonably believe his objective was legitimate. A reasonable trier of fact could easily conclude that defendant’s alleged conduct was so outrageous as to be regarded as intolerable in a civilized community. ¶ 51 Additionally, plaintiff pled sufficient facts to demonstrate that he suffered severe emotional, mental, physical and financial distress as a result of defendant’s conduct. According to the amended complaint, in every year from 2014 to 2018, defendant knowingly used false - 20 - No. 1-19-1819 allegations to attack plaintiff’s integrity, reputation, research projects, and career and caused him to lose financial support for his research. Plaintiff alleged that defendant’s prolonged and pervasive attacks caused plaintiff financial distress, destroyed his mental and physical health, and caused him to have recurring nightmares and seek medical help. These allegations, if proved, establish the severe emotional distress necessary to the tort. ¶ 52 Regarding whether defendant acted intentionally or with the knowledge that severe emotional distress was certain or substantially certain to result, the allegations support this element of the tort. Defendant knew that IIT’s six-months-long investigation in 2012 had exonerated plaintiff of any wrongdoing regarding defendant’s claims that plaintiff had engaged in fraud and the criminal misuse of federal funds. Nevertheless, defendant, in addition to filing complaints with federal agencies in 2014 regarding these same claims, continued making these false claims to IIT faculty, Argonne National Laboratory and numerous other people for several years. Furthermore, defendant knew that his false claims had adversely affected plaintiff’s work and resulted in federal agents conducting a comprehensive review of plaintiff’s projects, which included interviews with plaintiff and faculty and administration at IIT and Argonne National Laboratory. Moreover, defendant continued publishing his false allegations to numerous people inside and outside of IIT. Such allegations sufficiently demonstrate that defendant intended or at least knew with reasonable certainty that his conduct would damage plaintiff’s reputation, research, and career and cause him to suffer severe emotional distress. ¶ 53 Defendant argues that plaintiff’s IIED claim does not rise to the level of intensity or duration that no reasonable person could be expected to endure because Illinois courts have found conduct far more egregious than that alleged by plaintiff here to be non-actionable. To support this - 21 - No. 1-19-1819 claim, defendant cites Ulm v. Memorial Medical Center, 2012 IL App (4th) 110421 , ¶ 42, Vickers v. Abbot Labs, 308 Ill. App. 3d 393 , 411 (1999), Lundy v. City of Calumet City, 209 Ill. App. 3d 790 , 794 (1991), Grey v. First National Bank of Chicago, 169 Ill. App. 3d 936 , 945 (1988), and Gibson v. Chemical Card Services Corp, 157 Ill. App. 3d 2211 , 213 (1987). Defendant’s reliance on these cases is misplaced. Ulm, Vickers, Lundy, Grey and Gibson are distinguishable because those IIED claims were dismissed under motions for summary judgment, not 2-615 motions to dismiss. ¶ 54 Plaintiff’s specific pleading of defendant’s many acts toward him, as detailed above, indicates, at this pleading stage of the proceedings, extreme and outrageous conduct going beyond mere indignities, annoyances or trivialities, as well as severe emotional distress suffered by plaintiff and an intentional or reckless state of mind on the part of defendant. Accepting the allegations in count I as true, we conclude that plaintiff’s amended complaint adequately states a cause of action for IIED. ¶ 55 To state a cause of action for defamation, the plaintiff must allege that (1) the defendant made a false statement about the plaintiff, (2) the defendant made an unprivileged publication of that statement to a third party, and (3) the publication caused damages. Kainrath v. Grider, 2018 IL App (1st) 172770 , ¶ 32. Relevant to this case, words that impute a person has committed a crime or lacks integrity in performing his employment duties and words that prejudice him in his profession are considered defamation per se (Goral v. Kulys, 2014 IL App (1st) 133236 , ¶ 41), i.e., so obviously and materially harmful to the plaintiff that injury to his reputation may be presumed (Barry Harlem Corp. v. Kraff, 273 Ill. App. 3d 388 , 390 (1995)). “A complaint for defamation - 22 - No. 1-19-1819 must set forth the words alleged to be defamatory ‘clearly and with particularity.’ ” Green v. Rogers, 234 Ill. 2d 478 , 495 (2009). ¶ 56 Stripped of all allegations of conduct before November 6, 2013 concerning released claims, and accepting all well-pleaded facts as true, count II of the complaint essentially alleges that defendant sent an email on March 4, 2018 to numerous third parties both inside and outside of IIT; this email included a March 2, 2018 letter; defendant stated in these materials that the federal government was investigating federal grants awarded to plaintiff; defendant implied in these materials, knowingly and falsely, that plaintiff was involved in embezzlement and a financial conspiracy to defraud the government; many of the third-party recipients of defendant’s March 2018 materials were not aware of IIT’s prior investigation of this matter, which had concluded that plaintiff had not engaged in any wrong doing; the publication of defendant’s March 2018 materials prejudiced plaintiff in his profession and suggested he lacked integrity in the performance or discharge of his employment duties; and this publication caused plaintiff to suffer emotionally and financially. ¶ 57 Many of these allegations set forth only a summary of the types of statements that defendant allegedly made instead of a precise and particular account of defendant’s alleged statements. This lack of specificity prevents the court from determining as a question of law if the alleged statement is defamatory and prevents defendant from properly formulating a response. See Green, 234 Ill. 2d at 492 . However, the record before us does not indicate that plaintiff would not be able to allege these facts with the requisite specificity to state a cause of action sufficient to survive a 2-615 motion to dismiss. RBS Citizens, N.A. v. RTG-Oak Lawn, 407 Ill. App. 3d 183 , 192 (2011). Furthermore, allowing plaintiff leave to amend his defamation claim a second time - 23 - No. 1-19-1819 would not be futile or prejudicial to defendant where the trial court did not dismiss with prejudice the amended complaint based on a failure to plead a claim under 2-615 of the Code but, rather, based on an erroneous application of the Act under section 2-619 of the Code. ¶ 58 III. CONCLUSION ¶ 59 For the foregoing reasons, we reverse the judgment of the circuit court that dismissed with prejudice plaintiff’s IIED and defamation claims based on immunity afforded under the Act for the protected activity of petitioning the government. We also reject defendant’s assertion that section 2-615 of the Code provides another basis to dismiss plaintiff’s IIED and defamation claims with prejudice. We remand this cause to the circuit court for further proceedings consistent with this decision. ¶ 60 Reversed and remanded. - 24 - No. 1-19-1819 No. 1-19-1819 Cite as: Prakash v. Parulekar, 2020 IL App (1st) 191819 Decision Under Review: Appeal from the Circuit Court of Cook County, No. 18-L-8559; the Hon. Moira S. Johnson, Judge, presiding. Attorneys Robert T. Kuehl, of Kuehl Law, P.C., of Chicago, for appellant. for Appellant: Attorneys William T. Eveland and Elizabeth A. Thompson, of Saul Ewing for Arnstein & Lehr LLP, of Chicago, for appellee. Appellee: - 25 -

2020-12-03 22:03:45.933373+00

http://www.illinoiscourts.gov/Opinions/AppellateCourt/2020/1stDistrict/1191384.pdf

2020 IL App (1st) 191384 No. 1-19-1384 Opinion filed December 3, 2020 FOURTH DIVISION IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court ILLINOIS, ) of Cook County. ) Plaintiff-Appellee, ) ) v. ) No. 17 CR 4286 ) JASON VAN DYKE, ) The Honorable ) Vincent M. Gaughan, Defendant, ) Judge, presiding. ) (Chicago Public Media, Inc., WLS ) Television, Inc.; WFLD Fox 32 Chicago, ) WGN Continental Broadcasting Company, ) Chicago Tribune Company, L.L.C., and ) Sun-Times Media, L.L.C., Intervenors- ) Appellants). ) PRESIDING JUSTICE GORDON delivered the judgment of the court, with opinion. Justices Hall and Lavin concurred in the judgment and opinion. OPINION ¶1 This appeal involves the denial of access to the media in a criminal case. In the highly publicized criminal case of People v. Jason Van Dyke, the trial court entered an “interim decorum order” to manage trial publicity and the media to ensure that defendant Van Dyke received a fair trial. The criminal defendant is not a party to the instant appeal.  No. 1-19-1384 ¶2 Appellants Chicago Public Media, Inc.; WLS Television, Inc.; WFLD Fox 32 Chicago; WGN Continental Broadcasting Company; Chicago Tribune Company, L.L.C.; and Sun- Times Media, L.L.C. are not appealing the entry of the trial court’s interim decorum order in this case—nor could they, since they previously moved to vacate only a modification of that order, and our supreme court swiftly granted their relief within 12 days after they requested a supervisory order. ¶3 The order appealed from in this case was entered posttrial, and it ordered certain documents to remain under seal. Three months after its entry and two months after this appeal was filed, the trial court ordered the 18 remaining sealed documents to be released with some redactions. However, the media appellants claim that the trial court lacked jurisdiction to grant any relief at this time. ¶4 For the following reasons we dismiss a part of this appeal for lack of jurisdiction, and we affirm in part. ¶5 BACKGROUND ¶6 This case stems from the shooting death of 17-year old Laquan McDonald by Chicago police officer Jason Van Dyke on October 20, 2014. Defendant Van Dyke was charged on November 24, 2015, with first degree murder and official misconduct. ¶7 On January 20, 2016, the trial court issued, without objection, an “Interim Decorum Order” that provided, in full: “It is the Order of this court that no attorney connected with this case as Prosecutor or Defense Counsel, nor any other attorney working in or with the offices of either of them, nor their agents, staff, or experts, nor any judicial officer or court employee, nor 2 No. 1-19-1384 any law enforcement employee of any agency involved in this case, nor any persons subpoenaed or expected to testify in this matter, shall do any of the following: 1. Release or authorize the release for public dissemination any purported extrajudicial statement of either the defendant or witnesses relating to this case; 2. Release or authorize the release of any documents, exhibits, photographs or any evidence, the admissibility of which may have to be determined by the Court; 3. Make any statement for public dissemination as to the existence or possible existence of any documents, exhibits, photographs or any evidence, the admissibility of which may have to be determined by the Court; 4. Express outside of court an opinion or make any comment of public dissemination as to the weight, value, or effect of any evidence as tending to establish guilt or innocence; 5. Make any statement outside of court as to the content, nature, substance, or effect of any statements or testimony that is expected to be given in any proceedings in or relating to this matter; 6. Make any out-of-court statement as to the nature, source or effect of any purported evidence alleged to have been accumulated as a result of the investigation of this matter. 7. This Decorum Order also incorporates Article VIII. Illinois Rules of Professional Conduct, effective January 1, 2010. This Order does not include any of the following: 1. Quotations from, or any reference without comment to, public records of the Court in the case. 3  No. 1-19-1384 2. The scheduling and result of any stage of the judicial proceedings held in open court in an open or public session. 3. Any witness may discuss any matter with any Prosecution or Defense Attorney in this action, or any agent thereof, and if represented may discuss any matter with his or her own attorney. Anyone in violation of this court order may be subject to contempt of court.” ¶8 On February 3, 2017, the trial court modified the interim decorum order with an order that stated, in full: “To be in compliance with the decorum order entered January 20, 2016: IT IS HEREBY ORDERED that any documents or pleadings filed in this matter are to be filed in room 500 of the George N. Leighton Criminal Courthouse only. This order applies to the defense, special prosecutor, and any other party that may occasionally become involved in these proceedings. This procedure will remain in effect unless and until otherwise ordered by the court.” ¶9 On March 8, 2018, the media appellants were granted leave to intervene in the Van Dyke case. ¶ 10 On May 11, 2018, they moved for a supervisory order in the Illinois Supreme Court to vacate the February 3, 2017, order. The media appellants’ proposed supervisory order asked for the following relief: “(1) That the February 2017 Decorum Order is vacated; (2) That going forward, all motions, briefs, pleadings, and other judicial documents in this case shall be filed publicly in the Circuit Court Clerk’s Office, subject to any properly supported motion to seal; and 4  No. 1-19-1384 (3) That in ruling on any such future motion to seal judicial records, or any motion to reconsider [the trial court’s] earlier sealing of any previously filed judicial records, [the trial court] shall adhere to the governing First Amendment standards and enter specific, on-the-record judicial findings supporting suppression under those standards, or release such records in whole or in part, consistent with consideration of the least restrictive alternatives to complete suppression.” ¶ 11 Twelve days after the media appellants filed their motion, our supreme court “[a]llowed” it and issued a supervisory order on May 23, 2018, that stated, in full: “This cause coming to be heard on the motion of movants, Chicago Public Media, Inc., et al, due notice having been given to respondent, and the Court being fully advised in the premises: IT IS ORDERED: Motion by Movants for a supervisory order. Allowed. The Circuit Court of Cook County is directed to vacate its February 3, 2017, order, directing that all documents and pleadings shall be filed in Room 500 of the George N. Leighton Criminal Courthouse only. All documents and pleadings shall be filed in the circuit clerk’s office. The parties may move to file any document under seal.” Chicago Public. Media, Inc. v. Hon. Vincent M. Gaughan, No. 123569 (Ill. May 23, 2018). ¶ 12 On May 24, 2018, the trial court entered an order (1) vacating its February 3, 2017, order; (2) requiring all filings to be made with the clerk of the court, with courtesy copies provided to the trial court on the same day; and (3) requiring a “filing party” to “first notify the opposing party of its intention” to file a document and “the nature of the document” to be filed in order “to afford the other party fair opportunity to request the document be sealed.” 5  No. 1-19-1384 ¶ 13 On August 7, 2018, the media appellants moved the supreme court again for a supervisory order, this time asking for an order directing the trial court (1) to unseal 35 documents sealed prior to the supreme court’s May 23, 2018, supervisory order, unless the parties filed new and publicly filed motions to seal these documents, and (2) to vacate the trial court’s May 24, 2018, order and require the public filing of all future requests under seal. On September 12, 2018, the supreme court issued an order stating that the media appellants’ “motion for supervisory order is dismissed.” 1 ¶ 14 Defendant Van Dyke’s jury trial began on September 17, 2018, and his jury returned a verdict on October 5, 2018, finding him guilty of second-degree murder and aggravated battery with a firearm. ¶ 15 On October 26, 2018, the media appellants filed a motion titled a “Post-Trial Motion to Unseal Court Records,” seeking to unseal court records then under seal and citing in support the Illinois Supreme Court’s recent decision on October 18, 2018, in People v. Zimmerman, 2018 IL 122261 (denying media intervenors access to pretrial motions in a criminal case). Specifically, the media appellants sought the release of 99 documents, which they described on an attached list. To the extent that any records contained any sensitive information, the media appellants argued that they should be redacted. On January 14, 2019, the trial court continued the media appellants’ motion for unsealing until after sentencing. Defendant Van Dyke was sentenced on January 18, 2019, and he filed a notice of appeal on February 8, 2019. 2 1 The order explained: “In this case, two Justices of this Court have recused themselves and the remaining members of the Court are divided so that it is not possible to secure the constitutionally required concurrence of four judges for a decision (Ill. Const. 1970, art. IV, sec. 3).” Chicago Public Media, Inc. v. Hon. Vincent M. Gaughan, No. 123880 (Ill. Sept. 12, 2018). 2 On September 29, 2020, defendant Van Dyke moved to dismiss his appeal, which this court granted on October 9, 2020. People v. Van Dyke, No. 1-19-0398 (Oct. 9, 2020). 6  No. 1-19-1384 ¶ 16 On February 28, 2019, Brandon Smith filed a motion as a “third-party journalist,”3 seeking to intervene and to modify the 2016 interim decorum order, in order to permit the release of certain documents by the Chicago Police Department. The department had denied part of his Freedom of Information Act (FOIA) request based on the 2016 order. See 5 ILCS 140/1 et seq. (West 2018). On March 8, 2019, the media appellants filed a four-paragraph document stating that they “hereby join in” Smith’s motion. In their concluding paragraph, they stated that they “seek the relief requested by Mr. Smith” and “adopt his arguments in support thereof.” ¶ 17 On March 15, 2019, the media appellants filed a “Status Report Regarding [Their] Posttrial Motion to Unseal” which stated that the trial court had previously asked the State, defendant, and the media appellants to meet in order to reach an agreement on what documents should be released. That effort was largely successful, and the media appellants reported that neither the defense nor the State objected to the release of 87 court records and 2 transcripts and that only 21 records remained under dispute. ¶ 18 On April 5, 2019, the media appellants filed a proposed agreed order “Regarding [Their] Post-Trial Motion to Unseal Court Records.” The proposed order stated that “[t]his matter” was “coming to be heard” on the media appellants’ “Post-Trial Motion to Unseal Court Records” and was entered “by agreement” among the State, defendant Van Dyke, and the media appellants. In the order, the media appellants sought the release of 87 documents, as well as the transcripts, “including sidebar deliberations,” of a May 10, 2018, hearing and “all 3 Smith’s motion did not identify a journal or an employer. According to his alma mater, Columbia College, he was a freelance journalist at the time. Jeremy Borden, How a Little Known, Uber-driving Freelancer Brought the Lawsuit that Forced Chicago to Release a Police Shooting Video, Colum. Journalism Rev. (Nov. 25, 2015), https://www.cjr.org/united_states_project/brandon smith_chicago_ police_laquan_mcdonald.php [https://perma.cc/F5RU-3QZZ]. 7  No. 1-19-1384 trial proceedings.” On April 10, 2019, the trial court granted the proposed order in its entirety, adding only details about copying charges and that production in “10 days” meant “10 business days.” ¶ 19 At a hearing on April 10, 2019, the parties discussed the remaining 21 documents in dispute, and the media appellants’ attorney repeatedly asked the court to consider redacting them to permit release. The State objected to the release because the documents contained grand jury material and information concerning the juvenile victim, Laquan McDonald. When the court agreed with the State, the media appellants’ attorney asked: “Would you please reconsider and consider redacting the grand jury information[?]” The media appellants argued that “the least restrictive means would warrant redactions if there’s a reference to grand jury material.” ¶ 20 On April 10, 2019, the trial court also entered an order (1) that denied Smith’s motion to intervene and to modify the interim decorum order, (2) that modified the decorum order to permit city employees to answer certain questions about their e-mails and texts regarding the Laquan McDonald shooting, as Smith had requested, and (3) that denied the media appellants’ motion to modify to the extent that they had joined in Smith’s motion. Regarding the last item, the trial court stated at the hearing: “your motion to join is denied. How can they join anything that doesn’t exist?” Smith’s attorney and the trial court then had the following exchange: “MR. TOPIC: I guess the question would there be—and I don’t know whether they would do this. Would it be moot for them to file the same motion that we filed because you went through the merits of it, and so I get the sense— THE COURT: Well, then they can file that. And we’ll hear it at some time later on down the road, maybe.” 8  No. 1-19-1384 However, at this point in time, the trial court ruled that the media appellants “joined in a nullity,” since the court did not allow Smith to intervene. To Smith, the trial court stated: “I’m not ruling on your motion [to vacate] because it’s not before me because I denied your right to intervene.” To the media appellants’ counsel, the trial court stated that their motion “[g]oes down with his motion to intervene.” ¶ 21 On May 9, 2019, the media appellants moved the trial court “to reconsider or clarify its April 10, 2019[,] denial of [the media appellants’] request, through their joinder in a motion by would-be intervenor Brandon Smith, to modify the January 20, 2016,” order, on the ground that the order was being used by the city and the Chicago Police Department as a ground for withholding documents from FOIA requests. As part of its motion to reconsider, the media appellants asked the court to vacate the 2016 order or, “at a minimum,” modify it to state that it is not a basis for third parties to withhold documents. ¶ 22 On May 23, 2019, the trial court entered a written order regarding “the Post-Trial Motion of [the media appellants] for access to certain materials.” The order, which indicated that it had been prepared by the media appellants’ counsel, stated that the trial court had previously granted access to “certain agreed-upon materials,” that “[t]here remained 21” documents “that were the subject” of objections by the State, that a list of those 21 documents was attached to the order, and that “Document Nos. 1 through 17 and Document No. 20” were to remain under seal. At the hearing on May 23, 2019, the media appellants had withdrawn their request to unseal documents 18, 19, and 21, which concerned United States Department of Justice (DOJ) employees. With respect to these three documents, the order directed the special prosecutor to request them from DOJ. 9  No. 1-19-1384 ¶ 23 At the May 23 hearing, the media appellants’ attorney again suggested redacting the 18 documents so that they could be released: “APPELLANTS’ ATTORNEY: Before court this morning, [the special prosecutor] told me that he was prepared to make redactions and tender to the Court redacted versions of some of the materials relating to the motions to dismiss the indictment based on alleged misconduct ***. And it’s actually what I suggested back on April 10th *** And we favor going forward with a redaction process to see if we can avoid an appeal under those issues.” These 18 documents included documents concerning defendant Van Dyke’s motions to dismiss the indictment based on misconduct (dismissal documents). With respect to these dismissal documents, the special prosecutor explained how he had redacted information that was not subject to disclosure: “SPECIAL PROSECUTOR: What I have done since April 10th is gone through those documents and redacted any reference to Grand Jury testimony. In one of those documents there is a complete transcript of the Grand Jury proceedings attached[. I am] proposing that that is removed. The identity of any witnesses or anyone who appeared before the Grand Jury, to redact all of that information in a way to kind of compromise. What would remain in those documents would be allegations that were made by the defense in the motions to dismiss. *** [O]ne proposed resolution would be to redact identities, actual quotations from Grand Jury testimony, summaries and inferences drawn from the testimony before the Grand Jury. *** So that’s what I discussed with [the media appellants’ attorney] before court this morning.” 10  No. 1-19-1384 The special prosecutor argued that that the trial court had previously found that “there was not a scintilla of evidence to support the allegations” that defendant Van Dyke had made in these documents and, thus, no reason to keep them sealed. ¶ 24 Defendant Van Dyke’s attorney objected to what the State said, and the trial court replied: “Maybe you should take that up on appeal on Mr. Van Dyke’s case.” The trial court then found that its sealing order would stand. It is these 8 documents, later released in the redacted form described above, that are at issue on appeal. ¶ 25 Also at the May 23, 2019, hearing, the trial court orally found, with respect to the media appellants’ motion to reconsider, that, once the court had denied Smith’s motion 4 to intervene, there was nothing for the media appellants to join and, thus, the media appellants’ joinder motion “fell with his motion.” The court explained that it had entered an order giving Smith “all [he] wanted” and, “if he’s done, you’re done.” When the media appellants argued, pursuant to their motion to reconsider, that the court should vacate the 2016 interim decorum order, the special prosecutor responded: “But there was no motion by Counsel to vacate the decorum order that was before this court on April 10th, *** [o]nce [the trial court] denied [Smith’s motion to intervene.” The special prosecutor argued that, since there had been “no new filing” by the media appellants, “other than a motion to reconsider what was denied on April 10th,” there was no motion for the court now to resolve. The trial judge agreed that this was his “interpretation” and “now you can’t file. All right. That’s it.” The court found: “your motion to litigate—I mean to vacate the decorum order is denied, and I’m setting it nunc pro tunc to 4 During the hearing, the parties referred to Smith’s motion as “Topic’s” motion. Matthew Topic was Smith’s attorney. 11  No. 1-19-1384 the other ruling.” The media appellants did not object to the court’s nunc pro tunc order, entering the denial as of April 10, 2019. ¶ 26 When the trial court inquired if there was anything else, the media appellants replied: “We’d like a final order.” The State responded that it felt like they were “repeating” themselves, and the court agreed. The media appellants repeated “all we want is a final order.” The trial court stated orally in court: “Here is my final order, all right, denied. That’s it.” When the media appellants’ attorney asked the trial court, “[s]o we’re done with you?” the court replied: “Never.” The media appellants’ attorney persisted, stating that he “just want[ed] clarity in the record that there [were] no issues left” from the media appellants, and the trial court agreed. ¶ 27 On June 21, 2019, the media appellants filed a notice of appeal alleging that the trial court’s May 23, 2019, “order” was a final order, since it “resolv[ed] all pending matters raised by Intervenors-Appellants in the above captioned [Van Dyke] case.” The media appellants stated that they were appealing the trial court’s May 23, 2019, order and “all matters [that] merged into the May 23 Final Order, including: (1) the April 10, 2019[,] Order denying [the media appellants’] motion to modify the Decorum Order, and (2) the Decorum Order entered on January 20, 2016).” The notice alleged that this court had jurisdiction “[p]ursuant to Illinois Supreme Court Rule 303, or if deemed appropriate, Rule 307(a) and/or Rule 605.” ¶ 28 On July 2, 2019, Smith moved again to intervene and also for an in camera inspection of four documents being withheld by the Chicago Police Department from a FOIA response, on the basis of the trial court’s 2016 interim decorum order. Smith had filed suit in chancery court against the Chicago Police Department challenging its FOIA response to him. Smith v. Chicago Police Department, No. 16 CH 03254 (Cir. Ct. Cook County). On May 3, 2019, the 12  No. 1-19-1384 chancery court issued an order finding: “this Court defers to [the trial court], in the first instance, to determine whether disclosure of the four documents would be prohibited by his Order.” Smith, No. 16 CH 03254 (Cir. Ct. Cook County, May 3, 2019). None of the media appellants were a party to Smith’s chancery suit. ¶ 29 On July 31, 2019, the trial court issued an order stating that the four withheld documents were, in fact, prohibited from disclosure by the trial court’s 2016 order, that the 2016 order was modified to allow for the production of these four documents, and that the matter was continued to August 14, 2019. ¶ 30 On August 14, 2019, the special prosecutor in the Van Dyke case moved the trial court to lift the interim decorum order entered in 2016. The notice of motion stated that it was e- mailed to the media appellants’ attorneys and that the matter was scheduled for September 4, 2019. The media appellants did not move in the circuit court or in this court to stay these proceedings. See Ill. S. Ct. R. 305(d) (eff. July 1, 2017) (a motion for a stay may be made to the reviewing court upon a showing “that application to the circuit court is not practical”). ¶ 31 In his motion, the prosecutor argued that the 2016 order applied “to a mere 18 items that currently remain under seal” and that it had no other continuing effect, since it depended on a “ ‘determination’ ” of “ ‘admissibility’ ” by the trial court in the underlying Van Dyke case, which was then over. The motion observed that the State had already redacted these 18 items to comply with state law and that the media appellants had indicated at a prior hearing that they favored redaction as an alternative to appeal. The motion included a proposed order that stated (1) “[t]he Special Prosecutor’s Motion to Lift the Decorum Order entered on January 20, 2016[,] is granted” and (2) “[t]he 18 items currently under seal shall be released in redacted form.” 13  No. 1-19-1384 ¶ 32 On August 14, 2019, the special prosecutor and counsel for the city appeared in front of the trial court. The prosecutor informed the court that he had “sen[t] notice out” concerning his motion and he had received no objections from defendant or the media appellants or “any of the other individuals who have petitioned to intervene.” The trial court observed: “And I think a reasonable explanation to that would be other than the third-party interven[o]rs, the other ones, if they—my understanding is that they appealed my orders about sealing 18 of the documents. And so if they come in here and start saying some things, then they might—well, they wouldn’t reinvest jurisdiction, so they’d be kicked out of the Appellate Court.” ¶ 33 On September 4, 2019, the trial court signed the proposed order in its entirety, without changes. The transcript indicates that Van Dyke’s counsel was present but the media appellants’ attorneys did not attend. Explaining the redactions, the special prosecutor stated that he had “redacted only information that contains personal identifiable information about La[q]uan McDonald that would be—that is protected by the Juvenile Court Act and then transcripts or quotations of testimony before the Grand Jury including the identity of any witness that would have testified before any of the Grand Jury proceedings in the underlying criminal case.” Counsel for the City of Chicago, who was also present, stated that the City supported the prosecutor’s motion. ¶ 34 On August 23, 2019, the media appellants filed a motion in the appellate court, claiming: “There are 17 documents at issue in this appeal that are currently under seal in the Circuit Court.” The media appellants listed the 17 documents by title and filing date and 14  No. 1-19-1384 requested an order directing the circuit court of Cook County to transmit these 17 documents under seal to the appellate court, which we granted. ¶ 35 Briefing in the instant appeal began six months later, with the first brief filed January 8, 2020. The appellate record in this case was received in 12 different e-filings, over the course of nine months, with the documents often not in chronological order. We want to remind the parties that we do read the record and perform our own independent review and analysis of it, and that it is the appellants’ responsibility to provide “a,” i.e., one, coherent and complete table of contents. Ill. S. Ct. R. 342 (eff. Oct. 1, 2019). ¶ 36 ANALYSIS ¶ 37 The media appellants’ first claim is that the trial court erred by failing to vacate the interim decorum order after the Van Dyke jury returned a verdict in October 2018. ¶ 38 Although the media appellants’ initial appellate brief argued that the trial court improperly entered the order and asked this court to find that its entry was improper, the media appellants’ reply brief clarified that they are challenging only “the maintenance” of the interim decorum order “rather than the entry” of the order “itself.” (Emphasis in original.) The reply brief emphasized that “what this appeal is about” is “the maintenance of the [d]ecorum [o]rder after the jury returned its verdict.” ¶ 39 The media appellants’ second claim is that the trial court erred by “maintaining” under seal, after the jury’s verdict, the documents regarding defendant’s motion to dismiss, and the media appellants ask this court to order the documents’ release in unredacted form. ¶ 40 I. Jurisdiction ¶ 41 First, we must consider whether we have jurisdiction. A reviewing court has an independent duty to consider its own jurisdiction. People v. Smith, 228 Ill. 2d 95 , 104 (2008). 15  No. 1-19-1384 Questions concerning appellate jurisdiction are questions of law that are considered de novo. In re Marriage of Kelly, 2020 IL App (1st) 200130 , ¶ 21 (hereinafter Marriage of Kelly). Generally, de novo consideration means that a reviewing court performs the same analysis that a trial judge would perform. People v. Aljohani, 2020 IL App (1st) 190692 , ¶ 78. However, “[w]hen there is no ruling below for us to review,” de novo review means that “our legal consideration is made on a blank slate.” People v. Kirklin, 2015 IL App (1st) 131420 , ¶ 104. ¶ 42 A. First Claim: Interim Decorum Order ¶ 43 The media appellants argue that the trial court’s order “of May 23, 2019 is the adverse judgment appealed from.” As noted above, on May 23, 2019, the trial court (1) orally denied the media appellants’ motion to reconsider the April 10 order and (2) issued a written order maintaining a few documents under seal. We consider first our jurisdiction over the denial of the motion to reconsider. 5 ¶ 44 The basis for our jurisdiction is significant because, if the proper basis for jurisdiction is Illinois Supreme Court Rule 307, then we lack jurisdiction with respect to the media appellants’ first claim. Rule 307 does not provide jurisdiction over the media appellants’ motion to join Smith’s motion to intervene and vacate because it is well established that, under Rule 307, a motion to reconsider does not toll the time to appeal. E.g., In re Marriage of Salviola, 2020 IL App (1st) 182185 , ¶ 39 (citing a number of cases); Ill. S. Ct. R. 307(a)(7) (eff. Nov. 1, 2017) (“the appeal must be perfected within 30 days from the entry of the interlocutory order by filing a notice of appeal”). Thus, the media appellants’ time to appeal 5 In their appellate brief filed January 8, 2020, the media appellants stated specifically that they were appealing “from the May 23, 2019 Final Order denying Intervenors’ Motion to Reconsider.” 16  No. 1-19-1384 under Rule 307 expired 30 days after the entry of the original April 10, 2019, order, or on May 10, 2019, and the media appellants did not appeal until over a month later, on June 21, 2019. 6 ¶ 45 The State concedes that we have jurisdiction pursuant to Rule 303. However, a concession by the State does not confer jurisdiction upon us. As we noted above, a reviewing court has an independent duty to consider its own jurisdiction. Smith, 228 Ill. 2d at 104 . The filing of a notice of appeal is the jurisdictional step that initiates review. Smith, 228 Ill. 2d at 104 . Without a properly filed notice, “a reviewing court has no jurisdiction over the appeal and is obliged to dismiss” the appeal. Smith, 228 Ill. 2d at 104 . ¶ 46 In People v. Kelly, 397 Ill. App. 3d 232 (2009) (hereinafter R. Kelly) , we set forth the proper vehicle for appealing a denial of access to the media in a criminal case. That vehicle was an immediate appeal pursuant to Rule 307. R. Kelly, 397 Ill. App. 3d at 247. ¶ 47 The parties were well aware of our decision in the R. Kelly case. They cited to it and quoted from it repeatedly in the court below. After the R. Kelly case, our supreme court decided the Zimmerman case, which also found Rule 307 to be the proper vehicle for providing jurisdiction to the appellate court. Zimmerman, 2018 IL 122261 , ¶ 20. The media appellants moved the trial court to consider Zimmerman, only eight days after it was decided, and thus, they were aware that it was instructive in conferring jurisdiction in access-to-the-media cases. Yet, they chose to wait to file their notice of appeal. ¶ 48 In R. Kelly, this court affirmed on appeal a “Decorum Order,” issued by the same trial judge, that is virtually identical to the interim decorum order entered here. R. Kelly, 397 Ill. 6 In addition, the denial of the media appellants’ motion to reconsider was entered nunc pro tunc as of April 10, 2019. Thus, even if the media appellants’ ability to appeal this issue was alive and well on May 23, 2019, it vanished when the trial court entered the denial, without any objection, nunc pro tunc back to April 10, 2019. 17  No. 1-19-1384 App. 3d at 270 (“we find that the trial court’s Decorum Order was not an abuse of discretion by the trial court”). Compare R. Kelly, 397 Ill. App. 3d at 239-40 (quoting the R. Kelly decorum order in full), with supra ¶ 7 (quoting the decorum order in the instant case). 7 The R. Kelly intervenors included at least two of the appellants before us now, represented by at least one of the same counsel. Unlike here, the R. Kelly intervenors filed their own independent motion to vacate, and unlike here, they appealed the denial of that motion within 30 days pursuant to Rule 307. R. Kelly, 397 Ill. App. 3d at 240-41. In R. Kelly, we stated that “the question” before us was “whether the path to review” for a media intervenor denied access was “Supreme Court Rule 307(a) or some other rule or statute.” R. Kelly, 397 Ill. App. 3d at 245. ¶ 49 Rule 307(a) provides that “[a]n appeal may be taken to the Appellate Court from an interlocutory order of court: (1) granting, modifying, refusing, dissolving, or refusing to dissolve or modify an injunction.” Ill. S. Ct. R. 307(a)(1) (eff. Nov. 1, 2017). “[A] trial court’s order denying access to a media intervenor is ‘in the nature of injunctive relief.’ ” R. Kelly, 397 Ill. App. 3d at 245 (quoting A.P. v. M.E.E., 354 Ill. App. 3d 989 , 990-91 (2004)). ¶ 50 After an exhaustive review of precedent, we found, unequivocally, that Rule 307 is and has been “the appropriate vehicle” in this state for an appeal by media intervenors denied access to documents that they may find to be newsworthy. R. Kelly, 397 Ill. App. 3d at 248, 250 (noting the media’s interest in “ ‘newsworthy’ ” documents). ¶ 51 Citing our decision in R. Kelly with approval, the supreme court also found that “Rule 307(a)(1) has long been the vehicle in Illinois for appellate review of orders denying access to criminal records or proceedings.” Zimmerman, 2018 IL 122261 , ¶ 20. The State in Zimmerman 7 Appellants concede in their appellate brief that the interim decorum order in the instant case “substantially tracks the order in” the R. Kelly case. 18  No. 1-19-1384 asked the supreme court “to refer the issue to our rules committee for consideration of the proper vehicle for reviewing orders denying access to criminal records or proceedings.” Zimmerman, 2018 IL 122261 , ¶ 21. However, our supreme court “f[ou]nd that unnecessary,” given that the proper vehicle was already well established in our state as Rule 307. Zimmerman, 2018 IL 122261 , ¶¶ 21-22. ¶ 52 The media appellants also argue that we have jurisdiction pursuant to Rule 303 and that their notice of appeal deprived the trial court of jurisdiction to vacate the interim decorum order—but that the earlier notice of appeal filed by defendant Van Dyke did not. ¶ 53 In support of their argument that the trial court lacked jurisdiction, the media appellants cite Daley v. Laurie, 106 Ill. 2d 33 , 37 (1985), but that case actually undercuts their argument. In Laurie, the supreme court found that, once the criminal defendant had filed his notice of appeal, the trial court lacked jurisdiction to entertain any further motions in the case. The supreme court explained that, after a notice of appeal is filed in a criminal case, “the cause is beyond the jurisdiction of the trial court.” Laurie, 106 Ill. 2d at 38 . ¶ 54 Their argument illustrates the wisdom of not relying on Rule 303 in media intervenor cases—what is final to one will not be final to another, as shown by Smith’s and the State’s later motions and the grant of the very relief that the media appellants claim they sought. The media appellants fail to explain why their notice of appeal would cut off the trial court’s jurisdiction with respect to Smith or the State, any more than defendant’s notice of appeal would cut off jurisdiction with respect to them. 8 8 The two cases cited by the media appellants in their reply brief do not address the issues raised by two notices of appeal. In Cain v. Sukkar, 167 Ill. App. 3d 941 , 945 (1988), no notice of appeal had been filed prior to the motion at issue. In General Motors Corp. v. Pappas, 242 Ill. 2d 163 , 173-74 (2011), our supreme court found that the circuit court retains jurisdiction to consider certain matters after 19  No. 1-19-1384 ¶ 55 Rule 303(a)(1) provides in relevant part that “[t]he notice of appeal must be filed with the clerk of the circuit court within 30 days after the entry of the final judgment appealed from, or, if a timely posttrial motion directed against the judgment is filed, *** within 30 days after the entry of the order disposing of the last pending postjudgment motion directed against that judgment or order.” Ill. S. Ct. R. 303(a)(1) (eff. July 1, 2017). The media appellants filed their notice of appeal within 30 days of the May 23, 2019, orders; so, if Rule 303 applied, then their notice would be timely. ¶ 56 The media appellants claim that they joined in Smith’s motion to intervene and to vacate, that this motion was denied on April 10, 2019, and that they filed a motion to reconsider that was denied on May 23, 2019. If one strains to apply the language of Rule 303 to these facts in order to find jurisdiction over the media appellants’ claim to vacate, then “the final judgment” becomes the order on April 10 denying the motion to intervene and to vacate, and the media appellants’ motion to reconsider must then be a “posttrial motion directed against the judgment.” Ill. S. Ct. R. 303(a)(1) (eff. July 1, 2017). A denial merely to “reconsider” is obviously not a final judgment unto itself; the final judgment is what the court was being asked to reconsider. ¶ 57 The problem with trying to cast the April 10 order as a “final judgment” regarding the media appellants is, of course, the problem observed below by the trial court itself—there never was a pending motion to vacate for them to join. Ill. S. Ct. R 303(a)(1) (eff. July 1, 2017). In a short four-paragraph document, the media appellants merely asked to “join in” Smith’s motion. the filing of a notice of appeal, such as a stay of judgment, a petition of fees or costs, or the award of judgment interest. Neither case addressed issues relating to two notices of appeal, injunctions or interlocutory orders, or unrelated parties. 20  No. 1-19-1384 However, once his motion to intervene was denied, there was no pending motion to vacate for the media appellants to join in. Therefore, their theory is contrary to the law, as made and provided. ¶ 58 If it is the written order concerning the 18 documents that is considered “the final judgment” for purposes of Rule 303, then the April 10 order denying Smith’s motion to intervene must be considered a necessary step to this order, for us to have jurisdiction over it. Ill. S. Ct. R. 303(a)(1) (eff. July 1, 2017); Direct Auto Insurance Co. v. Bahena, 2019 IL App (1st) 172918 , ¶ 43 (an appeal is deemed to include an interlocutory order if it was a necessary step in the procedural progression to the order before us); Filliung v. Adams, 387 Ill. App. 3d 40 , 50 (2008). However, we fail to see how the denial of another’s motion to intervene could be considered a “necessary step” in the resolution of the media appellants’ already pending motion regarding a short list of specified documents. See Marriage of Kelly, 2020 IL App (1st) 200130 , ¶¶ 23-25 (where a trial court’s prior orders denying access to media intervenors were immediately appealable under Rule 307, appellate court lacked jurisdiction to consider these prior orders, although intervenors had appealed 30 days after the trial court’s last and final order). ¶ 59 Straining to fit this case into the words of Rule 303 shows the wisdom of handling these types of matters under Rule 307. This is, after all, a criminal case. The parties are the State and defendant. The “final judgment” in this criminal case was the conviction and sentence entered against defendant Van Dyke. The media appellants are not parties to the criminal case but rather are intervenors who are trying to protect their first amendment rights and the first amendment rights of the public by challenging injunctions against access and release of information. On appeal, those challenges are best handled, as we and the supreme court have 21  No. 1-19-1384 both found, through Rule 307. Since an appeal under Rule 307 is untimely, we lack jurisdiction to consider the appeal of the trial court’s denial of the media appellants’ motion to reconsider the denial of their motion to join in Smith’s motion to intervene and vacate. 9 ¶ 60 The media appellants also ask us to consider the possibility of jurisdiction under Illinois Supreme Court Rule 605 (eff. Oct. 1, 2001), which governs appeals in criminal cases. Rule 605 provides, in relevant part, that “the right to appeal the judgment of conviction *** will be preserved only if a notice of appeal is filed in the trial court within thirty (30) days from the date on which sentence is imposed.” Ill. S. Ct. R. 605(a)(3)(A) (eff. Oct. 1, 2001). In their initial brief, the media appellants argued: “to the extent this Court treats this case as a criminal appeal because it arises from a criminal case, the Court has appellate jurisdiction pursuant to Illinois Supreme Court Rule 605.” However, to the extent that this was a criminal case, final judgment was entered on January 18, 2019, when defendant Van Dyke was sentenced. Van Dyke filed a notice of appeal on February 8, 2019, and any rights the media appellants possibly had to appeal under Rule 605 expired 30 days after the entry of the final judgment in his case. We observe that, in their reply brief, the media appellants do not argue for jurisdiction under Rule 605. ¶ 61 For all the above reasons, we do not have jurisdiction to consider the media appellants’ first claim regarding the trial court’s oral denial of their motion to reconsider the denial of Smith’s motion to intervene and vacate. 9 Yet another advantage of handling media access orders pursuant to Rule 307 is it removes the fear of reinvesting the trial court with jurisdiction. In their appellate brief, the media appellants observe that they did not appear in subsequent proceedings after filing a notice of appeal from the “final” decision, for fear of reinvesting the trial court with jurisdiction and jeopardizing their appeal. If each media access order is considered as an interlocutory order, that fear is eliminated, allowing both the parties and the courts greater flexibility. 22  No. 1-19-1384 ¶ 62 B. Order Denying Release of 18 Documents ¶ 63 We do, however, have jurisdiction under Rule 307 to consider the appeal of the trial court’s written order, also entered on May 23, 2019, denying the release of 18 listed documents. The notice of appeal of that interlocutory order was timely filed under Rule 307, less than 30 days after the order was entered. ¶ 64 II. Dismissal Documents ¶ 65 Although the order covered 18 documents, the media appellants challenge the order on appeal with respect to only 8 documents and ask this court to order the release of these 8 documents in “full” or unredacted form. ¶ 66 When reviewing the denial of a motion by media intervenors to unseal a court file, we review the trial court’s decision only for an abuse of discretion, whether the claimed right of access is based on the first amendment, common law, or statute. Marriage of Kelly, 2020 IL App (1st) 200130 , ¶ 32; R. Kelly, 397 Ill. App. 3d at 256; see also Zimmerman, 2018 IL 122261 , ¶ 44 (“the trial court did not abuse its discretion by allowing” certain documents “to remain sealed”); Skolnik v. Altheimer & Gray, 191 Ill. 2d 214 , 233 (2000). An abuse of discretion occurs when the trial court’s decision is arbitrary, fanciful, or unreasonable or where no reasonable person would take the position adopted by the trial court. People v. Thompson, 2020 IL App (1st) 171265 , ¶ 84. ¶ 67 In their initial appellate brief, the media appellants describe the documents at issue as “the eight documents filed with the Circuit Court concerning motions to dismiss the indictment based on allegation of misconduct by the State’s Attorney.” Although the subsequently released 18 documents are part of the appellate record, the media appellants do not provide record citations for the particular 8 documents that they are disputing. The 18 documents have 23  No. 1-19-1384 titles and are stamped with the dates that they were filed in the circuit court, but the media appellants do not identify the disputed documents by either title or filing date. ¶ 68 In its response brief, the State argues that the “eight” documents that the media appellants seek are actually the seven documents that the media appellants listed on March 15, 2019, in their “Status Report,” as documents concerning defendant Van Dyke’s motion to dismiss the indictment for misconduct. The media appellants’ “Status Report” listed 21 documents, by title and filing date, that were still under seal at that time, and the first 7 listed concerned defendant Van Dyke’s motion to dismiss the indictment for misconduct. The State’s appellate brief lists these 7 documents by title, by filing date in the circuit court, and by citation of the appellate record. ¶ 69 In their reply brief, the media appellants acknowledge that the State might be right and that it is “possible” that there are only seven. The media appellants claim that “the lack of clarity” is due to the “secrecy surrounding the record.” However, the special prosecutor represented to the trial court that only 18 documents remained under seal as of September 2019 and moved to unseal and release all of them, which the trial court then ordered. Thus, all 18 previously sealed documents have now been released in redacted form and can be identified by title and filing date. Since the media appellants have chosen not to specifically identify the documents that they are challenging, we are persuaded by the State’s reasoning that there are only 7 in dispute and that those are the 7 listed in the media appellants’ status report and in the State’s appellate brief. ¶ 70 The State argues that the media appellants’ claims are forfeited. Forfeiture is “ ‘the failure to make the timely assertion of [a] right.’ ” People v. Sophanavong, 2020 IL 124337 , ¶ 20 (quoting People v. Lesley, 2018 IL 122100 , ¶ 37). The failure of a timely assertion in the 24  No. 1-19-1384 court below results in forfeiture of the issue on review. Matthews v. Avalon Petroleum Co., 375 Ill. App. 3d 1 , 8 (2007). ¶ 71 With respect to the redactions, the media appellants repeatedly suggested redacting to the trial court as a solution. ¶ 72 On April 10, 2019, when the State objected to the release of certain documents on the ground that they contained grand jury material and the trial court agreed, the media appellants pleaded: “Would you please reconsider and consider redacting grand jury information [?]” The media appellants argued that “the least restrictive means would warrant redactions if there’s a reference to grand jury materials.” ¶ 73 On May 23, 2019, the media appellants were the ones who raised the topic of redacting, informing the trial court that they were in favor of redacting “the materials relating to the motions to dismiss the indictment based on alleged misconduct before the Grand Jury”—i.e., the documents at issue now. The media appellants stated that the prosecutor had described to them prior to court on May 23 how “he was prepared to make redactions.” The State then described for the court how it planned to redact, namely, that it would redact the names of grand jury witnesses and quotes from their testimony. 725 ILCS 5/112-6 (West 2018) (prohibiting disclosure of grand jury matters); Press-Enterprise Co. v. Superior Court of California for Riverside County, 478 U.S. 1 , 9 (1986) (the right of public access does not apply to grand jury proceedings). The media appellants do not claim that the State’s redaction process differed from how it was described, nor can we find that it did. Generally, appellants’ claims regarding the State’s redactions would be considered either forfeited or invited error. “A party cannot invite an error by the trial court and then use it as a basis for appeal.” Direct Auto Insurance Co. v. Bahena, 2019 IL App (1st) 172918 , ¶ 36. In the case at bar, appellants 25  No. 1-19-1384 repeatedly invited the trial court to redact references to the grand jury, and so an argument can be made that the media appellants cannot complain now about those redactions on appeal. However, we understand that the reason that they asked for the redacted documents was because they wanted to review them for newsworthy purposes and never intended to give up their claimed right to the unredacted material. Cf. R. Kelly, 397 Ill. App. 3d at 249 (discussing the media’s interest in “ ‘newsworthy information’ ” (quoting In re A Minor, 127 Ill. 2d 247 , 257 (1989))). Thus, we do not find forfeiture or invited error. ¶ 74 The seven documents are 1. Defendant Van Dyke’s “Motion to Dismiss the Indictment for Misconduct at Grand Jury,” filed February 3, 2017; 2. Defendant Van Dyke’s “Memorandum of Law in Support of Motion to Dismiss the Indictment,” filed February 3, 2017; 3. “People’s Response and Motion to Clarify Defendant’s Motion to Dismiss the Indictment and/or Other Relief Pursuant to Garrity v. New Jersey,” filed February 3, 2017; 4. Defendant Van Dyke’s “Motion to Dismiss the Indictment And/Or Other Relief,” filed April 20, 2017; 5. Defendant Van Dyke’s “Motion to Dismiss the Indictment,” filed April 20, 2017; 6. Defendant Van Dyke’s “Memorandum of Law in Support of Motion to Dismiss the Indictment,” filed April 20, 2017; and 7. “People’s Combined Response to Defendant’s Motion to Dismiss the Indictment and Motion to Dismiss the Indictment And/Or Other Relief,” filed May 11, 2017. 26  No. 1-19-1384 ¶ 75 After reviewing the full, unredacted copies of the above listed documents for our in camera review, we find that the redactions consisted of (1) in item No. 1, the name of a grand jury witness, questions and testimony before the grand jury, and citations of the appropriate pages; (2) in item No. 2, grand jury questions, discussions and testimony, and the names of grand jury witnesses; (3) in item No. 4, the name of a grand jury witness and his testimony;10 (4) in item No. 5, the name of a grand jury witness; and (5) in item No. 7, the names of grand jury witnesses, grand jury testimony, statements by the prosecutor before the grand jury, and descriptions of grand jury evidence. ¶ 76 With respect to item No. 6 listed above, the special prosecutor released two redacted documents on September 4, 2019, that were both titled defendant Van Dyke’s “Memorandum of Law in Support of Motion to Dismiss the Indictment.” One was file-stamped April 20, 2017, and the other was not file-stamped. The file-stamped copy is 10 pages, and the one that is not file-stamped is only 5 pages. The longer version appears to elaborate on the shorter version, and the State listed the longer version as the document that the media appellants sought, rather than the shorter version. However, when the circuit court produced the sealed, unredacted copies for our inspection, it provided us only with the shorter version. This omission did not adversely affect our independent in camera review, since the only redaction in the longer document was the name of one Federal Bureau of Investigation (FBI) agent who testified before the grand jury. The shorter version had no redactions at all. ¶ 77 With respect to item No. 3 listed above, the document is three pages long, and the appellate record is missing the second and fourth pages of the redacted version. Thus, we do 10 Not all of his testimony was redacted from the document. 27  No. 1-19-1384 not know what was redacted on those two pages. However, the only words redacted from the rest of the document is the name of an FBI agent. ¶ 78 When faced with a request for media access, a trial court generally determines, first, whether a presumption of public access applies to the particular type of information sought. R. Kelly, 397 Ill. App. 3d at 255. This is a purely legal question that is reviewed de novo. R. Kelly, 397 Ill. App. 3d at 255. De novo consideration means that we perform the same analysis that a trial judge would perform. People v. Knight, 2020 IL App (1st) 170550 , ¶ 37. If the trial court finds the presumption applies, then it determines whether the presumption is rebutted by other concerns. R. Kelly, 397 Ill. App. 3d at 255. “In deciding to deny access to certain proceedings and records for a certain length of time, the trial court ha[s] to craft a careful and delicate balance among competing interests.” R. Kelly, 397 Ill. App. 3d at 256. “To this balancing of interests and determining of parameters, we apply an abuse of discretion standard” of review. R. Kelly, 397 Ill. App. 3d at 256. An abuse of discretion occurs only when the trial court’s decision is arbitrary, fanciful, or unreasonable or where no reasonable person would take the position adopted by the trial court. People v. Thompson, 2020 IL App (1st) 171265 , ¶ 84. A presumptive right of public access does not attach to grand jury proceedings. Press-Enterprise Co., 478 U.S. at 9 . ¶ 79 On appeal, appellants argue that the grand jury materials should be released in full, based on the following set of propositions. First, appellants observe that grand jury materials are routinely used in trials to impeach witnesses. 11 Second, they argue, without citation of a statute or a case, that grand jury transcripts used at trial become “public.” Third, arguing by 11 In support of this proposition, the media appellants cite a case, People v. Robinson, 368 Ill. App. 3d 963 , 980 (2006), in which the appellate court quoted a question and answer from a witness’s grand jury testimony. 28  No. 1-19-1384 analogy to their unsupported second proposition, appellants claim that this court should apply “[t]he same principle” to grand jury transcripts used to support or oppose pretrial motions. Without supporting statutory or case law, we do not find their argument persuasive. ¶ 80 In addition, the media appellants do not argue that they were prejudiced by the two- month delay between their filing a notice of appeal and the trial court’s grant of the relief they requested, namely, the release of the documents. Although even a short denial of access may implicate important first amendment concerns (R. Kelly, 397 Ill. App. 3d at 247), the media appellants needed to articulate the concerns present during the delay. R. Kelly, 397 Ill. App. 3d at 250 (observing that a newspaper has an interest in “ ‘newsworthy information’ ” (quoting In re A Minor, 127 Ill. 2d at 257 )). During these two months, defendant Van Dyke’s trial was over, and no briefs were filed in his appeal. 12 Prior to that period, the record established that all parties were actively trying to reach an agreement concerning the disputed documents, which was largely successful, and we cannot find error by the trial court in allowing this process to proceed. A decorum order is like a permanent injunction and lasts, as all permanent injunctions do, until it is lifted. However, it is a good idea for a trial judge to include an end date, if it meets the ends of justice. ¶ 81 The media appellants argue that the need to maintain grand jury secrecy was greatly diminished one year after the verdict and cite in support In re Appointment of Special Prosecutor, 2019 IL 122949 , ¶ 32. However, that case stands for just the opposite. In that case, our supreme court found that a party seeking release of grand jury material must demonstrate a particularized need for the material that outweighs the policies supporting secrecy. Special 12 No briefs were filed in the appeal of defendant Van Dyke’s conviction, and the appeal was ultimately dismissed upon his motion to dismiss. People v. Van Dyke, No. 1-19-0398 (Oct. 9, 2020). 29  No. 1-19-1384 Prosecutor, 2019 IL 122949 , ¶ 47. The appellant in that case had argued that disclosure of grand jury witnesses and statements would “serve the public interest in detecting and deterring political and prosecutorial corruption.” Special Prosecutor, 2019 IL 122949 , ¶¶ 48, 39. Our supreme court found “[s]uch generalized statements do not constitute ‘particularized need’ ” and affirmed the denial of the release of seven-year-old grand jury material. Special Prosecutor, 2019 IL 122949 , ¶¶ 48-49. This case does not help the media appellants. ¶ 82 The media appellants also cite the Seventh’s Circuit decision in Carlson v. United States, 837 F.3d 753 (7th Cir. 2016), which bears little resemblance to our case. In Carlson, a World War II historian was writing a book and sought grand jury materials from almost 75 years ago. Carlson, 837 F.3d at 756-57. The Seventh Circuit found that the courts, as part of their limited and inherent supervisory power over the grand jury, had the discretion to release these historical records, and the government conceded that the district judge did not abuse his discretion in doing so. Carlson, 837 F.3d at 755-56, 767. In its brief to this court, the media appellants quoted the part of the decision where the court found that the historian had the right “to petition” for access. Carlson, 837 F.3d at 759. However, in almost the next line, the court also found that “his petition is not guaranteed to be granted.” Carlson, 837 F.3d at 759. 13 ¶ 83 In sum, we are not persuaded by this claim due to a lack of error on the part of the trial court. Historically, documents pertaining to matters before the grand jury are not the type of material that is given to the media because those proceedings are protected by statute and common law. See 725 ILCS 5/112-6 (West 2018) (“Secrecy of proceedings”); Special Prosecutor, 2019 IL 122949 , ¶ 31 (“The rule of secrecy surrounding grand jury proceedings is 13 The media appellants also cite Lucas v. Turner, 725 F.2d 1095 , 1109 (7th Cir. 1984), which denied the release of grand jury materials, on the ground that plaintiffs failed to “demonstrate[ ] that they have conducted prompt, thorough and exhaustive discovery before seeking the materials protected by grand jury secrecy.” 30  No. 1-19-1384 a common-law concept recognized as a fundamental component of both federal and state criminal procedural law.”); Press-Enterprise Co., 478 U.S. at 8-9 (the grand jury is the “classic example” of a government proceeding where the right of public access does not apply). ¶ 84 III. Validity of the Trial Court’s September 2019 Order ¶ 85 Lastly, the media appellants argue that the trial court’s September 2019 order is invalid, because the court lacked jurisdiction in September 2019 to modify its May 2019 order to permit release of the 18 documents. ¶ 86 The media appellants argue that the trial court lacked jurisdiction because (1) the media appellants had filed a notice of appeal and (2) there were no changed circumstances between May and September 2019. With respect to the first argument, we already observed above that the media appellants fail to explain why their notice of appeal would cut off the trial court’s jurisdiction with respect to Smith and the State, any more than the filing of defendant Van Dyke’s notice would cut off jurisdiction with respect to them. Defendant Van Dyke was also an interested party with respect to the interim decorum order. In R. Kelly, when we explained the advantages of treating access orders as interlocutory orders appealable under Rule 307, rather than as final declaratory judgments, we explained that (1) “the criminal defendant, who has an interest in the disclosure issue, is already before the court with counsel” and (2) unlike a declaratory judgment which is final, an interlocutory order can “adapt to the unfolding and possibly shifting needs of a criminal case.” R. Kelly, 307 Ill. App. 3d at 244-45; see also Zimmerman, 2018 IL 122261 , ¶ 20 (Rule 307 is “the vehicle in Illinois for appellate review of orders denying access to criminal records or proceedings”); Marriage of Kelly, 2020 IL App (1st) 200130 , ¶ 23 (where media intervenors failed to appeal within 30 days as Rule 307 required, this court lacked jurisdiction to review an access order). In essence, appellants are 31  No. 1-19-1384 trying to turn the trial court’s May 2019 order into a final declaratory judgment between just them on one side and the State on the other—a procedure that we already rejected in the R. Kelly case because the appellants before us are simply not the only interested parties. ¶ 87 Thus, we are not persuaded by appellants’ argument that their notice of appeal cut off the trial court’s jurisdiction to enter the September 2019 order. ¶ 88 With respect to appellants’ second argument concerning changed circumstances, both parties cite Bundy v. Chicago League of America, 125 Ill. App. 3d 800 , 806 (1984), where the appellate court found that a trial court lacked jurisdiction to modify a permanent injunction in the absence of changed circumstances in law or facts. ¶ 89 In Bundy, the parties reached an agreement that led to the trial court’s entry of an agreed order that included a permanent injunction. Bundy, 125 Ill. App. 3d at 802, 805. Nine months later, without a request pending from either party, the trial court sua sponte dissolved the permanent injunction. Bundy, 125 Ill. App. 3d at 801-02. One of the parties appealed from the dissolution order within 30 days pursuant to Supreme Court Rule 307. Bundy, 125 Ill. App. 3d at 802. The appellate court found that the trial court lacked jurisdiction to sua sponte dissolve a permanent injunction in an agreed order without changed circumstances. Bundy, 125 Ill. App. 3d at 807. ¶ 90 The Bundy case bears little resemblance to our case. In the case at bar, the original 2016 order was titled an “interim” order rather than a permanent injunction; the trial court did not act sua sponte when it dissolved the interim order in September 2019. By doing so, the trial court provided relief previously requested by appellants and subsequently requested, or at least unopposed, by all parties. As noted above, although formally notified of the continuing proceedings, appellants did not seek a stay. 32  No. 1-19-1384 ¶ 91 To the extent that changed circumstances were required to dissolve an “interim” order—and we do not find that they were—those changed circumstances were the fact that prior objections by the city and defendant had evaporated. On May 23, 2019, when the State proposed a way to redact the disputed documents, defendant Van Dyke’s attorney had objected to factual assertions made by the State. By contrast, on September 4, 2019, defendant Van Dyke’s attorney attended and voiced no objection, and the counsel for the City of Chicago supported the State’s motion. ¶ 92 Appellants argue that the State failed to argue changed circumstances before the trial court in September 2019. But why would the State make such an argument when everyone was on notice of the State’s proposed order and no one was objecting to its entry? ¶ 93 Thus, we do not find persuasive appellants’ claim that the trial court’s September 2019 order was invalid. ¶ 94 CONCLUSION ¶ 95 For the foregoing reasons, we find (1) that we lack jurisdiction to consider appellants’ first claim concerning their motion to join in another journalist’s motion to intervene and to vacate; (2) that, with respect to their second claim, the trial court did not err in delaying release of the disputed documents or in releasing them as redacted; and (3) that the trial court had jurisdiction in September 2019 to modify its prior interim order. Thus, we dismiss the first claim and affirm the dismissal of the second. ¶ 96 Affirmed in part and dismissed in part. 33 No. 1-19-1384 No. 1-19-1384 Cite as: People v. Van Dyke, 2020 IL App (1st) 191384 Decision Under Review: Appeal from the Circuit Court of Cook County, No. 17-CR- 4286; the Hon. Vincent M. Gaughan, Judge, presiding. Attorneys Brendan J. Healey, of Baron Harris Healey, of Chicago, for for appellants WLS Television, Inc., WFLD Fox 32 Chicago, and Appellant: WGN Continental Broadcasting Company. Natalie J. Spears and Gregory R. Naron, of Dentons US, LLP, of Chicago, for appellant Chicago Tribune Company, L.L.C. Jeffrey D. Colman, Michael T. Brody, Catherine L. Doyle, and Christina T. Lopez, of Jenner & Block LLP, of Chicago, for appellant Chicago Public Media, Inc. Damon E. Dunn, of Funkhouser Vegosen Liebman & Dunn Ltd., of Chicago, for appellant Sun-Times Media, L.L.C. Attorneys Joseph H. McMahon, State’s Attorney, Special Prosecutor, of for St. Charles (Michelle Katz, Assistant State’s Attorney, of Appellee: counsel), for the People. 34

2020-12-03 22:03:46.656428+00

http://www.illinoiscourts.gov/Opinions/AppellateCourt/2020/3rdDistrict/3180349.pdf

2020 IL App (3d) 180349 Opinion filed December 3, 2020 ____________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS THIRD DISTRICT 2020 THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court ILLINOIS, ) of the 14th Judicial Circuit, ) Rock Island County, Illinois, Plaintiff-Appellee, ) ) Appeal No. 3-18-0349 v. ) Circuit No. 16-CF-805 ) ANTONIO McGHEE, ) Honorable ) Norma Kauzlarich Defendant-Appellant. ) Judge, Presiding. ____________________________________________________________________________ JUSTICE CARTER delivered the judgment of the court, with opinion. Justice O’Brien concurred in the judgment and opinion. Justice Holdridge dissented, with opinion. ____________________________________________________________________________ OPINION ¶1 Defendant, Antonio McGhee, appeals his convictions for unlawful use or possession of weapons by a felon (UUWF) and armed habitual criminal (AHC). Defendant argues that (1) the Rock Island circuit court erred in denying his motion to suppress evidence after police officers searched a locked glove compartment in a vehicle he was driving, and (2) his Iowa conviction for second degree burglary was not a proper predicate offense for the charge of AHC. We affirm in part, reverse in part, and remand. ¶2 I. BACKGROUND ¶3 Defendant was charged with UUWF (720 ILCS 5/24-1.1(a) (West 2016)). The State later added the charge of AHC (id. § 24-1.7(a)). That charge alleged that defendant knowingly possessed a firearm after having been twice convicted of burglary, a forcible felony. The information indicated that one of defendant’s prior burglary convictions was a 2009 Illinois conviction and the other was a 2010 Iowa conviction. ¶4 Defendant filed a motion to suppress a gun recovered in a search of a vehicle he had been driving. Defendant alleged that the gun was discovered in a locked glove compartment. Defendant argued that the search of the glove compartment was illegal because the officers did not have a warrant, he did not consent, and there was no probable cause to search the glove compartment. ¶5 A hearing was held on the motion to suppress. Officer Steven Mumma testified that he and Officer Jonathan Shappard conducted a traffic stop on a vehicle after learning from another officer that it had committed a traffic violation. There were four people inside the vehicle. Defendant was the driver. While Mumma was still inside the squad car, he could see the front seat passenger looking around and reaching down between his feet several times. Mumma later said that this movement was consistent with putting something in the glove compartment. ¶6 When Mumma approached the vehicle, he observed that the front seat passenger had an open bottle of beer in his hand. He was drinking it while Shappard talked to defendant. Mumma also saw another open bottle of beer on the floor between the passenger’s feet. The beer was still cold. Defense counsel asked Mumma if the movement he had earlier observed from the passenger could have been consistent with placing the beer between the passenger’s feet. Mumma said that could have been part of it, but there was a lot of movement. 2 ¶7 Mumma and Shappard had everyone exit the vehicle. Two other officers arrived and stood with the four occupants of the vehicle. Mumma and Shappard searched the vehicle for additional open containers of alcohol. Mumma explained that once he observed open containers of alcohol, he believed there was probable cause to search the vehicle for more evidence of that. They found a plastic bag, which had been between the passenger’s feet. It contained three or four unopened bottles of Modelo beer. The bottles were not in a six-pack container. ¶8 The officers searched the glove compartment, which was in the same area Mumma saw the passenger reaching to when the vehicle stopped. Based on the dimensions of the glove compartment, a bottle of beer could have only been stored in the glove compartment on its side. Defense counsel asked Mumma what he would be looking for in the glove compartment as far as an open container of alcohol given the dimensions of the glove compartment. Mumma replied, “These bottles could be resealed as far as the caps being screwed back on.” The officers found a revolver and a large amount of counterfeit currency in the glove compartment. Mumma could not recall anyone giving them consent to search the glove compartment. Mumma believed that Shappard had placed handcuffs on defendant before the end of the search. The other passengers were handcuffed once the officers found the gun. ¶9 After the testimony, the parties agreed that the glove compartment was locked before the officers searched it. ¶ 10 The court issued a written order denying the motion to suppress. The court cited United States v. Ross, 456 U.S. 798 , 823 (1982) for the proposition that an individual’s expectation of privacy in a vehicle and its contents does not survive if there is probable cause to believe that the vehicle is transporting contraband. The court reasoned: 3  “In this case the officers had probable cause to search the vehicle once they observed the open alcohol within the passenger’s compartment of the vehicle. That probable cause allowed them to search anywhere in the vehicle that an open can of beer could have been, which included the locked glove compartment.” ¶ 11 Defendant filed a motion to dismiss the AHC charge. Defendant stated that his prior Iowa conviction was for burglary in the second degree. Defendant argued that this did not constitute a forcible felony under Iowa law. The court denied the motion. ¶ 12 The matter proceeded to a bench trial. Over defense counsel’s objection, the court admitted a certified copy of defendant’s 2010 Iowa conviction for second degree burglary. The court also took judicial notice of the fact that defendant was convicted of burglary in a 2009 Illinois case. ¶ 13 Mumma testified that, on the evening of the incident, he and Shappard conducted a traffic stop on a vehicle after another officer reported that the vehicle committed a traffic violation. As they were pulling the vehicle over, Mumma noticed furtive movements from the front seat passenger, who he later determined to be Brushey Pugh. Pugh moved back and forth and reached down in the area of his feet. The movements Pugh was making were consistent with trying to hide something. Mumma did not see the driver make any movements toward Pugh or the glove compartment. ¶ 14 The officers approached the vehicle. Defendant was driving, Pugh was in the front passenger seat. Pugh had “what appeared to be two open containers of Modelo beer.” He was actively consuming one of the beers at the time the officers approached. Mumma and Shappard had everyone exit the vehicle, and they searched the vehicle for more open containers of alcohol. The officers located two open containers of Modelo beer and a few closed bottles of alcoholic 4  beverages on the front passenger-side floorboard. On cross-examination, defense counsel asked Mumma, “And [Pugh] had a six pack, probably with two missing, of beer between his legs?” Mumma responded, “Correct.” ¶ 15 Mumma noticed that the glove compartment was locked. Shappard left to ask defendant for the key. The officers eventually retrieved a key and were able to open the glove compartment. The key that they used to open the glove compartment was on a key chain that was in the ignition at the time of the stop. The officers found a gun and a bundle of counterfeit currency inside the locked glove compartment. Mumma testified that four individuals were taken into custody as a result of the incident. There were at least five officers on the scene. Mumma identified the actual gun that he recovered from the vehicle. The gun was eventually admitted into evidence. ¶ 16 Shappard testified that, on the evening of the incident, he encountered defendant while conducting a traffic stop. When Shappard activated the lights on his squad car, he saw the front seat passenger reach forward. His head moved up and down, and it appeared that he was trying to hide something. Shappard approached the vehicle. Defendant was the driver of the vehicle, and Pugh was the front seat passenger. Mumma advised Shappard that the passenger had an open container of alcohol. Shappard testified that Pugh had two open bottles of Modelo beer in his hands. There was a shopping bag on the floor of the vehicle with four more sealed beers. They were in a six pack. ¶ 17 Shappard and Mumma had defendant and his three passengers exit the vehicle. There were additional officers on the scene who assisted them. Defendant shut the vehicle off, took the keys, and stepped out of the vehicle. Defendant was very cooperative at that point. Shappard searched the vehicle and learned that the glove compartment was locked. He asked defendant for 5  the keys to the glove compartment. Defendant became uncooperative and refused to give Shappard the keys. Shappard put defendant in handcuffs and retrieved the keys from his pocket. When asked if he physically placed defendant under arrest, Shappard stated, “I detained him, yes.” Shappard testified that he used the same key that had been in the ignition to open the glove compartment. He found a firearm and a large amount of currency inside. ¶ 18 The parties stipulated that Pugh, the front-seat passenger in the vehicle during the incident, was taken into custody after the traffic stop. At the jail, a black key was found inside Pugh’s right shoe. It was later determined that the key unlocked the doors of the vehicle and glove compartment in which the gun was found. ¶ 19 Matthew Durbin testified that he was an assistant public defender. He was assigned to represent Pugh on charges that arose out of the incident. Pugh gave Durbin a letter allegedly written by defendant. Durbin spoke with defendant, and defendant indicated he was willing to testify at Pugh’s trial. Defendant indicated to Durbin that the gun was his. The court admitted the notarized letter into evidence. The letter stated that the gun belonged to defendant. ¶ 20 Defendant testified that, on the evening of the incident, he was driving a vehicle that he had borrowed from his sister. The gun that was introduced into evidence did not belong to him, and he had never seen it. Defendant did not know how Pugh obtained a key to the glove compartment. Defendant testified that he wrote the letter that was given to Durbin, but the statements in the letter were not true. He claimed that he owned the gun in the letter because he was receiving threats from gang members at the jail. ¶ 21 The court found defendant guilty of both offenses. ¶ 22 Defense counsel filed a motion to reconsider the guilty verdict arguing that the trial evidence was insufficient to prove defendant guilty beyond a reasonable doubt, defendant’s Iowa 6  conviction for second degree burglary was not a forcible felony under Illinois law, and the confession letter should not have been admitted into evidence. ¶ 23 The court permitted defense counsel to withdraw after defendant claimed that he had been ineffective. The court appointed new counsel to represent defendant at sentencing. The court eventually allowed defendant to represent himself. ¶ 24 As a self-represented litigant, defendant filed a posttrial motion and an amended posttrial motion, which argued, among other things, that the court should have granted the motion to suppress and that any evidence obtained as a result of the search of the glove compartment must be suppressed. Defendant also noted that additional testimony presented at the trial was not presented at the suppression hearing. ¶ 25 Defendant filed a brief in support of his posttrial motion. Defendant stated that the officers testified at the trial that all the beers in the six pack had been accounted for before they searched the glove compartment. Defendant noted that this evidence had not been presented at the suppression hearing and argued that the court would have likely ruled in his favor if it had heard this evidence. Defendant also noted that the keys to the glove compartment were taken from his person. ¶ 26 At the hearing on defendant’s posttrial motion, defendant argued that there was evidence presented at the trial that was not presented at the suppression hearing. Specifically, defendant stated that the court did not get to hear evidence at the suppression hearing that the key that opened the glove compartment was taken from him and that it was in the ignition the whole time. Defendant also noted that the court did not hear evidence at the suppression hearing that the officers “found all the liquor or the six pack container.” 7 ¶ 27 The court denied the amended posttrial motion. The court sentenced defendant to 10 years’ imprisonment for AHC. The UUWF count merged. ¶ 28 II. ANALYSIS ¶ 29 A. Motion to Suppress ¶ 30 Defendant argues that the circuit court erred in denying his motion to suppress the gun found in the locked glove compartment. Defendant contends that the officers’ search of the locked glove compartment for open containers of alcohol was not justified because it was not reasonable to believe that open containers of alcohol would be found in the glove compartment where the officers had already accounted for all six bottles from the package. We find that the court properly denied defendant’s motion to suppress because the officers had probable cause to search the glove compartment. ¶ 31 “A search conducted without prior approval of a judge or magistrate is per se unreasonable under the fourth amendment, subject only to a few specific and well-defined exceptions.” People v. Bridgewater, 235 Ill. 2d 85 , 93 (2009). Relevant to this appeal, these exceptions include (1) the automobile exception and (2) a search incident to arrest. See id.; People v. James, 163 Ill. 2d 302 , 312 (1994). When reviewing a ruling on a motion to suppress evidence, we will reverse the factual findings of the circuit court only if they are against the manifest weight of the evidence. Bridgewater, 235 Ill. 2d at 92. However, we review de novo the circuit court’s legal ruling as to whether the evidence should be suppressed. Id. ¶ 32 Defendant frames his argument on appeal as an argument that the search was unlawful because the search incident to arrest exception to the warrant requirement did not apply. However, defendant’s brief also contains some discussion of probable cause to search and authority related to the automobile exception. The State’s brief contains extensive citations to 8  authority concerning the automobile exception in support of its argument that the search of the vehicle was justified as a search incident to arrest. The circuit court’s written order indicated that the court denied the motion to suppress upon finding that the automobile exception, rather than the search incident to arrest exception, applied. The substance of defendant’s arguments as to why the court erred in denying the motion to suppress—namely, that the search of the locked glove compartment was unreasonable based on the circumstances known to the officers at the time of the search—apply to both exceptions. Accordingly, we consider both exceptions to the warrant requirement in our analysis. ¶ 33 1. Automobile Exception ¶ 34 We first consider whether the search of the locked glove compartment was justified under the automobile exception to the warrant requirement. “Under the automobile exception, law enforcement officers may undertake a warrantless search of a vehicle if there is probable cause to believe that the automobile contains evidence of criminal activity that the officers are entitled to seize.” James, 163 Ill. 2d at 312 . “To establish probable cause, it must be shown that the totality of the facts and circumstances known to the officer at the time of the search would justify a reasonable person in believing that the automobile contains contraband or evidence of criminal activity.” People v. Hill, 2020 IL 124595 , ¶ 23. “Probable cause deals with probabilities, not certainties. [Citation.] It is a flexible, commonsense standard that ‘does not demand any showing that such a belief be correct or more likely true than false.’ [Citation.] Therefore, probable cause does not require an officer to rule out any innocent explanations for suspicious facts. [Citation.] Instead, it requires only that the facts available to the officer—including the plausibility of an innocent explanation—would warrant a 9  reasonable man to believe there is a reasonable probability ‘that certain items may be contraband or stolen property or useful as evidence of a crime.’ ” Id. ¶ 24 (quoting Texas v. Brown, 460 U.S. 730 , 742 (1983)). The scope of a warrantless search under the automobile exception “is defined by the object of the search and the places in which there is probable cause to believe that it may be found.” Ross, 456 U.S. at 824 . ¶ 35 We find that the search of the locked glove compartment for open containers of alcohol was justified under the automobile exception because the officers had probable cause to search the locked glove compartment for open containers of alcohol. Under section 11-502(a) of the Illinois Vehicle Code (625 ILCS 5/11-502(a) (West 2016)), “no driver may transport, carry, possess or have any alcoholic liquor within the passenger area of any motor vehicle upon a highway in this State except in the original container and with the seal unbroken.” At the suppression hearing, Mumma testified that he observed the front seat passenger had one open bottle of beer in his hand and another between his feet. At that point, the officers had probable cause to believe that the vehicle contained evidence of the offense of illegal transportation of an open container of alcohol. Under the automobile exception, the officers were permitted to search any part of the passenger compartment of the vehicle where there was probable cause to believe that open containers of alcohol could be found, including the locked glove compartment. See Ross, 456 U.S. at 824 . Notably, Mumma testified that an open bottle of beer that had been resealed could fit in the glove compartment on its side. Mumma also testified that he observed the front seat passenger make movements that were consistent with placing something in the glove compartment. 10 ¶ 36 We reject defendant’s argument that it was unreasonable for the officers to believe that open containers of alcohol would be found in the locked glove compartment because (1) all of the bottles of beer in the six pack had been accounted for before they searched the glove compartment and (2) any liquid inside an open container of alcohol would have spilled all over the interior of the vehicle if it were hidden in the glove compartment on its side. 1 The officers were not obligated to assume that no additional open containers of alcohol other than the six pack of beer were present in the vehicle. There could have been open containers of types of alcohol other than beer in the vehicle as well. Also, Mumma testified that the bottles of beer he observed could have been resealed by having the cap screwed back on and would have fit in the glove compartment on their sides. ¶ 37 We also reject the position taken by the dissent that the locked glove compartment was not part of the passenger area of the vehicle because it was locked and the only key known to the officers at the time of the search was in the ignition of the running car. The record contains no information as to when the glove compartment was locked or whether a key was necessary to initially lock the glove compartment. The glove compartment was directly in front of Pugh and within his reaching distance. Under these circumstances, the officers had probable cause to believe that the locked glove compartment was part of the passenger area of the vehicle such that any open containers of alcohol stored within it would have been contraband. ¶ 38 2. Search Incident to Arrest 1 We note that Mumma testified at the suppression hearing that the unopened beers that the officers found in the vehicle were not part of a six pack container, but he and Shappard both indicated during their trial testimony that the beers were part of a six pack container. Defendant filed a posttrial motion seeking reconsideration of the court’s suppression ruling based, in part, on the presentation of this additional evidence at trial. Accordingly, we may consider evidence presented at trial as well as at the suppression hearing in considering defendant’s argument on appeal. See People v. Gill, 2018 IL App (3d) 150594 , ¶ 76. 11 ¶ 39 Having found that the search of the locked glove compartment was justified under the automobile exception, we need not consider whether it was also permissible under the search incident to arrest exception to the warrant requirement. However, we will briefly address this exception as well. Under the search incident to arrest exception, police officers may conduct a warrantless search of a vehicle incident to the recent arrest of an occupant when: “(1) the arrestee is unsecured and within reaching distance of the vehicle’s passenger compartment at the time of the search; or (2) officers reasonably believe evidence relevant to the crime of arrest may be found in the vehicle.” Bridgewater, 235 Ill. 2d at 94-95; see also Arizona v. Gant, 556 U.S. 332 , 343 (2009). The parties agree that the first prong of the search incident to arrest exception does not apply. Therefore, the parties only dispute the second prong: whether the officers reasonably believed that evidence relevant to the offense of illegal transportation of alcoholic liquor could be found in the locked glove compartment. ¶ 40 As a threshold matter, in order for the search incident to arrest exception to apply to the officers’ search for open containers of alcohol, there must have been a valid arrest for the offense of illegal transportation of alcoholic liquor. See Bridgewater, 235 Ill. 2d at 94-95; People v. Arnold, 394 Ill. App. 3d 63 , 68 (2009). Defendant does not explicitly argue that he was arrested for this prior to the search of the glove compartment. The State takes the position that defendant was under arrest at the time of the search but does not address whether defendant was under arrest for the offense of illegal transportation of alcoholic liquor. ¶ 41 However, assuming that the arrest component of the search incident to arrest exception was satisfied, we find that the officers reasonably believed evidence relevant to the offense of transporting an open container of alcohol would be found in the glove compartment. See supra ¶¶ 35-37. 12 ¶ 42 B. Predicate Forcible Felony for AHC ¶ 43 Defendant argues that his conviction for AHC should be reversed because his Iowa conviction for burglary in the second degree was not a proper predicate offense. First, defendant argues that the legislature did not intend for out-of-state convictions to be considered under the definition of “forcible felony” in section 2-8 of the Criminal Code of 2012 (Code) (720 ILCS 5/2-8 (West 2016)). Alternatively, defendant contends that if the legislature did intend for out-of- state convictions to be considered, the State failed to prove that the Iowa offense of second degree burglary constituted a forcible felony in Illinois. Specifically, defendant argues that the offense of burglary in Iowa may be based on conduct that would not qualify as a burglary in Illinois, and the State failed to present evidence concerning the underlying facts of defendant’s Iowa conviction. We find that, even assuming that the legislature intended for out-of-state convictions to qualify as forcible felonies, the State failed to prove beyond a reasonable doubt that defendant’s Iowa conviction for second degree burglary was a forcible felony under Illinois law. ¶ 44 Defendant’s argument presents questions of both statutory interpretation and sufficiency of the evidence. In considering a challenge to the sufficiency of the evidence, “ ‘the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ” (Emphasis in original.) People v. Collins, 106 Ill. 2d 237 , 261 (1985) (quoting Jackson v. Virginia, 443 U.S. 307 , 319 (1979)). In order to prove defendant guilty of AHC, the State was required to prove that defendant (1) received, sold, possessed, or transferred a firearm and (2) was previously convicted of two forcible felonies as defined in section 2-8 of the Code. 720 ILCS 5/24-1.7(a) (West 2016). The question of whether the State proved beyond a 13  reasonable doubt that defendant’s Iowa conviction for second degree burglary constituted a forcible felony requires us to interpret section 2-8 of the Code. ¶ 45 “The primary goal in construing a statute is to ascertain and give effect to the intent of the legislature.” People v. Belk, 203 Ill. 2d 187 , 192 (2003). “Legislative intent is best ascertained by examining the language of the statute itself.” Id. “In determining the plain meaning of the statute, we consider the statute in its entirety and are mindful of the subject it addresses and the legislative purpose in enacting it.” People v. Baskerville, 2012 IL 111056 , ¶ 18. “Where the language is clear and unambiguous, there is no need to resort to aids of statutory construction.” Belk, 203 Ill. 2d at 192 . Also, if a statute is clear and unambiguous, “courts cannot read into the statute limitations, exceptions, or other conditions not expressed by the legislature.” People v. Glisson, 202 Ill. 2d 499 , 505 (2002). “[C]ourts may assume that the legislature did not intend absurdity, inconvenience or injustice to result from legislation.” Id. Construction of a statute is a question of law which we review de novo. Belk, 203 Ill. 2d at 192 . ¶ 46 Section 2-8 of the Code (720 ILCS 5/2-8 (West 2016)) provides: “ ‘Forcible felony’ means treason, first degree murder, second degree murder, predatory criminal sexual assault of a child, aggravated criminal sexual assault, criminal sexual assault, robbery, burglary, residential burglary, aggravated arson, arson, aggravated kidnaping, kidnaping, aggravated battery resulting in great bodily harm or permanent disability or disfigurement and any other felony which involves the use or threat of physical force or violence against any individual.” ¶ 47 Upon examining the plain language of the forcible felony statute and its legislative purpose, we find that the legislature intended the enumerated offenses in the forcible felony statute to refer to Illinois offenses. All of the enumerated offenses listed in the definition of 14  “forcible felony” bear the names of Illinois offenses that are subsequently defined in the Code. See id. §§ 9-1, 9-2, 10-1, 10-2, 11-1.20, 11-1.30, 11-1.40, 12-3.05, 18-1, 19-1, 19-3, 20-1, 20- 1.1, 30-1. The purpose of the statute is to define the term “forcible felony,” as used throughout the Code. See id. § 2-0.5. Given this context, we hold that the legislature intended for the enumerated offenses listed in the forcible felony statute to have the meaning later ascribed to them in the Code. See id. §§ 9-1, 9-2, 10-1, 10-2, 11-1.20, 11-1.30, 11-1.40, 12-3.05, 18-1, 19-1, 19-3, 20-1, 20-1.1, 30-1. ¶ 48 Thus, while the forcible felony statute makes no explicit provision concerning whether convictions from foreign jurisdictions may also constitute forcible felonies in Illinois, we find that if the legislature intended for offenses from foreign jurisdictions to constitute forcible felonies, the foreign conviction would either have to (1) satisfy the elements of one of the enumerated Illinois offenses, as defined in the Code, or (2) fall within the residual clause—i.e., “any other felony which involves the use or threat of physical force or violence against any individual.” Id. § 2-8. We need not decide whether a conviction from a foreign jurisdiction may constitute a forcible felony to resolve this case, as we find that the State failed to show that defendant’s Iowa conviction for second degree burglary fell within either of these two categories. ¶ 49 1. Enumerated Felony of Burglary ¶ 50 First, the State failed to show that defendant’s Iowa conviction for second degree burglary satisfied the elements of the Illinois offense of burglary. Under section 19-1(a) of the Code, “[a] person commits burglary when without authority he or she knowingly enters or without authority remains within a building, housetrailer, watercraft, aircraft, motor vehicle, railroad car, or any part thereof, with intent to commit therein a felony or theft.” Id. § 19-1(a). 15 ¶ 51 A person commits the Iowa offense of second degree burglary in either of the following situations: “a. While perpetrating a burglary in or upon an occupied structure in which no persons are present, the person has possession of an explosive or incendiary device or material, or a dangerous weapon, or a bodily injury results to any person. b. While perpetrating a burglary in or upon an occupied structure in which one or more persons are present, the person does not have possession of an explosive or incendiary device or material, nor a dangerous weapon, and no bodily injury is caused to any person.” Iowa Code § 713.5 (2010). The Iowa Code defines burglary as follows: “Any person, having the intent to commit a felony, assault or theft therein, who, having no right, license or privilege to do so, enters an occupied structure, such occupied structure not being open to the public, or who remains therein after it is closed to the public or after the person’s right, license or privilege to be there has expired, or any person having such intent who breaks an occupied structure, commits burglary.” Id. § 713.1. ¶ 52 Under Iowa law, an “occupied structure” includes “any building, structure, appurtenances to buildings and structures, land, water or air vehicle, or similar place adapted for overnight accommodation of persons, or occupied by persons for the purpose of carrying on business or other activity therein, or for the storage or safekeeping of anything of value.” Id. § 702.12. A structure meeting this description is considered an “occupied structure” whether or not a person is actually present within the structure. Id. 16 ¶ 53 The Iowa Supreme Court has held that “[a] thing is an appurtenance ‘when it stands in relation of an incident to a principal and is necessarily connected with the use and enjoyment of the latter.’ ” State v. Pace, 602 N.W.2d 764 , 770 (Iowa 1999) (quoting State v. Baker, 560 N.W.2d 10 , 13 (Iowa 1997)). In Baker, 560 N.W.2d at 13-14 , the Iowa Supreme Court held that a driveway to a residence satisfied the definition of occupied structure. The court reasoned that a driveway was an appurtenance to a building or structure because “[d]riveways are closely associated with, and connected to, buildings and structures.” Id. at 13 . The court also found that driveways were “occupied by persons for the purpose of carrying on business or other activities, or used for the storage or safekeeping of anything of value.” Id. at 14 . The court reasoned: “Driveways are often occupied by persons for numerous types of activities, such as sporting activities, children playing, vehicle washing, cookouts, and countless other activities. Also, driveways are commonly used for the storage or safekeeping of things of value, namely automobiles, boats, and trailers.” Id. ¶ 54 Upon examining the Illinois offense of burglary as defined in the Code and the Iowa offense of second degree burglary as defined pursuant to Iowa law, we find that an Iowa conviction for second degree burglary would not necessarily satisfy the elements of the Illinois offense of burglary. A person could be convicted of second degree burglary in Iowa if he or she, without authority, entered a driveway where no persons were present while carrying a dangerous weapon with the intent to commit a felony, theft, or assault. See Iowa Code §§ 702.12 , 713.1, 713.5 (2010); Baker, 560 N.W.2d at 13-14 . Entering a driveway under these circumstances would not constitute a burglary in Illinois. Section 19-1(a) of the Code (720 ILCS 5/19-1(a) (West 2016)) requires as an element of the offense of burglary that an individual knowingly 17  enter, or without authority remains in, a building, housetrailer, watercraft, aircraft, motor vehicle, railroad car, or any part thereof. ¶ 55 Thus, an Iowa conviction for second degree burglary is not necessarily equivalent to an Illinois conviction for burglary based on the elements of the offenses alone. The State presented no evidence concerning the underlying facts of defendant’s Iowa conviction for second degree burglary. Accordingly, the State failed to show that defendant’s Iowa conviction for second degree burglary constituted a conviction for burglary within the meaning of section 19-1(a) of the Code and the forcible felony statute. See id. §§ 2-8, 19-1(a). As a result, defendant’s Iowa conviction for second degree burglary may only serve as a predicate forcible felony for the offense of AHC if it falls within the residual clause of the forcible felony statute. ¶ 56 In coming to this conclusion, we acknowledge that Illinois courts have held that, where a defendant is charged with AHC based on prior convictions for enumerated offenses in the forcible felony statute, the State is only required to prove the fact of the prior convictions of the enumerated offenses. People v. McGee, 2017 IL App (1st) 141013-B , ¶ 22; People v. Perkins, 2016 IL App (1st) 150889 , ¶ 7. These courts have held that “[n]othing in the armed habitual criminal statute requires a court to examine a defendant’s underlying conduct in commission of the enumerated offenses in order to find that the State has sustained its burden of proof.” Perkins, 2016 IL App (1st) 150889 , ¶ 7; McGee, 2017 IL App (1st) 141013-B , ¶ 22. However, these cases have only considered situations where a defendant was charged with AHC based on prior Illinois convictions for enumerated offenses. Perkins, 2016 IL App (1st) 150889 , ¶¶ 1-2; McGee, 2017 IL App (1st) 141013-B , ¶¶ 4-6. In these circumstances, the mere fact of the conviction is enough to show that the elements of the Illinois offenses were satisfied. However, where, as here, the State seeks to use a conviction from a foreign jurisdiction as a predicate forcible felony, the State 18  must show that the foreign conviction satisfied the elements of one of the enumerated forcible felonies, as defined in the Code, or fell within the residual clause. ¶ 57 2. Residual Clause ¶ 58 Having found that the State failed to prove that defendant’s Iowa conviction for second degree burglary constituted a burglary within the meaning of the Illinois forcible felony statute, we now consider whether defendant’s second degree burglary conviction fell within the residual clause of the forcible felony statute. Under the residual clause, a forcible felony includes “any other felony which involves the use or threat of physical force or violence against any individual.” 720 ILCS 5/2-8 (West 2016). Illinois courts have held that crimes fall under the residual clause in two situations. People v. Schultz, 2019 IL App (1st) 163182 , ¶ 21. ¶ 59 First, if one of the elements of the offense is a specific intent to carry out a violent act, then every instance of the offense necessarily qualifies as a forcible felony. Id. In such a situation, it is not necessary to consider the specific circumstances of the underlying offense. Id. Rather, the court conducts “an analysis of the elements of the underlying offense to determine whether proof of those elements necessarily entails the use or threat of force or violence against an individual.” People v. Sanderson, 2016 IL App (1st) 141381 , ¶ 6. ¶ 60 The Iowa offense of second degree burglary does not satisfy these requirements. Proof of the elements of second degree burglary does not necessarily entail the use or threat of force or violence against an individual. While the State contends that the possession of an explosive or incendiary device or deadly weapon shows the contemplation of and willingness to use force, proof of this is only required under subsection (a) of the second degree burglary statute. Iowa Code § 713.5 (a) (2010). Notably, an additional element of subsection (a) is that no other person was present in the occupied structure at the time of the burglary. Id. The State did not present any 19  evidence as to which subsection defendant was convicted under. While the second degree burglary statute requires that the defendant have the intent to commit a felony, theft, or assault (see id. §§ 713.1, 713.5), a theft or felony is not always a violent act. ¶ 61 We reject the State’s argument that the threat of physical force or violence is inherent even if defendant did not intend violence while committing a burglary. The State notes that the United States Supreme Court held in Quarles v. United States, 587 U.S. ___, ___, 139 S. Ct. 1872 , 1879 (2019) (quoting Taylor v. United States, 495 U.S. 575 , 588 (1990)), that the rationale for categorizing burglary as a violent felony was its “ ‘inherent potential for harm to persons.’ ” The Quarles Court further reasoned: “Burglary is dangerous because it ‘creates the possibility of a violent confrontation between the offender and an occupant, caretaker, or some other person who comes to investigate.’ ” Id. at ___, 139 S. Ct. at 1879 (quoting Taylor, 495 U.S. at 588 ). However, the fact that legislatures have categorized burglary as a violent felony due to the inherent potential for violence and the possibility of a violent confrontation does not mean that proof of the elements of burglary necessarily entails the use or threat of force or violence, as required under the first prong of the residual clause. See Sanderson, 2016 IL App (1st) 141381 , ¶ 6. ¶ 62 “The second way a felony can qualify as a forcible felony, even if a crime does not have violent intent as an element, is if the State proves that ‘under the particular facts of this case,’ the defendant contemplated the use of force and was willing to use it.” Id. ¶ 7 (quoting Belk, 203 Ill. 2d at 195 ). Here, the State presented no evidence concerning the underlying facts of defendant’s conviction for second degree burglary. Accordingly, the second prong of the residual clause was not satisfied. 20 ¶ 63 Thus, even assuming that out-of-state convictions may constitute forcible felonies under section 2-8 of the Code (720 ILCS 5/2-8 (West 2016)), the State has failed to prove that defendant’s Iowa conviction for second degree burglary constituted a forcible felony. Accordingly, defendant’s conviction for AHC must be reversed because the State failed to prove that defendant had prior convictions for two forcible felonies, as required under section 24-1.7(a) of the Code (id. § 24-1.7(a)). See People v. Lucas, 231 Ill. 2d 169 , 178 (2008) (“Due process requires that to sustain a conviction of a criminal offense, the State must prove a defendant guilty beyond a reasonable doubt of the existence of every element of the offense.”). ¶ 64 III. CONCLUSION ¶ 65 We conclude that the circuit court properly denied the motion to suppress evidence of the gun because the search of the locked glove compartment was justified under the automobile exception. We further conclude that the State failed to prove defendant guilty beyond a reasonable doubt of the offense of AHC because it failed to prove that defendant’s Iowa conviction for second degree burglary met the definition of “forcible felony” under Illinois law. Accordingly, we affirm the denial of the motion to suppress, reverse defendant’s conviction for AHC, and remand the matter for sentencing on the merged offense of UUWF. ¶ 66 Affirmed in part and reversed in part. ¶ 67 Cause remanded. ¶ 68 JUSTICE HOLDRIDGE, dissenting: ¶ 69 I would reverse the judgment of the circuit court denying the motion to suppress. Accordingly, I respectfully dissent. ¶ 70 First, I would find that the search of the locked glove compartment for open containers of alcoholic beverages was not justified under the automobile exception to the warrant requirement because the officers did not have probable cause to believe that they would find contraband in 21  the locked glove compartment. At trial, both Mumma and Shappard testified that the opened and unopened bottles of beer they found in the front seat were part of a six pack container and that all the bottles had been accounted for prior to the search of the locked glove compartment. 2 Also, the occupants of the vehicle made no effort to conceal the open bottles of beer from the officers. In fact, Pugh was drinking from one of the bottles while the defendant spoke to an officer. Additionally, at the time of the search, the only key to the glove compartment that the officers were aware of had been in the ignition of the running vehicle at the commencement of the traffic stop. Under these circumstances, a reasonable person would not be justified in believing that the occupants of the vehicle resealed an open container of an alcoholic beverage, placed it on its side in the glove compartment, and locked the glove compartment with a key that was also used to operate the vehicle in order to conceal the open container from the police. ¶ 71 Moreover, based on the facts known to the officers at the time of the search, an open container of alcoholic liquor in the locked glove compartment would not have been contraband because the locked glove compartment was not part of the “passenger area” of the vehicle. Under section 11-502(a) of the Illinois Vehicle Code (Vehicle Code) (625 ILCS 5/11-502(a) (West 2016)), a driver may not transport open containers of alcoholic liquor within the “passenger area” of a motor vehicle. The Vehicle Code does not define “passenger area.” However, the following guidance from the Illinois Attorney General is helpful in defining this term: “[W]hether a particular area of a motor vehicle is a passenger area is a factual determination which will have to be made in each particular instance. I am of the 2 As the majority noted, this court may consider evidence presented at trial that was not presented at the suppression hearing because the defendant filed a posttrial motion seeking reconsideration of the court’s suppression ruling based, in part, on the presentation of additional evidence at trial. See Gill, 2018 IL App (3d) 150594 , ¶ 76. 22  opinion, however, that in general for purposes of section 11-502 of [t]he *** Vehicle Code, the term ‘passenger area’ means that portion of a motor vehicle which is primarily designed for or which is adapted or devoted to the carrying of passengers. This would include any area of the motor vehicle which is readily accessible to the driver or a passenger.” 1976 Ill. Att’y Gen. Op. No. S-1142, at 2, https://illinoisattorneygeneral.gov/opinions/1976/S-1142.pdf [https://perma.cc/RAU5-AWFY]. ¶ 72 In the instant case, the locked glove compartment was not adapted or devoted to the carrying of passengers. Based on the information known to the officers at the time of the search, the locked glove compartment also was not readily accessible to the driver or a passenger while the vehicle was on a highway prior to the stop. According to Shappard’s testimony, the key used to open the locked glove compartment was in the ignition of the running vehicle at the time he and Mumma initiated the traffic stop. This was the only key to the glove compartment that the officers were aware of at the time of the stop. It would have been impossible for the defendant or a passenger to use this key to store or retrieve an open container of alcohol in the glove compartment while the defendant was driving the vehicle because the key was also needed to operate the vehicle. While the officers later discovered an additional key to the glove compartment in Pugh’s shoe, they were unaware of this key at the time of the search and it could not support a probable cause determination. ¶ 73 Because the locked glove compartment was not part of the passenger area, an open container of alcohol stored inside of it would not have violated section 11-502(a) of the Code. Accordingly, the search of the locked glove compartment was not justified under the automobile 23  exception because the officers lacked probable cause to believe that contraband would be found inside. See Ross, 456 U.S. at 824 . ¶ 74 I would also find that the officers were not justified in searching the locked glove compartment based on the search incident to arrest exception. Assuming that the defendant had been arrested for transporting an open container of alcoholic liquor at the time of the search, it was not reasonable for the officers to believe they would find evidence of this offense inside the locked glove compartment. Supra ¶ 71. Also, based on the facts known to the officers, the locked glove compartment was not part of the passenger area. Supra ¶¶ 72-73. Accordingly, an open container of alcohol in the locked glove compartment would not violate section 11-502 of the Code. ¶ 75 Because I would find that the court erred in denying the motion to suppress evidence of the gun and because the State cannot prove the elements of either UUWF or AHC without evidence of the gun, I would reverse the defendant’s conviction outright. See People v. Jones, 346 Ill. App. 3d 1101 , 1106-07 (2004). Accordingly, I would not reach the defendant’s argument that his Iowa conviction for second degree burglary was not a proper predicate offense for the charge of AHC. 24  No. 3-18-0349 Cite as: People v. McGhee, 2020 IL App (3d) 180349 Decision Under Review: Appeal from the Circuit Court of Rock Island County, No. 16-CF- 805; the Hon. Norma Kauzlarich, Judges, presiding. Attorneys James E. Chadd, Thomas A. Karalis, and Bryon Kohut, of State for Appellate Defender’s Office, of Ottawa, for appellant. Appellant: Attorneys Dora A. Villarreal, State’s Attorney, of Rock Island (Patrick for Delfino, Thomas D. Arado, and Mark A. Austill, of State’s Appellee: Attorneys Appellate Prosecutor’s Office, of counsel), for the People. 25

2020-12-03 22:03:47.308384+00

http://www.illinoiscourts.gov/Opinions/AppellateCourt/2020/1stDistrict/1172082.pdf

2020 IL App (1st) 172082 Nos. 1-17-2082 1-17-2253, cons., Opinion filed December 3, 2020 FOURTH DIVISION IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court ILLINOIS, ) of Cook County. ) Plaintiff-Appellee, ) ) v. ) No. 98 CR 2838 ) DINO DICORPO and DANIEL ) The Honorable HENNEY, ) Paula M. Daleo, ) Judge, presiding. Defendants-Appellants. ) PRESIDING JUSTICE GORDON delivered the judgment of the court, with opinion. Justices Hall and Lampkin concurred in the judgment and opinion. OPINION ¶1 Defendants Dino DiCorpo and Daniel Henney, both age 17, were convicted after separate jury trials of first degree murder, arson, and burglary and were sentenced to natural life in prison for murder, as well as a concurrent 7-year sentence for burglary and a consecutive 30-year sentence for arson. Recently, the trial court granted their postconviction petitions pursuant to Miller v. Alabama, 567 U.S. 460 (2012), and conducted a joint resentencing hearing. It is from this resentencing that defendants now appeal.  Nos. 1-17-2082, 1-17-2253 cons. ¶2 At the resentencing, the trial court found that the “only” issue before it was the natural- life sentence for murder. For this offense, the trial court sentenced DiCorpo to 60 years and Henney to 50 years. As a result of the consecutive 30-year sentence for arson, the total aggregate sentence for DiCorpo is now 90 years and for Henney 80 years. Both defendants appeal claiming, among other things, that the trial court erred by declining to impose new aggregate sentences. ¶3 For the following reasons, we reverse and remand for resentencing on defendants’ aggregate sentences. ¶4 BACKGROUND ¶5 This court already described the trial evidence in both a prior opinion and a prior Rule 23 order, and we incorporate those decisions by reference. People v. Henney, 334 Ill. App. 3d 175 (2002); People v. DiCorpo, No. 1-00-0562 (2002) (unpublished order under Illinois Supreme Court Rule 23). In sum, defendants’ convictions stem from a fire set in the early morning hours of September 15, 1997. The State’s evidence at trial established the following facts. Defendants were driving around with two other friends looking for something to steal. After they pulled into an alley behind an apartment building, defendants exited the vehicle and entered the back porch of the building. When defendants realized that there was nothing on the back porch worth stealing, they set fire to a sheet hanging on a clothesline. The fire eventually swept through the apartment of Anthony Poull, killing his five children. Poull died five days later from his injuries. ¶6 After severed jury trials, defendants were each convicted of six counts of first degree murder and one count each of burglary, arson, and aggravated arson. At the original joint sentencing hearing on January 18, 2000, the trial court stated that it was entering judgment and 2  Nos. 1-17-2082, 1-17-2253 cons. sentence on count I and merging all the murder counts into it.1 On this count, the court sentenced defendants to natural life in prison without the possibility of parole. Count I alleged that defendants “intentionally and knowingly ignited a fire *** knowing that such acts would cause death to Kevin Poull or another.” The trial court also merged the arson count into the aggravated arson count and observed that, since aggravated arson was a Class X felony, the law required the aggravated arson sentence to run consecutively to the murder sentence. While imposing a 30-year consecutive term for aggravated arson, the trial court observed that this sentence would have “no effect here,” in light of the natural-life sentence. Lastly, the trial court imposed a concurrent seven-year term for burglary. On February 14, 2000, the trial court denied, without argument, defendants’ motions to reconsider sentence. ¶7 On direct appeal, Henney argued, among other things, that the trial court erred in imposing a consecutive sentence for aggravated arson. Henney, 334 Ill. App. 3d at 190. The relevant statute prohibited a consecutive sentence if the offenses were committed as part of a single course of conduct, but it required a consecutive sentence if one of the offenses was first degree murder and the defendant inflicted severe bodily injury. See 730 ILCS 5/5-8-4(a) (West 1996). Henney argued that the imposition of consecutive sentences in his case amounted to an improper double punishment, on the ground that he was being punished twice for murder. Henney, 334 Ill. App. 3d at 191. The appellate court did not find this claim persuasive, citing other appellate cases that had previously rejected this type of claim. Henney, 334 Ill. App. 3d at 191. 1 The sentencing orders for both defendants mistakenly state that the trial court entered judgment on “Murder (6 counts).” 3  Nos. 1-17-2082, 1-17-2253 cons. ¶8 On direct appeal, DiCorpo argued, among other things, that the consecutive arson term violated Apprendi v. New Jersey, 530 U.S. 466 (2000). DiCorpo, No. 1-00-0562, slip order at 2. The appellate court did not find this claim persuasive since the Illinois Supreme Court had found that Apprendi did not apply to consecutive sentences. DiCorpo, No. 1-00-0562, slip order at 11. ¶9 On July 16, 2003, Henney filed a pro se postconviction petition that alleged, among other things, that his natural life sentence, imposed when he was a juvenile, violated the proportionate penalties clause of the Illinois Constitution. Ill. Const. 1970 art. I, § 11. On February 27, 2004, the trial court docketed his petition and subsequently appointed the public defender as counsel. 2 On April 9, 2004, the State moved to dismiss, which was denied, and counsel was appointed. Over 10 years later, 3 on May 22, 2015, 4 Henney’s counsel filed both a motion for a new sentencing hearing, pursuant to Miller and the eighth amendment, and a motion to bifurcate the sentencing hearing from the postconviction proceeding. At a hearing on May 22, the State agreed that defendant was “entitled to a new sentencing hearing under Miller” but objected to bifurcating the proceeding. Henney’s counsel responded that she was “very close to completing” her investigation and that Henney “may be” raising an actual innocence claim. The trial court observed: “If this is a Miller issue and I vacate the sentence right now, then the postconviction matters fall by operation of law. Then all that does for us is, after we resentence, we’ll see the postconviction matter again.” The trial court then granted 2 The trial court observed that this was the first time it was aware of the petition and, given the time lapse, the petition had to be docketed. 3 Starting on November 16, 2012, the trial judge for the postconviction proceedings was no longer the same trial judge who had presided over the original trial and sentencing proceedings. 4 At the proceeding on May 22, 2015, the assistant state’s attorney observed that she had filed the State’s motion to dismiss in 2004, and “here we are in 2015, 11 years later, still waiting for a supplemental petition.” 4  Nos. 1-17-2082, 1-17-2253 cons. “the new sentencing hearing under Miller” but declined to rule on the motion to bifurcate. On September 25, 2015, Henney’s counsel confirmed that she was “making an actual innocence claim on behalf of *** Henney.” ¶ 10 On January 23, 2015, DiCorpo filed a pro se postconviction petition 5 alleging that his life sentence violated Miller and the eighth amendment. The trial court docketed his petition on January 30 and appointed the public defender. On May 29, 2015, the trial court granted DiCorpo’s petition and ordered a new sentencing hearing. ¶ 11 On December 17, 2015, both defendants appeared at the same court proceeding. Henney’s counsel raised the issue of vacating both the natural life sentence and the 30-year consecutive arson sentence. The assistant state’s attorney (ASA) responded that her “understanding was that [the court had] vacated his sentence without discussion of the individual components of that sentence.” The trial court then asked Henney’s counsel “are you asking that his—the whole sentence be vacated?” Henney’s counsel responded: “No. We are asking only for the natural life portion.” She explained: “My office’s position on the PC per my division chief is that as long as he has this extra 30 year sentence that we cannot—that the PC is still in existence. We cannot withdraw.” ¶ 12 The ASA responded that Henney had been in custody since December 1997 and “if you do the math, he—it was only the 30 year sentence. He’s probably served that sentence. But it was ordered to run consecutive to the natural life sentence. If the life sentence is gone and all IDOC is calculating is 30 years, he’s probably got enough credit to have served that sentence.” Henney’s counsel then informed the court that Henney had six months “to go” on the 30-year sentence. 5 The 2015 postconviction petition was DiCorpo’s first petition. 5  Nos. 1-17-2082, 1-17-2253 cons. ¶ 13 On December 30, 2015, only Henney’s case was called. Henney’s counsel stated that he was “withdrawing [his] petition today,” and the trial court signed an order that allowed defendant “to withdraw his petition for postconviction relief without prejudice.” The trial court informed Henney: “What this means, sir, is this does not foreclose you from re-filing your PC if you’re so inclined after re-sentencing.” ¶ 14 The ASA stated that the State agreed that Henney’s mandatory natural life sentence was unconstitutional but “that brings another issue,” which was “whether or not the sentences for aggravated arson and burglary remain in effect.” The ASA stated: “Obviously this is a felony murder[6] based on an aggravated arson and burglary. Those findings of guilt remain intact as to the murder findings of guilt.” The trial court then found: “so it’s perfectly clear, I will vacate the natural life sentence on the murder counts, nunc pro tunc to May 22nd, 2015.”7 ¶ 15 On March 16, 2017, a joint resentencing hearing was held for both DiCorpo and Henney. In her opening statement, the ASA stated: “While they were convicted of aggravated arson, which did run consecutive of the time [sic], those counts were vacated, so we’re only here for the murder count, which will run consecutive to each other.” The trial court inquired: “You said that the court vacated the aggravated arson conviction. What court?” The ASA responded: “On the half sheet, Judge, for Mr. Henney, it appears that it was vacated.” The ASA stated that it was on Henney’s half-sheet but not on DiCorpo’s half-sheet. The trial court found: “the only thing that we’re here to do is resentence, as far as I’m concerned, unless I find—hear a transcript or see something. I’m here to resentence on both the aggravated 6 The one count upon which the life sentence was imposed was not a felony murder count. 7 The subsequent written order, dated December 30, 2015, stated that “the sentence of natural life on petitioner Daniel Henney is hereby vacated and a new sentencing hearing [will] be held pursuant to the findings in Miller v. Alabama *** and People v. Davis, 2014 IL 115595 ***. Nunc pro tunc to May 22, 2015.” 6  Nos. 1-17-2082, 1-17-2253 cons. arson and the murder charges. That’s the way I’m looking at the record at this point.” (Emphasis added.) The ASA observed that, “then the max the defendants could be sentenced to, if the Court did not want to sentence these defendants to natural life, would be 90 years.” ¶ 16 DiCorpo’s case proceeded first, and his counsel called Dr. Robert Hanlon, a psychologist who had evaluated DiCorpo. Hanlon was accepted, without objection, as an expert in the field of neuropsychology. Based on his examination of DiCorpo’s past medical records, Dr. Hanlon found that, during DiCorpo’s adolescence, he was diagnosed with attention deficit hyperactivity disorder, various mood disorders, and conduct disorders, including impulse control disorder and oppositional defiant disorder, and that DiCorpo had also been a drug user. As a result, DiCorpo had been admitted to various facilities including Linden Oaks Hospital, Riveredge Hospital, and Allendale School. During one hospitalization, he was diagnosed with major depression. ¶ 17 Dr. Hanlon also conducted his own tests of and interviews with defendant. Concerning DiCorpo’s present psychological condition, Dr. Hanlon opined that, “despite the *** adolescent and child abnormalities that [DiCorpo] manifested, *** as *** documented in his medical records, in my evaluation, he showed no objective evidence of neuropsychological impairment and his intelligence was in the high average range.” Dr. Hanlon opined that DiCorpo had psychological problems in the past that he currently does not have because, “as he continued to mature and his brain developed into an adult brain, he no longer manifested the kind of neurochemical instabilities that tend[ed] to characterize him during childhood and adolescence” and “resulted in the various diagnoses that he received during that time.” 7  Nos. 1-17-2082, 1-17-2253 cons. ¶ 18 DiCorpo’s mother testified that, during her marriage to DiCorpo’s father, she endured physical and mental abuse, which led to her use of drugs. As a result, DiCorpo’s home life was chaotic, and he witnessed violence, abuse, and drug use. At one point, they were homeless. When DiCorpo was in the first grade, she divorced her husband and had little means of supporting herself or her children, so she moved to a low-income neighborhood, which had gangs and drugs. In addition to her drug problems, she had Lupus and was generally unable to supervise her children. DiCorpo began using drugs. Although he was intelligent, he was “always misbehaving” in school. He was “always hyper and moving and not paying attention.” Eventually, he was diagnosed with psychological problems and was admitted into various hospitals and institutions, such as Riveredge Hospital and Allendale School. When DiCorpo was sentenced to life in prison, she “fell apart” and attempted suicide several times. During his time in prison, she has observed an enormous improvement in her son. Now, he is “a calm, very mature young man who thinks logically” and has better communication skills. She testified that she is “clean and sober” but admitted that she was sentenced in 2013 for felony driving under the influence. ¶ 19 DiCorpo’s sister Teresa testified that she was married with four children and that she was employed running the office of a bricking company. She testified that, when she and DiCorpo were growing up, their family home was “[s]cary” and “volatile,” with little parental supervision. Their father was abusive to their mother and to the children, including DiCorpo, and DiCorpo would try to intervene to protect them when their father was abusive to their mother or the other children. At school, DiCorpo was often in trouble for fighting and disobeying. Eventually, he was admitted to several “mental institutions,” where she visited him, including Riveredge, Allendale, and Linden Oaks. When DiCorpo was sentenced to life 8  Nos. 1-17-2082, 1-17-2253 cons. in 2000, she was 17 or 18 years old. The sentence’s effect on her was “devastating because he was our protector and he was gone.” Their mother was never sober, which left her and her sister to raise their little brother, and they had to “grow up very fast.” She has observed a change in DiCorpo since his imprisonment, in that he is now “an adult and not an angry, depressed child.” ¶ 20 DiCorpo’s sister Nina testified that she was married with two children and was a “Master Sergeant” in the Air Force, where she has served for 17 years. When asked to describe her childhood home, she described it as “[c]haotic, crazy, abusive, volatile, unstable.” Her father was abusive, mostly to her mother and to DiCorpo. Because of their father’s abuse, DiCorpo was angry and “[o]ut of control.” He often had behavior problems at school, which led him to be admitted to several institutions, including Allendale, Riveredge, and Linden Oaks. Defendant’s life sentence “tore our family apart.” ¶ 21 Henney did not present live witnesses. However, his parents were present in court, and his counsel indicated that he would read their letters during closing argument. ¶ 22 In addition, the court received into evidence mitigation packets from both Henney and DiCorpo. Henney’s 59-page packet established that he has a nurturing family and that, while incarcerated, he has regularly attended classes, self-help groups, and religious activities. The packet contained letters from supportive family members, a correctional officer who had known Henney during Henney’s entire incarceration, and a volunteer prison minister. There were also completion certificates from numerous courses, as well as awards for his poetry, writing, and art. The packet included a three-page list of disciplinary infractions current through January 4, 2013. However, the last infraction was in 2006. 9  Nos. 1-17-2082, 1-17-2253 cons. ¶ 23 DiCorpo’s 315-page packet did not contain original documents, such as letters or certificates. Instead, the packet provided 21 “themes” and listed “facts” in chronological order after each theme. The 21 themes were, as follows: (1 through 3) his biological parents were Dino DiCorpo II and Susanne DiCorpo, who “had a turbulent and violent relationship”; (4) DiCorpo’s “early childhood experiences” were chaotic; (5) “Dino DiCorpo II was an abusive father, who greatly affected Dino DiCorpo’s development and behavior”; (6) DiCorpo tried to “protect*** his siblings”; (7) “[a]fter Susanne DiCorpo’s divorce, life did not get easier for her or her children”; (8 and 9) “DiCorpo had significant behavioral troubles in school” and “early troubles with the law”; (10) “DiCorpo grew up in a home that lacked the supervision and structure he needed”; (11 through 13) “DiCorpo had childhood experiences” starting fires and “severe behavioral problems,” “was often out of control,” and “was susceptible to peer and gang pressure as a child and adolescent”; (14) “DiCorpo had drug and alcohol addiction as an early adolescent, which became ruinous as he grew older”; (15) “[a]dults took advantage of *** DiCorpo and directed him toward substance abuse and crime”; (16) “DiCorpo moved out and tried to find employment, but, without structure and an ability to control his behavior, his life deteriorated”; (17 and 18) after his arrest and life sentence, “his family was devastated and was in danger of collapse”; and (19 through 21) “Dino DiCorpo is filled with remorse over his crime,” has “tried to do well in prison,” and “has the support to enter society.” ¶ 24 The State called no live witnesses, but Colleen Poull, the wife and mother of the victims, was present in court, and she had prepared a victim impact statement. In the statement, she described how, in the fire, she “lost everything. [She] lost [her] family, [her] home, all memories, pictures, everything” and was left only “with the clothes on [her] back.” The parties 10  Nos. 1-17-2082, 1-17-2253 cons. stipulated to the admission of DiCorpo’s and Henney’s disciplinary records from the Illinois Department of Corrections (IDOC). Henney had 26 infractions, while DiCorpo had 28 infractions. The prosecutor argued that, while most of Henney’s infractions were for “not listening,” DiCorpo had the “more serious” infractions. The court also admitted into evidence, over a defense objection, the photographs of the victims and the crime scene that had previously been admitted into evidence at trial. ¶ 25 During closing argument, the prosecutor observed that the sentencing range for the aggravated arson count was 6 to 30 years. She asked the court to sentence defendants to 30 years for the arson and 60 years for the murder, for an aggregate sentence of 90 years. The prosecutor argued that, since a 90-year sentence would be served at 50 percent, the actual aggregate sentence would be 45 years and defendants would be 63 years old when released. DiCorpo’s counsel asked “for an appropriate time in this case that’s not de facto life.” Henney’s counsel asked for a sentence on the murder count “not to exceed 40 years,” for an aggregate sentence of not more than 70 years. ¶ 26 Henney’s counsel then read to the court letters from Henney’s parents and sister. Henney’s parents talked about “his hyperness” and how it caused him to have difficulties in school and led to fights and, eventually, drugs. Henney’s parents stated that they had observed “a great change in him now.” Henney’s sister stated that Henney was “a troubled child” who struggled in school and socially. He had a learning disability, and “[m]ost kids didn’t want to play with him because of his hyperness.” Their parents struggled to find “the right school” for him “with his disabilities,” which made it harder for him to make and keep friends. When he was 15 years old, he became friends with some teenagers in the neighborhood, which led to an observable difference in Henney. He “lost a lot of weight” and became defensive and 11  Nos. 1-17-2082, 1-17-2253 cons. argumentative, which led to fights. In prison, he “gr[e]w up.” He entered prison not being able to read and write commensurate with his age level, but now had worked diligently to educate himself. ¶ 27 Lastly, defendants addressed the court directly. DiCorpo stated that he was sorry, that he never meant to hurt anyone and that he “turned a moment of partying and drugs into a tragedy.” Henney acknowledged that he had “made mistakes” and was sorry. ¶ 28 The trial judge observed that, since she had not been the original trial judge, she needed time to read the trial transcripts and the proceeding needed to be continued. However, prior to adjourning for the day, the trial court asked: “I would like the State to somehow show me where in this record they think that the agg [sic] arson charge was vacated. I don’t know what the date is, but if there is a date, I will order that transcript. Because, again, in my reading of the Appellate record on—or the Appellate opinion that came down affirming this case, there was no indication that the agg. arson conviction was to be vacated.” ¶ 29 On July 18, 2017, the proceeding resumed, and the trial court read its decision. First, it found that “the aggravated arson and burglary convictions stand and their sentences stand.” Thus, “the only thing *** to be determined today” was “whether the defendants should be resentenced” for murder “to a discretionary sentence of natural life or a term of years.” ¶ 30 Next, the trial court reviewed a number of factors. With respect to defendants’ age, she observed that Henney was “40 days away from turning 18” and DiCorpo was 93 days “away from turning 18,” and “but for those few days” defendants “would have been considered adults” and “we would not be sitting here.” The court stated that “all of us know” adults “who don’t use the best judgment” while “we know some very mature young people.” The court 12  Nos. 1-17-2082, 1-17-2253 cons. found that defendants “were closer to being legally adults than they were children in my opinion. But, nonetheless, *** the Supreme Court has told me that someone under 18 is still a child.” ¶ 31 With respect to the offense, the court observed that the facts of the crime were horrific and “devastating” and that defendants drove around the block three times to verify that a fire had started but did not contact the police. Both defendants had prior criminal histories with several offenses, including burglary. In addition, DiCorpo had a history of starting fires when he was young. While incarcerated for this offense, both men had disciplinary issues. However, DiCorpo had “significant tickets” in IDOC and became involved with gangs, while Henney did not become involved in gangs and sought counseling for his issues. DiCorpo “only recently” decided to leave gang life. With respect to their family backgrounds, the court observed that, although DiCorpo grew up in an abusive environment, he had siblings who grew up to be successful. The court noted that Henney’s family history was “totally the opposite” of DiCorpo’s family history and that Henney had a “strong family” and “a normal childhood.” ¶ 32 Finding that Henney had greater rehabilitative potential, the trial court imposed a sentence of 50 years on Henney while imposing a sentence of 60 years on DiCorpo. The trial court noted: “Those are the sentences for murder. Those will run consecutive to the aggravated arson.” The court stated that “the total years for Mr. DiCorpo are 90 at 50 percent” while “the total” for Henney was 80 years, “served at 50 percent.” ¶ 33 Defendants immediately moved to reconsider their sentences, and their motions were argued orally and decided before their written motions were filed. Defendants argued that their aggregate sentences were de facto life sentences, and the State responded that DiCorpo, for 13  Nos. 1-17-2082, 1-17-2253 cons. example, would be released when he was 63 years old, so that was not a de facto life sentence. The trial court denied their motions. ¶ 34 Henney’s subsequently filed written motion argued, among other things, that the trial court “on this date held that the previously entered 30 year sentence for Aggravated Arson *** shall stand” and is consecutive and that “[t]his sentence is excessive in light of the Defendant’s age.” ¶ 35 DiCorpo’s written motion argued that the trial court “resentenced the defendant to 90 years” and that this sentence was excessive. ¶ 36 DiCorpo and Henney filed timely notices of appeal on July 18, 2017, and August 9, 2017, respectively, and this court consolidated their appeals. ¶ 37 ANALYSIS ¶ 38 Defendants claim, among other things, that the trial court erred by finding that the aggravated arson sentence was not an issue at resentencing and by failing to resentence them on their aggregate sentences. ¶ 39 I. Not Forfeited ¶ 40 The State argues that this claim has been forfeited. The State filed two appellate briefs: one filed with respect to Henney and one filed with respect to DiCorpo after this court consolidated the two appeals. In both briefs, the State argued that, by failing to object at the sentencing hearing, both defendants had forfeited any claim that the trial court failed to resentence them on their aggregate sentences. 8 8 The assistant state’s attorney who appeared at oral argument was listed as an author on both the State’s appellate briefs. Yet the State did not raise forfeiture as an issue during oral argument and seemed unaware when asked if the State was abandoning that argument. Since the issue was raised in both briefs, we address it in our opinion and explain why this issue was not forfeited. 14  Nos. 1-17-2082, 1-17-2253 cons. ¶ 41 To preserve a sentencing issue for appeal, a defendant must raise the issue at the sentencing hearing and in a postsentencing motion. See People v. Hiller, 237 Ill. 2d 539 , 544- 45 (2010) (defendant forfeited objection to sex offender evaluation, when he failed to object either when trial court stated it was ordering it or when it was later admitted at the sentencing hearing); People v. Ballard, 206 Ill. 2d 151 , 192 (2002). ¶ 42 At the start of the sentencing hearing at bar, the trial court found that “the only thing that we’re here to do is resentence, as far as I’m concerned ***. I’m here to resentence on both the aggravated arson and the murder charges.” (Emphasis added.) This finding provided no ground for defendants to object. However, at the conclusion of the hearing, when the trial court read its decision, it found just the opposite—that the aggravated arson sentence would “stand” and that “the only thing” before it was the murder sentence. After the trial court announced its decision, defendants objected both orally at the hearing and subsequently in writing that their aggregate sentences were excessive. Moving to reconsider, DiCorpo argued orally at the hearing that his aggregate 90-year sentence was a de facto life sentence. In support, he cited People v. Reyes, 2016 IL 119271 (per curiam), a then-recent Illinois Supreme Court case that found a sentencing court must consider a juvenile’s aggregate sentence. As for Henney, in his written motion to reconsider, he argued that, “on this date,” the trial court found that “the previously entered 30 years sentence for Aggravated Arson” still stood and that, with the murder sentence running consecutively to it, “[t]his sentence is excessive.” Thus, defendants preserved for review their claim that the trial court erred in not resentencing them on their aggregate sentences. ¶ 43 In its brief to this court, the State argues that the trial court did, in fact, resentence defendants on the aggravated arson count. However, this argument is not supported by the 15  Nos. 1-17-2082, 1-17-2253 cons. record. The trial court began its decision by stating that the aggravated arson sentence stood and that the “only” sentence before it was the murder sentence. After these preliminary findings, the trial court discussed a long list of factors, which it then applied to determining a new murder sentence. Thus, the State’s argument is unsupported by the record. ¶ 44 The State also argues that Henney “initially sought to strategically limit defendant’s claim to his natural life sentence so as not to affect his other postconviction petitions.” However, that concern vanished when Henney withdraw his petition. As a result, Henney offered no objection when the trial court announced, at the start of the resentencing hearing, that it would resentence “both” the aggravated arson and murder counts. The State’s argument pulls facts out of their chronological context and, thus, is not persuasive. ¶ 45 In response to the State’s forfeiture argument, defendants argue in their reply briefs that we should consider their claim under the plain error doctrine. However, this argument applies only if we found the claim unpreserved. ¶ 46 Since the issue is preserved, a harmless-error analysis applies. People v. Thurow, 203 Ill. 2d 352 , 363 (2003). In a harmless-error analysis, it is the State that bears the burden of persuasion with respect to prejudice. Thurow, 203 Ill. 2d at 363 . In other words, the State has the burden of showing, beyond a reasonable doubt, that the sentencing court “would have reached the same finding” absent the error. People v. Shaw, 186 Ill. 2d 301 , 341 (1998); see also People v. Banks, 237 Ill. 2d 154 , 197 (2010) (sentencing error does not require reversal if “harmless beyond a reasonable doubt” and “no prejudice resulted to defendant”). ¶ 47 II. Not Harmless ¶ 48 We are all familiar with the adage that bad facts often make bad law. E.g., Domingo v. Guarino, 402 Ill. App. 3d 690 , 696 (2010) (quoting the adage that “ ‘bad facts make bad 16  Nos. 1-17-2082, 1-17-2253 cons. law’ ”). The facts here are devastating, but the legal question is straightforward: when convictions stem from one single course of events within a short time span, should a trial court, when resentencing a juvenile defendant pursuant to the Miller factors, resentence the aggregate sentences or only the single natural-life sentence that led to the resentencing? We are not called upon to consider and, thus, do not consider whether a court should consider an aggregate term that is not the result of a continuous course of conduct. That question is not before us, so we leave it to another day. The question before us is the much simpler question of an aggregate sentence stemming from one single course of conduct. ¶ 49 In Reyes, our supreme court found that, when determining whether a juvenile’s sentence was or was not a life sentence under Miller, one must look at the aggregate sentence from a single course of conduct. Reyes, 2016 IL 119271 , ¶ 10; People v. Mahomes, 2020 IL App (1st) 170895 , ¶¶ 12, 24 (a 17-year-old defendant’s “total,” aggregate sentence of 44 years violated Miller). In Reyes, our supreme court observed that the juvenile defendant had “committed offenses in a single course of conduct,” which subjected him to sentences resulting in life imprisonment. Reyes, 2016 IL 119271 , ¶ 10. The appellate court had held that Miller applied only to an actual life sentence and had decided “not to aggregate consecutive sentences that amounted to a de facto life term.” Reyes, 2016 IL 119271 , ¶ 6. Our supreme court reversed the appellate court and remanded for resentencing on the “aggregate sentence.” Reyes, 2016 IL 119271 , ¶ 12 (observing that, on remand, the minimum “aggregate sentence” would be 32 years and, thus, “a term that is not a de facto life sentence”); Mahomes, 2020 IL App (1st) 170895 , ¶¶ 24-25 (vacating a juvenile’s aggregate sentence and remanding for resentencing on it). 17  Nos. 1-17-2082, 1-17-2253 cons. ¶ 50 While the trial court was aware what the resulting aggregate sentence would be, that is different from saying that the lack of a resentencing on the aggravated arson count was harmless beyond a reasonable doubt. The trial court made it clear at the start that the aggravated arson sentence would simply stand and that it was fashioning an appropriate sentence on “only” the murder offense. The trial court stated emphatically that the murder sentence was “the only thing” at issue before it at the resentencing. ¶ 51 Thus, we cannot find that this error was harmless beyond a reasonable doubt and must remand for resentencing. ¶ 52 If we had any doubt about the need for resentencing in this case, it is erased by the internal inconsistency in the trial court’s findings, as a result of subsequent caselaw. In the case at bar, the trial court decided not to impose a life sentence, finding that it was not an “appropriate” sentence in this case. However, our supreme court has since found that a sentence over 40 years imposed on a juvenile is, in fact, a life sentence. People v. Buffer, 2019 IL 122327 , ¶ 42 (a sentence “greater than 40 years” is “a de facto life sentence”). The only way that the sentence imposed on DiCorpo could be considered not a life sentence is if one considers only the murder sentence and considers it at 50%. DiCorpo’s murder sentence at 50% was 30 years. However, once the 30-year aggravated arson sentence is added on, then his aggregate sentence, even if considered at 50%, becomes a life sentence—which the trial court specifically declined to impose. ¶ 53 Even though Henney’s aggregate sentence, if considered at 50%, is exactly 40 years, that is only if he receives every single day of good-time credit for which he is eligible. People v. Peacock, 2019 IL App (1st) 170308 , is directly on point. It considered the exact same sentence that Henney received, namely, an 80-year sentence, to be served at 50%. This court 18  Nos. 1-17-2082, 1-17-2253 cons. found that a “defendant’s 80-year sentence, for which he may receive day-for-day credit, constitutes a de facto life sentence.” Peacock, 2019 IL App (1st) 170308 , ¶ 19. This court explained: “Defendant was not sentenced to 40 years’ imprisonment but was instead sentenced to 80 years’ imprisonment with the mere possibility of release after 40 years. Moreover, to serve a sentence of 40 years, he must receive every single day of good conduct credit for which he could be eligible. Defendant’s receipt of day-for-day credit is not guaranteed.” Peacock, 2019 IL App (1st) 170308 , ¶ 19. Thus, the trial court’s finding that a life sentence was not appropriate for these defendants is now in conflict with the sentences that it gave, in light of recent caselaw. See People v. Thornton, 2020 IL App (1st) 170677 , ¶ 21 (rejecting the State’s arguments that “Peacock erred”); People v. Figueroa, 2020 IL App (1st) 172390 , ¶ 35 (“we adhere to Peacock and Thornton”); People v. Daniel, 2020 IL App (1st) 172267 , ¶¶ 23-26 (applying Peacock and Thornton to find that a 70-year sentence was de facto life, even though defendant was eligible for day-for-day good-conduct credit that could “reduce his time served to 35 years”); People v. Quezada, 2020 IL App (1st) 170532 (“We decline to depart from our holding in Peacock.”). ¶ 54 “[A] juvenile defendant may be sentenced to life or de facto life imprisonment, but before doing so, the trial court must ‘determine[ ] that the defendant’s conduct showed irretrievable depravity, permanent incorrigibility, or irreparable corruption beyond the possibility of rehabilitation.’ ” Peacock, 2019 IL App (1st) 170308 , ¶ 22 (quoting People v. Holman, 2017 IL 120655 , ¶ 46); Figueroa, 2020 IL App (1st) 172390 , ¶ 24 (same); People v. Hill, 2020 IL App (1st) 171739 , ¶ 46 (for a “de facto life sentence, the court must find permanent incorrigibility”). Not only did the trial court not make such a finding, it 19  Nos. 1-17-2082, 1-17-2253 cons. contemplated a release date of 63 years old or earlier for these defendants, thereby implicitly finding their capacity for rehabilitation by then. See Mahomes, 2020 IL App (1st) 170895 , ¶ 23 (“the Buffer case *** capped a juvenile defendant’s sentence to 40 years unless the sentencing court specifically finds that such defendant is beyond rehabilitation”). The trial court specifically considered defendants’ “rehabilitative potential” and found Henney’s “rehabilitative potential” greater than DiCorpo’s, thereby meriting a shorter term. However, the court did not find DiCorpo without rehabilitative potential. The court acknowledged that it could give a life sentence for an “incorrigible” defendant but it rejected a life sentence for DiCorpo. Thus, the trial court’s sentence of de facto life for defendants is in conflict with its determination that a life sentence was not warranted. ¶ 55 Finding error, we remand for resentencing before a different trial judge. See Ill. S. Ct. R. 366(a)(5) (eff. Feb. 1, 1994) (a reviewing court may “enter any judgment and make any order *** and grant any relief *** that the case may require”); Ill. S. Ct. R. 615(b)(2) (a reviewing court may “modify any or all of the proceedings subsequent to *** the judgment or order from which the appeal is taken”); Eychaner v. Gross, 202 Ill. 2d 228 , 279 (2002) (the “authority” under Rule 366(a)(5) “includes the power to reassign a matter to a new judge on remand”); People v. Serrano, 2016 IL App (1st) 133493 , ¶ 45 (justice is better service by remanding to a different trial judge under Rule 366(a)(5) when the trial judge “gave lip service to the standard it was supposed to apply”). The trial judge here repeatedly expressed frustration in having to accept these 17-year-old defendants as juvenile offenders. She observed that Henney was “40 days away from turning 18” and DiCorpo was 93 days “away from turning 18” and that, “but for those few days,” defendants “would have been considered adults” and “we would not be sitting here.” The court stated that “all of us know” adults “who don’t use 20  Nos. 1-17-2082, 1-17-2253 cons. the best judgment” while “we know some very mature young people.” The court found that defendants “were closer to being legally adults than they were children in my opinion. But, nonetheless, *** the Supreme Court has told me that someone under 18 is still a child.” ¶ 56 In arguing against the appointment of a different judge, the State relies primarily on People v. Burnett, 2016 IL App (1st) 141033 . However, that case is inapposite. In Burnett, the judge in question was the original trial judge, who had presided over all the proceedings, from jury selection and pretrial motions through a jury trial. See Burnett, 2016 IL App (1st) 141033 , ¶ 44. On remand, the ultimate finding in Burnett was to be made by a jury not the judge. Burnett, 2016 IL App (1st) 141033 , ¶ 52. By contrast, in the case at bar, the judge below did not preside over the trials and had no particular expertise with this case, other than what was presented at the sentencing itself, and the judge is the one who will make the findings on remand, not a jury. ¶ 57 We do not mean to impugn the abilities or conscientiousness of the judge below. Rather we are aware that the law regarding juvenile sentencing has been a rapidly evolving area of the law, and the court below did not have the benefit of our supreme court’s more recent cases in this area such as Buffer and People v. Harris, 2018 IL 121932 , and our own recent cases, such as Peacock, Figueroa, Mahomes, and a long line of other similar cases. Exercising our discretion to remand to a different judge “remove[s] any suggestion of unfairness” from the new sentencing. People v. McAfee, 332 Ill. App. 3d 1091 , 1097 (2002) (remanding for resentencing before a different judge removes any suggestion of unfairness). ¶ 58 We observe that defendant Henney originally filed his pro se postconviction petition concerning his sentence on July 16, 2003, and it is now more than 17 years later. At oral argument before this court, his counsel argued that, if the trial court on remand imposes a 40- 21  Nos. 1-17-2082, 1-17-2253 cons. year cumulative sentence, to be served with eligibility for day-for-day good-time credit, the sentence will have already run prior to resentencing. Thus, we order the trial court and the parties to hold a resentencing hearing speedily. ¶ 59 Although both defendants asked this court at oral argument to consider imposing 40- year aggregate sentences instead of remanding for resentencing, neither defendant asked for this relief in their appellate briefs. As a result, this issue remains unbriefed. We decline to exercise our discretion under Rule 615(b) to impose 40-year aggregate sentences, where we lack relevant and current information, such as defendants’ current IDOC records and current projected release dates. The last sentencing hearing concluded over three years ago, and thus, the information in our appellate record is three years out of date. ¶ 60 CONCLUSION ¶ 61 For the foregoing reasons, we reverse and remand with directions to conduct a resentencing hearing promptly before a different circuit court judge. We encourage the judge to look closely at Buffer. ¶ 62 Reversed and remanded with directions. 22 Nos. 1-17-2082, 1-17-2253 cons. No. 1-17-2082 Cite as: People v. DiCorpo, 2020 IL App (1st) 172082 Decision Under Review: Appeal from the Circuit Court of Cook County, No. 98-CR- 2838; the Hon. Paula M. Daleo, Judge, presiding. Attorneys James E. Chadd, Catherine K. Hart, and Roxanna A. Mason, of for State Appellate Defender’s Office, of Springfield, for appellant Appellant: Dino DiCorpo. James E. Chadd, Patricia Mysza, and Christopher L. Gehrke, of State Appellate Defender’s Office, of Chicago, for appellant Daniel Henney. Attorneys Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J. for Spellberg, Brian A. Levitsky, William Merritt, and Kevin P. Appellee: Nolan, Assistant State’s Attorneys, of counsel), for the People. 23

2020-12-03 22:03:48.01178+00

http://www.illinoiscourts.gov/Opinions/AppellateCourt/2020/4thDistrict/4200043.pdf

FILED 2020 IL App (4th) 200043 December 3, 2020 Carla Bender NO. 4-20-0043 th 4 District Appellate Court, IL IN THE APPELLATE COURT OF ILLINOIS FOURTH DISTRICT NEW PLANET ENERGY DEVELOPMENT LLC, NPE ) Appeal from the HOLDINGS LLC, and NPE STONY POINT LAND ) Circuit Court of LLC, ) Sangamon County Plaintiffs-Appellants, ) No.18L80 v. ) PATRICK MAGEE SR.; PATRICK MAGEE JR.; MBC ) CONTRACTOR, INC.; MBC HOLDING LLC; LLS ) Honorable HOLDING LLC; and KBT PROPERTIES, LTD., ) John W. Belz, Defendants-Appellees. ) Judge Presiding. ______________________________________________________________________________ JUSTICE HARRIS delivered the judgment of the court, with opinion. Presiding Justice Steigmann and Justice DeArmond concurred in the judgment and opinion. OPINION ¶1 In April 2018, plaintiffs—New Planet Energy Development LLC, NPE Holdings LLC, and NPE Stony Point Land LLC—brought a cause of action in the circuit court of Sangamon County, Illinois, against defendants—Patrick Magee Sr.; Patrick Magee Jr.; MBC Contractor, Inc.; MBC Holding LLC; LLS Holding LLC; and KBT Properties, LTD.—alleging breach of contract, breach of the duty of good faith and fair dealing, fraud, and unjust enrichment. In January 2020, the circuit court granted defendants’ motion to dismiss on forum non conveniens grounds, finding Rockland County, New York, was the more appropriate forum. Plaintiffs appeal, arguing the court should not have addressed the merits of defendants’ forum non conveniens motion because it was untimely under Illinois Supreme Court Rule 187 (eff. Jan. 1, 2018) and defendants failed to show “good cause” for extending the filing deadline for their motion pursuant to Illinois Supreme Court Rule 183 (eff. Feb. 16, 2011). Alternatively, plaintiffs contend the relevant public and private interest factors for consideration did not favor granting defendants’ motion and, thus, the court abused its discretion. We reverse and remand for further proceedings. ¶2 I. BACKGROUND ¶3 According to the pleadings, plaintiffs are a group of companies that develop “long-term solutions” for the disposal of municipal solid waste, including “converting post-recycled [municipal solid waste] into renewable solid recovered fuel and clean bio-fuels.” In September 2015, the parties entered into an agreement regarding plaintiffs’ development of a solid waste processing facility on properties owned by defendants in Stony Point, New York (the Stony Point project). ¶4 As indicated, on April 26, 2018, plaintiffs filed their complaint against defendants in the circuit court of Sangamon County. They alleged the parties’ agreement provided for plaintiffs’ purchase of a 50% interest in defendants’ properties through installment payments totaling $3,700,000, and with plaintiffs receiving a pro rata share of ownership of the land based on payments made, a lease option, and defendants’ receipt of a 5% equity interest in plaintiffs’ companies, including “all future projects (NY, NJ, CA and more) ***.” Plaintiffs maintained that, although they performed under the parties’ agreement by paying defendants “$3,600,000 in exchange for ownership and leasehold rights in” defendants’ properties, defendants failed to provide plaintiffs with “anything in return,” including any ownership rights in the subject properties. Plaintiffs sought to recover damages from defendants, restitution for payments they made to defendants, or specific performance under the terms of the parties’ contract. -2- ¶5 In their complaint, plaintiffs additionally alleged they were each organized under Delaware law, with a principal place of business in Springfield, Illinois. They asserted that, collectively, they had “numerous investors, more of whom are from *** Illinois than any other state.” Plaintiffs represented that defendants were either individuals who were New York residents or entities organized under New York law with principal places of business in that state. They maintained that venue was proper in Illinois, asserting the case involved “extensive contacts” with Illinois, including that plaintiffs had more investors from Illinois than any other state; their vice chairman and treasurer, Jay Johnson, resided in Springfield, Illinois, and was “responsible for managing [plaintiffs’] strategy and operations from [their] Springfield place of business”; defendant Patrick Magee Jr. attended at least one meeting with Johnson in Springfield in March 2017 in connection with the Stony Point project; defendants conducted multiple telephone conferences with Johnson in Springfield; and defendants’ agents otherwise communicated extensively with Johnson in Springfield. ¶6 On July 16, 2018, defendants filed a “Consent Motion for Extension of Time to Respond to Plaintiffs’ Complaint.” They alleged their responsive pleading was due that day and requested a 14-day extension of time, to July 30, 2018, to file their pleading. According to defendants, plaintiffs agreed to their request. The record does not contain a ruling on defendants’ motion but does show that they filed their answer on July 30, 2018, along with various affirmative defenses and counterclaims for fraud, tortious interference, breach of contract, and breach of the covenant of good faith and fair dealing. On August 30, 2018, plaintiffs filed motions to strike and dismiss defendants’ affirmative defenses and to dismiss their counterclaims, arguing they were not properly pled. -3- ¶7 On December 7, 2018, defendants filed a “Consent Motion,” seeking leave to file an amended answer, affirmative defenses, and counterclaims to plaintiffs’ complaint. They asserted plaintiffs consented to an amended pleading; attached their amended answer, affirmative defenses, and counterclaims as an exhibit to their filing; and asked the circuit court to enter an order accepting their amended pleading as being filed as of the date of their motion. The record contains neither a court ruling on defendants’ motion nor a file-stamped amended answer, affirmative defenses, and counterclaims. ¶8 Nevertheless, on January 7, 2019, plaintiffs filed a response to defendants’ amended affirmative defenses. On January 10, 2019, they again moved to dismiss defendants’ amended counterclaims. On April 10, 2019, the circuit court conducted a hearing in the matter, at which it granted plaintiffs’ motion to dismiss defendants’ counterclaims but allowed defendants 28 days to refile, i.e., until May 8, 2019. On the date of their refiling deadline, defendants moved for an extension of time to May 15, 2019. The court granted defendants’ motion, and, on May 15, 2019, they filed their second amended counterclaims. Once again, plaintiffs moved to dismiss defendants’ counterclaims. ¶9 On September 3, 2019, while plaintiffs’ motion to dismiss defendants’ second amended counterclaims was pending, defendants filed a motion to dismiss plaintiffs’ complaint on forum non conveniens grounds. They maintained the parties’ dispute was “only tenuously connected to Sangamon County, Illinois” and, instead, should be litigated in Rockland County, New York. Defendants argued relevant factors for consideration favored New York as the proper forum over Illinois, asserting they had no ties to Illinois and were New York residents or entities organized under New York law; plaintiffs lacked a central location in that they were organized -4- under Delaware law, utilized a California address on both an application related to the Stony Point project and their website, and had individual members that were “scattered across the United States, including within New York”; plaintiffs’ representatives made numerous trips to New York in connection with the Stony Point project and regularly and consistently conducted business out of an office located on one of defendants’ New York properties; plaintiffs instituted actions in New York “by placing Notices of Pendency against” the properties at issue; the subject matter of the case concerned the purchase and development of New York property; and relevant evidence and all nonparty witnesses were located in New York. ¶ 10 Defendants also anticipated that plaintiffs would challenge their forum non conveniens motion as untimely under Illinois Supreme Court Rule 187(a) (eff. Jan. 1, 2018). They argued, however, that their motion should be “considered as timely” because their “responsive pleading” to plaintiffs’ complaint remained unsettled due to the “cycle” of motions to dismiss and amendments that had occurred in connection with their affirmative defenses and counterclaims. They asserted the 90-day time limit for filing a forum non conveniens motion set forth in Rule 187(a) should not begin to run until the circuit court denied plaintiffs’ motion to dismiss their second amended counterclaims. Alternatively, defendants argued that the circuit court could relax Rule 187(a)’s time requirements under Rule 183 for “good cause” shown. They maintained they met that standard because the case was “still in the pleading stage and had not progressed beyond [their] [a]nswer.” ¶ 11 Defendants attached various documents to their forum non conveniens filing, including answers to interrogatories they received from plaintiffs that contained information regarding the location of plaintiffs’ members. Plaintiffs’ interrogatory answers were sent -5- electronically to defendants’ counsel on February 28, 2019. ¶ 12 As defendants anticipated, plaintiffs responded to defendants’ motion to dismiss on forum non conveniens grounds by arguing it was untimely under Rule 187(a). They asserted defendants presented no case authority to support the claim that “amending over counterclaims when the complaint ha[d] not changed can perpetually restart [d]efendants’ deadline to file a motion based on the doctrine of forum non conveniens.” Plaintiffs also maintained that any lack of progress in the case (1) was occasioned by defendants through discovery disputes and the repeated amendments of their counterclaims and (2) could not serve as a basis for “relax[ing]” the 90-day time limit set forth in Rule 187(a). Alternatively, plaintiffs argued that the factors relevant to a determination of a forum non conveniens motion did not weigh in favor of dismissing their complaint. ¶ 13 On September 17, 2019, the circuit court conducted a hearing in the matter, and the parties presented argument regarding the timeliness of defendants’ forum non conveniens motion. At the hearing, defendants acknowledged that the 90-day time period set forth in Rule 187(a) for the filing of such motions had expired but asserted that the pleadings in the case had not been “finalized” and, pursuant to Rule 183, the court had discretion to extend the filing deadline. As a basis for their delay in filing, defendants maintained they had been unaware of plaintiffs’ Illinois contacts and “asked for limited discovery” regarding plaintiffs’ members and their connection with Illinois. They asserted that after finding such contacts “d[id]n’t exist,” they filed their forum non conveniens motion. ¶ 14 Plaintiffs argued that defendants’ motion was clearly untimely, noting that, not only was it not filed within 90 days of defendants’ original answer, but it was also not filed within 90 -6- days of either of defendants’ amended filings. They also asserted that relevant case authority did not support defendants’ assertion that “new discovery” extends the filing deadline under Rule 187. Further, plaintiffs pointed out that they responded to defendants’ “limited discovery” requests in February 2019, more than six months before defendants ultimately filed their forum non conveniens motion. ¶ 15 The circuit court took the matter under advisement and allowed the parties time to submit additional case authority on the timeliness issue. On October 15, 2019, the court made a docket entry, setting forth its determination that defendants had not “waived” their right to proceed on their forum non conveniens motion. It stated as follows: “The Case has not progressed beyond the pleading stage and the Limited Discovery appears to have focused on the Plaintiff’s [sic] ties to Illinois. The Court finds under the special facts of this Case it is appropriate to exercise its equitable powers to extend the Deadline to allow the Defendants to file their Motion and conduct a hearing as to whether Sangamon County is the proper forum.” ¶ 16 On December 3, 2019, the circuit court conducted a hearing to address the merits of defendants’ forum non conveniens motion. Following argument by the parties, the court granted the motion. On January 6, 2020, the court entered a written order granting defendants’ motion to dismiss without prejudice and “subject to [plaintiffs’ complaint] being refiled in the Supreme Court of the State of New York, Rockland County within six months.” ¶ 17 This appeal followed. ¶ 18 II. ANALYSIS ¶ 19 On appeal, plaintiffs argue the circuit court erred by granting defendants’ -7- forum non conveniens motion. They contend the court should not have addressed the merits of the motion because it was untimely under the 90-day limitation set forth in Rule 187 and defendants failed to show “good cause” for extending the filing deadline under Rule 183. As stated, plaintiffs alternatively argue the court abused its discretion in granting the motion because the relevant forum non conveniens factors did not favor the dismissal of their complaint. ¶ 20 Before addressing the issues raised on appeal relative to defendants’ forum non conveniens motion, we are compelled to comment on the procedure undertaken by defendants below when seeking an extension of the filing deadline for their initial answer and leave to file their amended answer. In both instances, defendants filed what they titled a “Consent Motion,” which ostensibly sought leave of the circuit court for their desired action and contained an allegation that plaintiffs had no objection. However, the record fails to reflect defendants ever obtained a ruling on either motion. Further, we note defendants’ amended answer appears only as an exhibit to their second “Consent Motion” rather than as an independently filed document. We caution that this is a dubious practice and one that casts doubt on the proper filing of their pleadings. Nevertheless, because the court and the parties proceeded as if defendants’ motions were allowed and because the matter is not at issue on appeal, we will decide the issues presented assuming both defendants’ answer and amended answer were properly filed. ¶ 21 Turning to the merits of plaintiffs’ appeal, we note “[f]orum non conveniens is an equitable doctrine founded in considerations of fundamental fairness and the sensible and effective administration of justice.” Langenhorst v. Norfolk Southern Ry. Co., 219 Ill. 2d 430 , 441, 848 N.E.2d 927 , 934 (2006). The doctrine assumes that more than one forum has the authority to hear a case and allows a court to decline jurisdiction “if it appears that another forum can better serve -8- the convenience of the parties and the ends of justice.” Fennell v. Illinois Central R.R. Co., 2012 IL 113812 , ¶ 12, 987 N.E.2d 355 . Under Rule 187(a), “[a] motion to dismiss or transfer the action under the doctrine of forum non conveniens must be filed by a party not later than 90 days after the last day allowed for the filing of that party’s answer.” Ill. S. Ct. R. 187(a) (eff. Jan.1, 2018). ¶ 22 “When construing a rule of the supreme court, a court’s primary goal is to ascertain and give effect to the intent of the drafters.” Ferris, Thompson & Zweig, Ltd. v. Esposito, 2017 IL 121297 , ¶ 22, 90 N.E.3d 400 . “The most reliable indicator of that intent is the language used, given its plain and ordinary meaning.” Id. Here, the plain language of Rule 187(a) is clear and unambiguous, providing that “the 90-day time limit is triggered by the deadline set for ‘the last day allowed for the filing of’ ” the moving party’s answer. Miller v. Consolidated Rail Corp., 173 Ill. 2d 252 , 259-60, 671 N.E.2d 39 , 43-44 (1996) (finding Rule 187(a) did not proscribe consideration of the defendants’ forum non conveniens motion where “the circuit court did not set a deadline for the filing of [the] defendant’s answer, and *** [the] defendant did not file an answer”) (quoting Ill. S. Ct. R. 187(a) (eff. Aug. 1, 1986)). ¶ 23 The record in this case indicates July 30, 2018, was “the last day allowed for the filing” of defendants’ answer to plaintiffs’ complaint. Further, defendants, in fact, filed their answer on that date. Their motion to dismiss on forum non conveniens grounds was not filed until more than a year later, on September 3, 2019. ¶ 24 On appeal, defendants argue that Rule 187(a)’s “90-day clock” never started because their “responsive pleading was still unsettled.” They note plaintiffs objected to affirmative defenses and counterclaims contained within their original answer, amended counterclaims contained within their amended answer, and their second amended counterclaims. Also, they -9- argue, plaintiffs’ motion to dismiss their second amended counterclaims remained pending at the time they filed their forum non conveniens motion. ¶ 25 We note, however, that defendants ultimately fail to cite any legal authority to support their contention that the relevant 90-day period is paused until the resolution of a pending challenge to a defendant’s answer or, as in this case, a defendant’s second amended counterclaims. The rule clearly does not provide for such a tolling period. Instead, as stated, “the 90-day time limit is triggered by the deadline set for ‘the last day allowed for the filing of’ ” the moving party’s answer. (Emphasis added.) Id. at 259 (quoting Ill. S. Ct. R. 187(a) (eff. Aug. 1, 1986)). ¶ 26 Additionally, the plain and explicit language of Rule 187(a) refers only to the last day allowed for the filing of a moving “party’s answer,” not an amended answer or other filing. Ill. S. Ct. R. 187(a) (eff. Jan. 1, 2018). Certainly, where the circuit court grants a defendant an extension of time for the filing of his or her answer, Rule 187(a)’s 90-day time limit would not begin to run until the last day of that extended deadline. Also, Rule 187(a) has been held to refer to a defendant’s “answer” to a plaintiff’s “amended complaint” that raises new matter in a case. See Ellis v. AAR Parts Trading, Inc., 357 Ill. App. 3d 723 , 738, 828 N.E.2d 726 , 739 (2005) (“[A] new challenge to forum is appropriate when new matter, new parties, or new causes of action or theories are brought forth in an amended complaint.”). However, to permit a restarting of the 90- day period in Rule 187(a) any time a defendant files an amended pleading could easily result in the filing of a forum non conveniens motion long after the parties have otherwise engaged in substantial litigation in a case. See 735 ILCS 5/2-616(a) (West 2016) (permitting amendments by parties “[a]t any time before final judgment *** on just and reasonable terms”). Such an interpretation would thwart the purpose of Rule 187(a), which is “to provide for the timely filing - 10 - of motions on forum non conveniens grounds.” Ill. S. Ct. R. 187, Committee Comments (rev. Feb. 21, 1986). ¶ 27 Moreover, even if we were to find that a defendant’s amended pleadings are contemplated by Rule 187(a), defendant’s forum non conveniens motion in the instant case would still be untimely under the rule. Specifically, defendants’ September 3, 2019, forum non conveniens motion was filed in excess of 90 days after both their December 7, 2018, amended answer and the May 15, 2019, filing deadline for their second amended counterclaims. Accordingly, we agree with plaintiffs and find defendants’ motion to dismiss based on the doctrine of forum non conveniens was untimely filed under Rule 187(a). ¶ 28 On appeal, defendants alternatively concede that the 90-day period for filing their forum non conveniens motion had “technically expired” but argue that the circuit court had authority under Rule 183 to extend that 90-day deadline. They maintain the court appropriately exercised that authority in this case. Plaintiffs respond that the court abused its discretion by granting defendants an extension of time under Rule 183 because defendants failed to meet the requirements of that rule. We agree with plaintiffs. ¶ 29 Rule 183 provides: “The court, for good cause shown on motion after notice to the opposite party, may extend the time for filing any pleading or the doing of any act which is required by the rules to be done within a limited period, either before or after the expiration of the time.” Ill. S. Ct. R. 183 (eff. Feb. 16, 2011). “[T]he plain language of Rule 183 specifically makes good cause a prerequisite to relief, and that the burden of establishing good cause rests on the party seeking relief under Rule 183.” Vision - 11 - Point of Sale, Inc. v. Haas, 226 Ill. 2d 334 , 353, 875 N.E.2d 1065 , 1078 (2007). ¶ 30 To be entitled to a deadline extension under Rule 183, the moving party “must submit to the court clear, objective reasons why it was unable to meet the original deadline and why an extension of time should be granted.” Id. at 347-48 . “The circuit court may receive evidence with respect to whether the party’s original delinquency was caused by mistake, inadvertence, or attorney neglect, but may not engage in an open-ended inquiry which considers conduct that is unrelated to the causes of the party’s original noncompliance.” Id. at 353 . Consequently, “issues dealing with the nonmoving party—such as whether the nonmovant was inconvenienced or suffered prejudice—[are] not the proper inquiry in ruling on a Rule 183 motion.” Id. at 350 . In other words, “good cause is not synonymous with the nonmovant’s lack of harm.” Id. ¶ 31 Ultimately, what constitutes good cause under Rule 183 “is fact-dependent and rests within the sound discretion of the circuit court.” Id. at 353 . “Absent an abuse of discretion, the decision of the circuit court on this issue will not be disturbed.” Id. at 354 . ¶ 32 Here, both before the circuit court and on appeal, defendants have suggested that good cause existed for an extension of time to file their forum non conveniens motion under Rule 183 because (1) factors relevant to a determination of the most appropriate forum overwhelmingly favored their choice of forum, New York, (2) the underlying litigation had not progressed beyond the pleading stage, and (3) they delayed in filing their motion due to the need to conduct discovery to determine plaintiffs’ Illinois contacts. Further, the circuit court appears to have relied on at least the last two bases in allowing the late filing of defendants’ motion, noting in its ruling that “[t]he Case ha[d] not progressed beyond the pleading stage” and defendants conducted “Limited - 12 - Discovery” that appeared “to have focused on the Plaintiff’s [sic] ties to Illinois.” Ultimately, although there is no doubt that Rule 183 may be applied to extend the 90-day filing deadline set forth by Rule 187(a), we find none of defendants’ asserted bases was sufficient to establish good cause for such an extension in this case. ¶ 33 As stated, the party seeking to extend a filing deadline under Rule 183 “must submit to the court clear, objective reasons why it was unable to meet the original deadline and why an extension of time should be granted.” Id. at 347-48 . Defendants do not claim that either the ultimate alleged merit of their forum non conveniens motion or the unresolved challenge to their counterclaims resulted in their inability to comply with the 90-day time limit set forth in Rule 187(a). We can find no logical nexus between those asserted bases and defendants’ noncompliance with the rule. Further, defendants’ repeated assertions that the litigation between the parties remained in the “pleading stage” essentially amounts to an assertion that plaintiffs would not be harmed or prejudiced by a deadline extension. However, as discussed, whether plaintiffs would be inconvenienced, harmed, or suffer prejudice from an extension of time is “not the proper inquiry in ruling on a Rule 183 motion.” Id. at 350 . ¶ 34 Additionally, although defendants suggest they delayed in filing their forum non conveniens motion due to the need to conduct discovery and obtain information related to plaintiffs’ members, as plaintiffs point out, Rule 187(b) specifically provides that “[h]earings on motions to dismiss or transfer the action under the doctrine of forum non conveniens shall be scheduled so as to allow the parties sufficient time to conduct discovery on issues of fact raised by such motions.” Ill. S. Ct. R. 187(b) (eff. Jan. 1, 2018). In this instance, the record reflects defendants had knowledge of most of the facts relevant to, and ultimately alleged in, their - 13 - forum non conveniens motion from the outset of the case. For example, prior to conducting any discovery, defendants knew of their own lack of Illinois contacts, plaintiffs’ claims regarding their Illinois contacts as alleged in their complaint, plaintiffs’ prior utilization of a California address, and the underlying circumstances of the Stony Point project in New York. They provide no reason why they could not have timely filed their forum non conveniens motion based on the information they already possessed and, thereafter, conduct “limited discovery” on specific factual issues related to their motion. ¶ 35 Moreover, the record shows that the discovery request that defendants argue occasioned their delay was responded to by plaintiffs in February 2019, over six months before defendants’ forum non conveniens motion was filed. Defendants provide no excuse for that six-month delay in filing. Given these circumstances, defendants have failed to meet their burden of establishing good cause under Rule 183. ¶ 36 Finally, the case authority cited by defendants on appeal is inapposite. Defendants rely most heavily on In re Marriage of Clark, 232 Ill. App. 3d 342 , 597 N.E.2d 240 (1992). There, the parties’ dissolution case was commenced in Illinois, where both resided. Id. at 344 . Prior to trial in October 1989, the husband moved to Massachusetts. Id. In November 1989, a judgment of dissolution was entered. Id. In December 1989, the wife, who largely refused to participate in the proceedings, also moved to Massachusetts. Id. at 345 . The same month, she moved to vacate the trial court’s judgment, alleging she was mentally ill and failed to comprehend the meaning of the dissolution proceedings. Id. In November 1990, the court granted the wife’s motion, vacated the dissolution judgment, ordered a new trial, and allowed the wife 14 days to file an amended answer to the husband’s dissolution petition. Id. Within the time allotted for filing her amended answer, - 14 - the wife moved for a dismissal on forum non conveniens grounds, alleging Massachusetts was the more appropriate forum. Id. The court granted the wife’s motion, and the husband appealed. Id. at 346 . ¶ 37 On review, the Second District affirmed the trial court’s judgment and rejected the husband’s argument that the wife’s forum non conveniens motion was untimely under Rule 187. Id. at 350 . In so holding, it declined “to read Rule 187 as an absolute prohibition against filing such a motion beyond the limit prescribed, particularly in light of Supreme Court Rule 183.” Id. Regarding the specific facts of the case before it, the court noted the following: “It is true that, when the instant cause commenced, there were not yet two appropriate forums and so there would have been no basis for a forum non conveniens motion. It was only when the parties all subsequently moved to Massachusetts and the court ordered a new trial that the convenience of Massachusetts as the second forum became evident. [The wife’s] motion for dismissal was made very shortly after the court granted the new trial.” Id. It concluded that “[t]he court’s act in allowing [the wife] to file her forum non conveniens motion was within the discretion afforded it under Rule 183, and, therefore, *** it was timely filed.” Id. ¶ 38 The circumstances of the present case are obviously distinguishable from Clark. Although in Clark the wife’s forum non conveniens motion was not filed within the time limits of Rule 187, relief was appropriate under Rule 183 due to changed circumstances in the case that raised, for the first time, the issue of a second appropriate forum. Significantly, the wife also filed her forum non conveniens motion “very shortly” after those changed circumstances became “evident.” Here, the question of more than one appropriate forum—Illinois or New York—was - 15 - present at the outset of the case, and thus, a basis for the filing of a forum non conveniens motion existed at all times during the underlying proceedings. There simply was no change in circumstances relative to the forum non conveniens issue. Accordingly, Clark does not support the timeliness of defendants’ motion in this case. Other cases defendants rely upon are similarly distinguishable. See Eads v. Consolidated Rail Corp., 365 Ill. App. 3d 19 , 29, 847 N.E.2d 601 , 611 (2006) (finding that a “new set of circumstances,” including the grant of a new trial without Illinois parties who were previously involved in the case, warranted “renewed consideration of whether Illinois was” the most appropriate forum); Chochorowski v. Home Depot U.S.A., Inc., 376 Ill. App. 3d 167 , 171-72, 875 N.E.2d 682 , 687 (2007) (holding a forum non conveniens motion was timely based on an amendment to the complaint that “changed the cause of action under which the plaintiff was proceeding to a cause of action under the Missouri statute,” a matter of “major relevance to the issue of forum non conveniens,” and where the court’s order granting the motion to amend the complaint did not set a deadline for the defendants’ answer or responsive pleading). ¶ 39 Here, we do not dispute that the doctrine of forum non conveniens is an equitable one or that, in the circuit court’s discretion and under appropriate circumstances, e.g., where good cause is established, Rule 183 may be applied to extend the 90-day filing deadline set forth in Rule 187(a). However, “equity aids the vigilant and not those who sleep on their rights.” Bell v. Louisville & Nashville R.R. Co., 106 Ill. 2d 135 , 146, 478 N.E.2d 384 , 389 (1985). In this case, defendants failed to comply with Rule 187(a)’s filing deadline and otherwise failed to establish “good cause” under Rule 183 for their noncompliance. As a result, we find defendants’ motion to dismiss plaintiffs’ complaint based on forum non conveniens was untimely and the circuit court abused its discretion in considering and granting the motion. - 16 - ¶ 40 III. CONCLUSION ¶ 41 For the reasons stated, we reverse the circuit court’s judgment and remand for further proceedings. ¶ 42 Reversed and remanded. - 17 -  No. 4-20-0043 Cite as: New Planet Energy Development LLC v. Magee, 2020 IL App (4th) 200043 Decision Under Review: Appeal from the Circuit Court of Sangamon County, No. 18-L- 80; the Hon. John W. Belz, Judge, presiding. Attorneys William P. Hardy and Russell Reed, of Hinshaw & Culbertson for LLP, of Springfield, and Donald Flack and Laura A. Bentele, of Appellant: Armstrong Teasdale LLP, of St. Louis, Missouri, for appellants. Attorneys Robert L. Duckels and David P. Niemeier, of Greensfelder, for Hemker & Gale, P.C., of St. Louis, Missouri, and Brian L. Appellee: Gardner (pro hac vice), of Cole Schotz, P.C., of New York, New York, for appellees. - 18 -

2020-01-17 22:02:13.875631+00

Murdock

*961OPINION. Murdock: The respondent disallowed the deduction of $5,000 as a loss on stock during the taxable year 1923 and based his action upon the ground that the loss was actually sustained in a prior taxable year. There is no evidence in the record as to this issue and it has apparently been abandoned. We approve the determination of the Commissioner as to this disallowance. Gilbert W. Lee, 8 B. T. A. 951; Paul N. Myers, 7 B. T. A. 1072; Davis Co., 6 B. T. A. 281; Volker v. United States, U. S. Dist. Ct., W. Dist Mo., decided Nov. 20, 1929. The petitioner claims that the dividends on the stocks enumerated in the contract of September 26, 1911, were the taxable income of Catherine Bettendorf and were returned as such, and that the action of the Commissioner in including such dividends in his income was wrongful. The respondent based his action upon the express terms of the. contract of September 26,1911. *962The instrument signed by Catherine Bettendorf on September 26, 1911, conveyed the personalty described therein to the petitioner. Catherine Bettendorf, the mother of the petitioner, having inherited from her deceased son certain shares of stock, most of which were in in the Bettendorf Axle Co., discussed the disposition of such stock after her death with the petitioner. Although there had been no legal adoption of the cousin of the petitioner who had been living in the home of the petitioner’s mother, both the petitioner and his mother felt that there might be some claim by the cousin upon her estate and to avoid such claim and to assure the petitioner that he would receive the stocks listed in the contract, the shares of stock were conveyed and actually delivered to him on September 26, 1911. The transfer was complete both as to the written instrument and the manual delivery of the stock certificates. The petitioner then had the stocks transferred to his name on the books of the several corporations, thereby placing such stocks under his absolute control. Thereafter, dividends were paid to the petitioner, since he was the stockholder of record, and he in turn paid his mother an amount equal to the amount of the dividends. The instrument stipulates that “As a part consideration * * * J. W. Bettendorf is to pay to Catherine Bettendorf and M. Betten-dorf the certain amounts as hereinafter stated and at the time hereinafter specified.” The instrument then sets forth that the petitioner “ will pay to Catherine Bettendorf * * * all earnings * * * paid to him on any or all of the shares of stock * * * as soon after their receipt by J. W. Bettendorf as is practicable.” Upon the death of Catherine Bettendorf one-half of such earnings were to be paid to M. Bettendorf; there was no direction as to the other half, but the presumption is that the petitioner was to retain that half. The “ obligation * * * to make such payment ” ceased upon the death of both Catherine Bettendorf and M. Bettendorf. The instrument further permits the petitioner to convert or sell any or all of the stocks and in lieu of dividends on such stocks sold or converted, he was to pay “ a sum equal to the rate of interest paid by savings banks on savings deposits in * * * Davenport * * * Iowa.” The only conclusion that we can reach regarding the income from the shares of stock conveyed to the petitioner by Catherine Betten-dorf is that even though he paid this income over to his mother, he was first the recipient of that income and it is taxable as his income. In a similar case, Alfred Le Blanc, 7 B. T. A. 256, we said: The petitioner was himself the stockholder and continued to own the stock. Notwithstanding the reguest to do so, he refused to give it to his son because he wanted to control its disposition, an important attribute of ownership. His *963direct purpose was to augment Ms son’s income for Ms part in the success of the corporation — -not to make the son a stockholder, but to let him benefit, through the petitioner, by its earnings. The son received no dividends, because between him and the corporation there was no such relation as entitled Mm to a dividend. Only stockholders were entitled to dividends, and even although the amount was the same, his right to it was not derived from any of the considerations which apply to stockholders, but from a separate agreement with one other than the corporation. As between Mm and the corporation he had not even that inchoate interest in earnings which a stockholder has before dividend declared. All of the attributes and incidents of a stockholder were continued in the petitioner. The significance and importance of this is clear when it is remembered that the individual stockholder taxpayer is freed from normal tax upon his dividends. This is upon the theory that, after all, the incidence of the corporation income tax is ultimately upon the stockholders, and Congress has to this extent lightened their tax burden. But it is hardly arguable that this legislative intent carried beyond the stockholders to anyone who might be collaterally or indirectly interested in the corporation’s earnings. It is the stockholder who gets the dividend and he alone who may have the normal-tax credit. See also Ormsby McKnight Mitchel, 1 B. T. A. 143; Samuel V. Woods, 5 B. T. A. 413; Ella Daly King, Executrix, 10 B. T. A. 698; Arthur H. Van Brunt, 11 B. T. A. 406; Julius Rosenwald, 12 B. T. A. 350; 33 Fed. (2d) 423; certiorari denied, 280 U. S. 77A; Fidelity-Philadelphia Trust Co., 16 B. T. A. 1214; Irene McFadden Winder, Executrix, 17 B. T. A. 303; Rensselaer & Saratoga Railroad Co. v. Irwin, 239 Fed. 739; affd., 249 Fed. 726; certiorari denied, 246 U. S. 671; Bing v. Bowers, 22 Fed. (2d) 450; affd., 26 Fed. (2d) 1017. Judgment will be entered for the respondent.

2020-01-17 22:02:13.912043+00

Littleton

*99OPINION. Littleton: Since the year 1917 only is before us, and since it appears that the statute of limitations question is determinative of petitioner’s liability for the entire proposed deficiency for that year, we have omitted from our findings many of the facts relating solely to the question of the correctness of the Commissioner’s computation. The statute of limitations issue before us involves an additional tax for 1917 which was assessed in December, 1921, but which has not yet been collected, and our question is whether the collection of this tax is barred. At the time the assessment was made, the Revenue Act of 1921 was in effect, which provided in section 250 (d) for a five-year period for the assessment of taxes for 1917 and since this assessment was made in December, 1921, it was timely made. Collection, however, was not made at that time, and no agreement in writing was entered into between the petitioner and the Commissioner prior to February 25, 1926, extending the time when collection might be made. An instrument was executed on February 25, 1926, when collection had not yet been made, which purported to extend the time for collection, but prior to its execution we have a situation parallel to that existing in the case of Benjamin Russell v. United States, 278 U. S. 181, wherein a valid assessment was made under the 1921 Act and collection was sought after the passage of the 1924 Act, under the provisions of section 278 (d) of the latter Act, which provided for a six-year period for collection after assessment. The aforementioned case held that section 278 (d) of the Revenue Act of 1924 had no application to assessments made prior to the enactment of the 1924 Act, and that since the tax in question had not been collected within the five-year period provided in the 1921 Act (there being no question as to the execution of consents to a later collection), the collection of the tax was barred. The case of Benjamin Russell v. United States, supra, differs from the case at bar only in that, prior to the enactment of the Revenue Act of 1926, the petitioner executed an instrument which purported to extend the time for collection to December 31, 1927, and our question is as to the effect of this instrument. In disposing of the question thus presented, it is pertinent to observe that the 1924 Act made no provision for an agreement in writing between the taxpayer and the Commissioner for a later collection of tax (Sunshine Cloak & Suit Co., 10 B. T. A. 971), and that the provisions governing the collection of taxes assessed prior to the 1924 Act and while the 1921 Act was in effect would be those provided for *100by the latter Act (Benjamin Russell v. United States, supra). The 1921 Act, section 250 (d) provides, in so far as here pertinent, that taxes for 1917 “ shall be determined and assessed within five years after the return was filed, unless both the Commissioner and the taxpayer consent in writing to a later determination, assessment, and collection of the tax; and no suit or proceeding for the collection of any such taxes due under this Act or under prior income, excess-profits, or war-profits tax Acts, or of any taxes due under section 38 of such Act of August 5, 1909, shall be begun, after the expiration of five years after the date when such return was filed * * (Italics supplied.) Leaving out of consideration the sections dealing with false and fraudulent returns and other special situations, none of which are here applicable, it would follow that the collection of the deficiency involved in this proceeding is barred unless the instrument executed on February 25, 1926, satisfied the requirement for a later collection. We are of the opinion that it does not meet the specific test laid down by the statute for the reason that it is only a consent in writing by the petitioner and not by the petitioner and the Commissioner. On its face it does not purport to be more than an instrument in which the petitioner would consent to a later collection without any signing or “ writing ” on the part of the Commissioner. And there is no evidence that there was a written request on the part of the Commissioner that the petitioner sign the instrument, but, on the contrary, the best recollection of the individual who signed for the petitioner was that a representative of the Commissioner called at his office, requested that the instrument be signed and later came to get it after the petitioner’s signature was attached thereto. In our opinion, an instrument thus signed only by the taxpayer does not meet the requirements of the statute for a consent in writing between the taxpayer and the Commissioner, and the collection of the deficiency is accordingly barred. Everett B. Moore, Administrator, 17 B. T. A. 314; Chadbourne & Moore, 16 B. T. A. 961. See sec. 284 (g), Revenue Act of 1926. The agreement executed on December 8, 1926, and set forth in our findings is, of course, ineffective, since at the time of its execution the Revenue Act of 1926 was in effect, which provided in section 1106 (a) that “ The bar of the statute of limitations against the taxpayer in respect of any internal-revenue tax shall not only operate to bar the remedy but shall extinguish the liability.” United States v. John Barth Co., 27 Fed. (2d) 782; Peerless Woolen Mills, 13 B. T. A. 1119. See, also, Pepsin Syrup Co. v. Schwaner, 35 Fed. (2d) 197. Reviewed by the Board. Judgment will be entered for the petitioner.

2020-12-03 22:03:48.570852+00

http://www.illinoiscourts.gov/Opinions/AppellateCourt/2020/1stDistrict/1191762.pdf

2020 IL App (1st) 191762 FIRST DISTRICT FOURTH DIVISION December 3, 2020 No. 1-19-1762 ) Appeal from the IN RE THE PARENTAGE OF M.V.U.: ) Circuit Court of ) Cook County Rocio Montes, ) ) Petitioner-Appellee, ) ) No. 18 D 79090 v. ) ) Jose Guadalupe Ignacio Ulloa Toscano, ) ) Honorable ) Mary S. Trew, Respondent-Appellant. ) Judge Presiding. ) JUSTICE REYES delivered the judgment of the court, with opinion. Justices Hall and Lampkin concurred in the judgment and opinion. OPINION ¶1 We begin by acknowledging the unique procedural posture of this case. This matter commenced as a parentage action in the circuit court of Cook County filed by petitioner, Rocio Montes (Rocio), against respondent Jose Guadalupe Ignacio Ulloa Toscano (Jose) seeking an acknowledgement of parentage and child support for their daughter M.V.U. During the pendency of the parentage petition, however, Jose filed a petition to return his daughter under the Hague Convention ( 22 U.S.C. § 9001 ) (Hague petition) and the Uniform Child Custody 1-19-1762 Jurisdiction and Enforcement Act (UCCJEA) (750 ILCS 36/201 (West 2018)). As a result, the parentage petition was stayed while litigation proceeded on the Hague petition. After an evidentiary hearing, the circuit court determined that while Rocio wrongfully removed M.V.U. from Mexico, Rocio proved by clear and convincing evidence that she was justified in doing so because the child was subject to a grave risk of harm. Jose now appeals this ruling, arguing that the circuit court erred in its determination where the evidence failed to demonstrate that Rocio met her burden. Because we conclude there was clear and convincing evidence supporting this defense, we affirm the judgment of the circuit court. ¶2 BACKGROUND ¶3 For the purposes of the issue on appeal, we recite only those facts relevant to the disposition of the case. ¶4 Rocio (a citizen of Mexico and the United States) and Jose (a citizen of Mexico) had a daughter together, M.V.U. (a citizen of Mexico and the United States), in 2014. The parties were never married. The child was born and resided in Guadalajara, Jalisco, Mexico until September 29, 2017, when Rocio moved to Chicago with the child. ¶5 On January 19, 2018, Rocio filed a petition in the circuit court to establish parentage, custody, and child support as well as permission to change her daughter’s name. ¶6 After being served with the parentage petition, Rocio obtained a default judgment. Two days before the matter was set for prove up, Jose filed a motion to vacate the default judgment order. On July 11, 2018, Jose was granted 30 days to file a response or otherwise plead to Rocio’s parentage petition. 1 In August 2018, Jose filed a Hague petition entitled “Verified 1 We observe that the order granting Jose leave to respond to the petition did not expressly vacate the default judgment. No order vacating this judgment is included in the record on appeal. -2- 1-19-1762 Petition for Return of Child Under the Hague Convention on the Civil Aspects of International Child Abduction and the International Child Abduction Remedies Act” in August 2018. Jose alleged he is the child’s father and the child was wrongfully taken by Rocio from her habitual residence in Guadalajara, Jalisco, Mexico on September 29, 2017, and now resides in Chicago with Rocio. Jose further alleged that he has was living with the child at the time she was removed from Mexico and has exercised custody rights over her since her birth. The court stayed Rocio’s parentage petition until further order of court. 2 ¶7 On September 12, 2018, Rocio filed an answer to the Hague petition as well as affirmative defenses. Pertinent to this appeal, Rocio denied that Mexico was the child’s habitual residence and that Jose was carrying out his responsibilities towards their daughter. Rocio asserted three affirmative defenses; however, the affirmative defense at issue in this appeal is the grave risk exception under Article 13(b) of the Hague Convention. In regard to that affirmative defense, Rocio alleged Jose was verbally, emotionally, and physically abusive towards her while they were living together in Mexico. She asserted three specific allegations of abuse. The first allegation involved a March 2017 argument where Jose grabbed her by the neck while she was holding their two-year-old child and choked her. Rocio asserted that her aunt, Maria de Lourdes Lozano Flores (Flores), heard her cry out and witnessed Jose choking her. The second allegation occurred in January 2016 where the parties were arguing and Jose yelled, “If you move back to Chicago, I’ll kill you first before you take my baby.” The final allegation was that in August 2017, the parties argued over Rocio’s desire to work outside of the home and have the child attend school. According to Rocio, Jose refused to allow her to leave the home to work. 2 Article 16 provides that “until it has been determined that the child is not to be returned under the Convention,” the state to which the child has been removed “shall not decide on the merits of rights of custody.” Hague Convention, art. 16. -3- 1-19-1762 ¶8 In support of her affirmative defenses, Rocio attached affidavits from her family members. Each of these affidavits was written in Spanish and was accompanied by a notarized certificate of translation. The first affidavit was from Flores, Rocio’s aunt. She attested that she resided next door to Rocio in Mexico and she was able to hear the arguments she and Jose had. In April 2017, she heard “a lot of yelling” coming from Rocio’s home and she went into the house to see what was happening. When she came in “[Rocio’s] boyfriend Jose Guadalupe Ignacio Ulloa Toscano was holding her by the neck trying to choke her and as soon as he saw me he let her go.” She further attested that she “often would hear how he would threaten [Rocio] with not letting her go to work or take her daughter to her sister’s house for visits, nor take her to Chicago with her family. His phrase was always ‘calale’ (try me). Letting her know that if she contradicted him, there would be consequences. He always tried to manipulate her, and everything was bad to Jose ***.” ¶9 Rocio’s uncle, Jose Santana Lopez, also submitted an affidavit in which he averred he helped take Rocio to the airport on September 29, 2017, at 3:30 a.m. “since she had to flee the mistreatments of her boyfriend Jose.” ¶ 10 Rocio’s sister, Cynthia Lizette Montes Lozano, averred that Rocio and Jose “have always been fighting.” Jose did not let Rocio work, even when he was unemployed and was mad when Rocio went to work as an English teacher. According to Cynthia, “On several occasions my sister Rocio Montes would kick her boyfriend Jose Guadalupe Ignacio Ulloa Toscano out of the house because they would fight daily, and she didn’t want her daughter to witness daily fights and mistreatments.” ¶ 11 Rocio’s grandfather, Jose Gilberto Montes Duenas (Duenas), averred that he resides in Chicago and has a vacation home in Guadalajara, Jalisco, Mexico. Between May 24, 2015, and -4- 1-19-1762 September 29, 2017, he loaned his vacation home to Rocio so she could live there with the child. On some occasions, Jose would sleep over. Duenas further testified that Jose was “always in a bad mood.” ¶ 12 Jose filed a reply to Rocio’s affirmative defenses in which he denied all of her allegations. ¶ 13 Jose moved for judgment on the pleadings pursuant to section 2-615(e) of the Code of Civil Procedure (Code) (735 ILCS 5/2-615(e) (West 2018)). 3 After hearing arguments from both parties, the circuit court granted Jose’s section 2-615(e) motion as to two issues. First, the circuit court found there was no material issue of fact with regard to the issue of habitual residence of the minor child, that being the country of Mexico. Second, the circuit court found that there was no material issue of fact with regard to the exercise of custodial rights by Jose at the time of removal. Therefore, the circuit court granted the section 2-615(e) motion as to those issues only. ¶ 14 Evidentiary Hearing 4 ¶ 15 Having determined that Jose’s Hague petition met the prima facie requirements for a wrongful removal determination, the circuit court conducted an evidentiary hearing on Rocio’s affirmative defenses. The circuit court heard testimony from Jose, Rocio, Denise Montes (Rocio’s sister), and Duenas (Rocio’s grandfather). As the sole issue on appeal is whether the circuit court properly found that the grave risk exception applied, we limit the recitation of the 3 The record does not contain a written motion for judgment on the pleadings. However, there is no dispute between the parties that Jose made this motion orally. The record is further devoid of any other motions made in conjunction with this petition. 4 The evidentiary hearing was conducted with the assistance of a Spanish language interpreter. -5- 1-19-1762 facts to that specific issue. 5 ¶ 16 Jose testified with the assistance of a Spanish language interpreter as follows. The child was born in Jalisco, Mexico. At that time he was not residing in Jalisco, but would visit each weekend. In the middle of 2016, he moved into Duenas’ home in Jalisco to live with Rocio and the child. Jose denied having a difficult relationship with Rocio. ¶ 17 As to the March 2017 incident, Jose testified they were inside Duenas’ home and they were arguing. While they were arguing, Flores (Rocio’s aunt) came inside the house. He denied getting angry with Rocio, raising his voice, and touching her. Jose further testified that after this incident they continued to reside together. ¶ 18 Regarding the alleged January 2016 argument, Jose testified that it was a discussion, not an argument. Jose denied saying that if Rocio tried to take the child to Chicago he would kill Rocio. Jose also denied telling Rocio that her job was to stay home and take care of the baby. According to Jose, Rocio decided on her own to quit her job. ¶ 19 On cross-examination, Jose testified that he never hit or choked Rocio and he never physically abused their daughter. ¶ 20 Rocio testified in Spanish with the assistance of a Spanish language interpreter. Rocio testified she met Jose in 2005 while she was living in Jalisco. After she informed him she was pregnant Jose demanded she obtain an abortion. Rocio disagreed and Jose moved out. Almost two years after the child was born Jose moved in with her in March 2016. Regarding the March 2017 argument, Rocio testified that they were arguing about her going to the United States to 5 After Rocio presented her case-in-chief, Jose moved for a directed finding as to all three of her affirmative defenses. The circuit court granted the directed finding as to the other two affirmative defenses. The circuit court’s determination as to these directed findings is not at issue on appeal. -6- 1-19-1762 visit her family—Jose did not want her to go. During the argument, Jose choked her with one hand while she was holding their two-year-old child. She was screaming for him to stop when her aunt came into the room and he let go. After that fight, she stayed in her bedroom with the child and kept the door locked. Jose slept in a different room. ¶ 21 Regarding the January 2016 incident, Rocio testified that Jose threatened to kill her if she moved to Chicago with the child. She also testified that in August 2017 she obtained employment at a school as an English teacher. The school would allow the daughter to attend kindergarten for free. Jose did not want her to go to work or for their child to attend school, so he threatened her and she only worked there for a few days as a result. ¶ 22 In addition, Rocio testified that there were other incidents where Jose threatened her. In September 2017, she wanted to visit her sister (who resided in the same town) and he threatened her so she would not go. According to Rocio, she did not report Jose to the police because she does not trust the police. She was also scared of Jose and believed that she and her daughter are in physical danger from him. ¶ 23 Denise Montes, Rocio’s sister, testified that in August 2017 Rocio called her during an argument with Jose and told her Jose was not allowing her to work and take the child to school. According to Denise, Rocio sounded upset, angry, and sad. She also heard Jose in the background through the phone. Denise testified that Jose sounded “very upset” and that he was speaking loudly. She heard him say he did not want Rocio to work because “it was not her duty and that if she did she should expect the consequences.” ¶ 24 Rocio’s grandfather, Duenas, testified that he owns the property where Rocio and Jose stayed in Jalisco, Mexcio. According to Duenas, he had very little contact with Jose, but when he observed Jose he appeared as though he was not happy. -7- 1-19-1762 ¶ 25 Rocio rested and Jose declined to put on any other evidence. After obtaining written closing arguments the circuit court took the matter under advisement. ¶ 26 On April 11, 2019, the circuit court issued a written memorandum order denying Jose’s Hague petition. In doing so, the circuit court determined that Rocio was “a highly credible witness” and that Jose was not a credible witness. The court further found that Denise’s testimony was credible, and the grandfather’s testimony was not relevant to the issue at bar. The circuit court then made the following findings of fact: “The sister, Denise, who lives in Chicago, testified to the fact that she overheard conversations between Jose and Rocio while on the telephone in mid-August 2017 with Rocio. The topic of conversation she overheard between Jose and Rocio was Jose saying ‘no’ to Rocio working. She described Jose as saying ‘no’ and speaking to Rocio in a loud and upset tone of voice. The call was initiated by Rocio to Denise. On cross- examination Denise said there were several phone calls to her during this same time period about the same topic.” ¶ 27 In regard to Rocio’s testimony, the circuit court made the following findings about the March 2017 argument: “[Rocio] described an argument where, in March 2017 while she was holding the baby, Jose began choking her with one hand. Rocio began screaming, and Jose stopped the assault when Rocio’s Aunt walked in. She told Jose to leave and he left for a couple of weeks and then returned. Rocio testified on cross examination that in January 2016, Jose threatened to kill her, and then he moved in two months later. Rocio testified she did not call the police because she believed the local police to be corrupt. She admitted on cross examination that she continued to reside with Jose until August 2017. Rocio testified as -8- 1-19-1762 to the fact that, in August 2017, Jose prohibited her from working as an English teacher where she could have also had free childcare. She testified that she resigned on the third day because Jose told her she could not work. In September 2017 Rocio left Mexico with the minor child and traveled to the United States. She did not inform Jose.” ¶ 28 The circuit court found the following facts regarding Jose’s testimony: “He testified he moved in with Rocio in 2016, and while he does not remember the month, he thinks it was in the middle of the year. He testified that Rocio’s parents moved back to Chicago in May 2016. He said that he and Rocio did not have a difficult relationship, but, like all couples, they did argue. Jose acknowledged that there was an argument in March 2017 in Rocio’s grandparent’s [sic] house. He claimed that Rocio was not holding the baby, and that the baby was outside with no one watching her. He testified (as did Rocio) that Rocio’s Aunt came in because she heard the argument. He denied being angry or raising his voice, but acknowledge that the Aunt heard the commotion. He denied choking Rocio. He also denied that Rocio asked him to move out in August 2017.” ¶ 29 Based on these findings of fact and the court’s assessment of the witnesses’ credibility, the circuit court found by clear and convincing evidence that there was a grave risk that the return of the minor child would expose her to physical or psychological harm or otherwise place the child in an intolerable situation. ¶ 30 On May 10, 2019, Jose filed a motion to reconsider the April order, which the trial court denied. The trial court further found that the April 11, 2019, order was final and appealable pursuant to Illinois Supreme Court Rule 304(a) (eff. Mar. 8, 2016) and that there was no just reason to delay its enforcement or appeal. This appeal followed. -9- 1-19-1762 ¶ 31 ANALYSIS ¶ 32 We initially observe that while state and federal courts share concurrent jurisdiction over Hague petitions, most are brought in federal courts. See 42 U.S.C. § 11603 (a), (b), (d). This is especially true in Illinois as this court has had no opportunity to review a respondent’s grave risk defense. Therefore, we must look outside our Illinois jurisprudence. Although federal law and the law of those states outside of Illinois do not have any precedential value, we may consider this case law as persuasive authority. See Duncan v. FedEx Office and Print Services, Inc., 2019 IL App (1st) 180857 , ¶ 20; see also State Bank of Cherry v. CGB Enterprises, Inc., 2013 IL 113836 , ¶ 53 (“we may afford a Seventh Circuit decision more persuasive value than we would the decisions of other federal courts, provided it is reasonable and logical”). ¶ 33 Hague Convention ¶ 34 We begin our analysis with some background on the Hague Convention, which was implemented in the United States by the International Child Abduction Remedies Act ( 22 U.S.C. § 9001 et seq.) “[t]o address the problem of international child abductions during domestic disputes.” Lozano v. Montoya Alvarez, 572 U.S. 1 , 4 (2014) (internal quotation marks omitted). It provides that a child wrongfully removed from her country of “habitual residence” ordinarily must be returned to that country. Monasky v. Taglieri, 140 S.Ct. 719 , 722-23 (2020). Both the United States and Mexico are Hague Convention signatories. It is the Hague Convention’s core premise that “the interests of children *** in matters relating to their custody” are best served when custody decisions are made in the child’s country of “habitual residence.” Hague Convention Preamble, Treaty Doc., at 7; see Abbott v. Abbott, 560 U.S. 1 , 20 (2010). ¶ 35 The Hague Convention recognizes certain exceptions to the return obligation. See Lozano, 572 U.S. at 5; Chafin v. Chafin, 568 U.S. 165 , 169 (2013). Prime among them, a child’s - 10 - 1-19-1762 return is not in order if the return would place her at a “grave risk” of physical or psychological harm or otherwise in “an intolerable situation.” 42 U.S.C. § 11603 (e)(2)(A); Hague Convention, art. 13(b); see Monasky, 140 S. Ct. at 723. This provision has been recognized by the United States Supreme Court as “a mechanism for guarding children from the harms of domestic violence.” Monasky, 140 S. Ct. at 729; see also Khan v. Fatima, 680 F.3d 781 , 786 (7th Cir. 2012) (credible testimony of spousal abuse, carried out in the presence of the child at issue, supports a finding that return of the child to the abuser poses a grave risk of at least psychological harm). ¶ 36 Standard of Review – Denial of a Hague Petition ¶ 37 We review the factual findings of the circuit court for clear error but determine de novo whether those facts establish a grave risk of harm. Ortiz v. Martinez, 789 F.3d 722 , 728 (7th Cir. 2015); Ermini v. Vittori, 758 F.3d 153 , 160 (2d Cir. 2014); Cuellar v. Joyce, 596 F.3d 505 , 509 (9th Cir. 2010). “Clear-error review has a particular virtue in Hague Convention cases. It has been observed by the Supreme Court that, as a deferential standard of review, clear-error review speeds up appeals and thus serves the Convention’s premium on expedition.” Monasky, 140 S. Ct. at 730. ¶ 38 Grave Risk ¶ 39 On appeal, Jose maintains that the only issue is whether Rocio established that return to Mexico would place the child at “grave risk of harm” under the demanding standard of clear and convincing evidence. Jose argues that the two isolated incidents (the March 2017 choking incident and the January 2016 threat) do not rise to the level of grave risk. ¶ 40 Since the adoption of the Hague Convention, there has been a shift toward recognizing domestic violence as posing a grave risk toward the child. This shift commenced in 1990 when a - 11 - 1-19-1762 congressional resolution passed which specifically found that “children are at increased risk of physical and psychological injury themselves when they are in contact with a spousal abuser” and “the effects of physical abuse of a spouse on children include *** the potential for future harm where contact with the batterer continues [because] *** children often become targets of physical abuse themselves or are injured when they attempt to intervene on behalf of a parent.” H.R. Con. Res. 172, 101st Cong., 104 Stat. 5182 , 5182 (1990); see also Gomez v. Fuenmayor, 812 F.3d 1005 , 1014 (11th Cir. 2016) (it “requires no stretch of the imagination to conclude that serious, violent domestic abuse repeatedly directed at a parent can easily be turned against a child”). The courts commenced recognizing these concepts around 2000 and stated so in Walsh v. Walsh, 221 F.3d 204 , 220 (1st Cir. 2000). In that case, the First Circuit gave express recognition to the fact that the exposure of a child to domestic violence is a sufficient risk to preclude the child’s return under the Convention. Id. Recently, the grave risk defense was also recognized by the United States Supreme Court as “a mechanism for guarding children from the harms of domestic violence.” Monasky, 140 S. Ct. at 729. ¶ 41 A review of the case law in this area, however, reveals that a judicial consensus has not emerged. While some federal courts read the grave risk defense narrowly (see Simcox v. Simcox, 511 F.3d 594 , 607 (6th Cir. 2007)) others, including our Seventh Circuit, have a broader view, recognizing that domestic violence toward a spouse can amount to grave risk of psychological injury to the child. See Van De Sande v. Van De Sande, 431 F.3d 567 , 571 (7th Cir. 2005); Khan, 680 F.3d at 787; see also Walsh, 221 F.3d at 220 (“both state and federal law have recognized that children are at increased risk of physical and psychological injury themselves when they are in contact with a spousal abuser”); Gomez, 812 F.3d at 1014 (holding that “ruling to the contrary would artificially and unrealistically ignore the powerful effect that a pattern of - 12 - 1-19-1762 serious violence directed at a parent may have on his children.”); Noergaard v. Noergaard, 244 Cal. App. 4th 76 , 84 (2015) (“domestic violence or child abuse constitutes a grave risk to the child”). The Seventh Circuit has made clear that “[i]f handing over custody of a child to an abusive parent creates a grave risk of harm to the child, in the sense that the parent may with some nonnegligible probability injure the child, the child should not be handed over[.]” Van De Sande, 431 F.3d at 571 . In fact, some courts have found that a threat to kill a child or a history of domestic violence qualifies as a grave risk. See id. at 570 ; see also Ermini v. Vittori, 758 F.3d 153 , 164 (2d Cir. 2014); Mohacsi v. Rippa, 346 F.Supp.3d 295 , 321 (E.D.N.Y. 2018) (finding the respondent met her burden of demonstrating a grave risk of harm where the petitioner engaged in a prolonged course of abuse of the respondent that included an incident where he “nearly choked her to death” and had threatened to kill her). ¶ 42 The Second Circuit has characterized the grave risk exception as follows: “[A]t one end of the spectrum are those situations where repatriation might cause inconvenience or hardship, eliminate certain educational or economic opportunities, or not comport with the child's preferences; at the other end of the spectrum are those situations in which the child faces a real risk of being hurt, physically or psychologically, as a result of repatriation. The former does not constitute a grave risk of harm under Article 13(b); the latter do.” Blondin v. Dubois, 238 F.3d 153 , 162 (2d Cir. 2001). Although “[s]poradic or isolated incidents of physical discipline directed at the child, or some limited incidents aimed at persons other than the child, even if witnessed by the child, have not been found to constitute a grave risk,” the Second Circuit has recognized that “[e]vidence of prior spousal abuse, though not directed at the child, can support the grave risk of harm defense, as could a showing of the child’s exposure to such abuse.” Souratgar v. Lee, 720 F.3d 96 , 104 - 13 - 1-19-1762 (2d Cir. 2013) (quotation marks, citation, and alterations omitted); see also Ermini, 758 F.3d at 164-65 (noting spousal abuse can establish a grave risk of harm to the child in certain circumstances). ¶ 43 The State Department, however, has cautioned that “the person opposing the child’s return must show that the risk to the child is grave, not merely serious,” and has stressed that Article 13(b) “was not intended to be used by defendants as a vehicle to litigate (or relitigate) the child’s best interests.” Hague International Child Abduction Convention; Text and Legal Analysis, 51 Fed. Reg. 10494 ; see Blondin, 238 F.3d at 162 n. 10 (according “great weight” to the State Department’s interpretation of the Convention). But, as previously established herein, there is an exception “where the petitioner showed a ‘sustained pattern of physical abuse and/or a propensity for violent abuse’ that presented an intolerably grave risk to the child.” Souratgar, 720 F.3d at 104 (quoting Laguna v. Avila, No. 07-CV-5136 (ENV), 2008 WL 1986253 , at *8 (E.D.N.Y. 2008)); see also Baran v. Beaty, 526 F.3d 1340 , 1352 (11th Cir. 2008) (affirming district court’s finding of grave risk due to the credible evidence that the father was “a violent and abusive man with a lengthy history of inflicting physical and psychological abuse on those he ostensibly loves the most”). As observed by the First Circuit, the alleged harm “must be a great deal more than minimal” and “greater than would normally be expected on taking a child away from one parent and passing him to another.” Walsh, 221 F.3d at 218 (internal quotation marks omitted). ¶ 44 Based on the case law, we find the circuit court properly considered the evidence presented in this case and correctly determined that Rocio proved by clear and convincing evidence a grave risk of harm or otherwise an intolerable situation under Article 13(b). See 42 U.S.C. § 11603 (e)(2)(A); Hague Convention, art. 13(b); see Monasky, 140 S. Ct. at 723. The - 14 - 1-19-1762 evidence and testimony presented in support of this defense demonstrated a pattern of escalating violence as well as a pattern of interference with Rocio’s personal liberty which, in turn, effected the psychological welfare of the child. Rocio’s testimony (which the circuit court found to be credible) indicated that Jose’s interference with her personal liberty commenced when she became pregnant with the child and he demanded she obtain an abortion. After the child was born, Jose did not reside with the child nor did he provided any support to Rocio or the child. It was only in mid-2016 that Jose began living with Rocio and the child, but the evidence demonstrated he still did not provide for their financial support. In fact, the record demonstrates Jose made no effort to establish or assert his parentage of the child in any legal or administrative forum. ¶ 45 Rocio’s testimony and the testimony of her various family members established that she and Jose were frequently arguing and these arguments—at times—were witnessed by the child. These arguments escalated into threats, with Jose threatening to kill Rocio on various occasions if she were to leave him and take the child with her. These threats interfered with Rocio’s personal liberty as demonstrated by the fact that when she did decide to leave Jose, she did so secretly with the assistance of her family members during the middle of the night while Jose was asleep. ¶ 46 Rocio further established that Jose was more than capable and willing to follow through on his threats of physical harm when she testified regarding the March 2017 argument where they argued about Rocio desiring to return to the United States with the child. Jose did not want her to return and he choked her while she was holding the child. This instance of physical abuse was corroborated by the testimony of Rocio’s aunt who witnessed Jose choking Rocio. The circuit court found Rocio’s testimony regarding this instance of physical abuse to be credible. - 15 - 1-19-1762 See In re Marriage of Bates, 212 Ill. 2d 489 , 515 (2004) (“The trial court is in the best position to review the evidence and to weigh the credibility of the witnesses.”). As observed by the Seventh Circuit, “Under the clear error standard, we will not overturn the district court’s factual findings unless, after reviewing all the evidence, we are ‘left with [a] definite and firm conviction that a mistake has been [made].” Ortiz, 789 F.3d at 728. “In other words, a district court’s credibility findings are ‘binding on appeal unless the -court] has chosen to credit exceedingly improbable testimony.’ ” (Emphasis in original.) Id. at 729. Our review of the record reveals that the circuit court did not chose to credit “exceedingly improbable testimony” and, in fact, much of it was corroborated, albeit by Rocio’s family members. Id. ¶ 47 In addition, Rocio demonstrated that Jose interfered with her personal liberty when he prohibited her from working as a teacher outside the home. While Jose testified Rocio quit the position based on her own free will, the circuit court determined Rocio to be credible while at the same time found Jose not to be credible. The circuit court was also presented with the testimony of Rocio’s sister Denise who testified that she overheard arguments between Rocio and Jose regarding Rocio’s desire to be employed. We see no reason on the record to disagree with the circuit court’s credibility findings and, in fact, afford them great deference. See In re Marriage of Bates, 212 Ill. 2d at 515 . ¶ 48 In total, Rocio’s evidence clearly and convincingly established a pattern of escalating domestic abuse beginning with Jose’s demand she obtain an abortion and ending with him choking her while she held the child in her arms and making repeated threats on her life. In our view, the evidence demonstrates that the child faces “a real risk” of being hurt psychologically due to her witnessing these events. Souratgar, 720 F.3d at 103 (domestic violence can satisfy the grave risk defense when a “sustained pattern of physical abuse and/or a propensity for - 16 - 1-19-1762 violent abuse” is demonstrated by clear and convincing evidence) (Emphasis added.). For this court to set aside the circuit court’s credibility and factual findings and grant Jose’s Hague petition would be to ignore the fact that domestic violence toward a partner does cause grave harm to the child or place the child in an intolerable situation. As recognized by the First Circuit, “credible social science literature establishes that serial spousal abusers are also likely to be child abusers.” Walsh, 221 F.3d at 220 (citing Jeffrey L. Edleson, The Overlap Between Child Maltreatment and Woman Battering, 5 Violence Against Women 134 (1999); Anne E. Appel & George W. Holden, The Co-Occurrence of Spouse and Physical Child Abuse: A Review and Appraisal, 12 J. Fam. Psychol. 578 (1998); Lee H. Bowker et al., On the Relationship Between Wife and Child Abuse, in Kersti Yllo & Michele Bograd, Feminist Perspectives on Wife Abuse 158 (1988); Susan M. Ross, Risk of Physical Abuse to Children of Spouse Abusing Parents, 20 Child Abuse & Neglect 589 (1996)). The First Circuit also recognized that “both state and federal law have recognized that children are at an increased risk of physical and psychological injury themselves when they are in contact with a spousal abuser.” Id. (quoting H.R. Con. Res. 172, 101st Cong., 104 Stat. 5182 , 5182 (1990) (“Whereas the effects of physical abuse of a spouse on children include *** the potential for future harm where contact with the batterer continues; *** Whereas children often become targets of physical abuse themselves or are injured when they attempt to intervene on behalf of a parent”). ¶ 49 In that vein, we disagree with Jose’s suggestion that for a grave risk defense to prevail the incidents of domestic violence must have occurred over an extended period of time and involve vicious circumstances. In support of this position Jose cites numerous cases where courts have found the grave risk defense applied in instances of extreme violence perpetuated on a domestic partner. See Friedrich v. Friedrich, 78 F.3d 1060 , 1069 (6th Cir. 1996); Simcox v. Simcox, 511 - 17 - 1-19- 1762 F.3d 594 , 607 (6th Cir. 2007); Hernandez v. Cardoso, 844 F.3d 692 , 695 (7th Cir. 2016); Khan, 680 F.3d at 787; Habrzyk v. Habryzk, 775 F.Supp.2d 1054 , 1059 (N.D. Ill. 2011); Van de Sande, 431 F.3d at 570 . While the case law in this area has correctly found a grave risk to the child under these circumstances, we cannot say that a spouse must endure years of violent abuse for this exception to be established. Here, Rocio established by clear and convincing evidence an escalating pattern of verbal and physical abuse, which included restrictions on her movement and employment. This court finds such evidence supports her asserted defense. ¶ 50 In so finding we also reject Jose’s argument that Rocio failed to prove the grave risk defense by clear and convincing evidence because she did not present any expert testimony regarding the psychological impact Jose’s behavior had on the child. We find that such evidence is not required by Article 13(b). Although such evidence may be helpful in a grave risk defense, it is not necessary. Moreover, Jose provides us with no authority that places such a burden on Rocio and the case law in this area does not require it. Indeed, to require an individual in Rocio’s position to obtain, at her expense, medical and psychological experts would undermine the purpose of the grave risk defense. As observed by Judge Posner, “The Hague Convention was created to discourage abductions by parents who either lost, or would lose, a custody contest ***. The Convention drafters adopted a ‘remedy of return’ *** to discourage abductions, reconnect children with their primary caretakers, and locate each custody contest in the forum where most of the relevant evidence existed. But while the remedy of return works well if the abductor is a non-custodial parent, it is inappropriate when the abductor is a primary caretaker who is seeking to protect herself and the children from the other parent’s violence.” Khan, 680 F.3d at 784. Indeed, because Rocio is the “abductor” (while also being a domestic violence victim), the implementation of the Convention creates an imbalance between Jose and Rocio - 18 - 1-19-1762 from its inception. Specifically, the Convention assists petitioners (Jose) in obtaining and paying for counsel, but not respondents (Rocio). See 22 C.F.R. § 94.6 (e) (1989). As Rocio notes, Jose was assigned pro bono legal representation from a large family law firm. In contrast, she is paying for her own private counsel. In addition, as Rocio asserts in her brief and as is evident in the record, she does not have the financial means to present expert witnesses on her behalf. For us to require such experts in order for her to meet her burden of clear and convincing evidence would further the imbalance between Jose and Rocio. ¶ 51 In sum, based on the evidence presented in the record we affirm the judgment of the circuit court of Cook County. ¶ 52 CONCLUSION ¶ 53 For the reasons stated above, we affirm the judgment of the circuit court of Cook County. ¶ 54 Affirmed. - 19 - 1-19-1762 No. 1-19-1762 Cite as: In re the Parentage of M.V.U., 2020 IL App (1st) 191762 Decision Under Review: Appeal from the Circuit Court of Cook County, No. 18-D-79090; the Honorable Mary S. Trew, Judge, presiding. Attorneys Evan Dylan Whitfield, of Schiller DuCanto & Fleck LLP, of for Chicago, for appellant. Appellant: Attorneys John Andrew Coladarci and Anne Margaret Coladarci, of for Coladarci & Coladarci, of Chicago, for appellee. Appellee: - 20 -

2020-12-03 22:03:49.22662+00

http://www.illinoiscourts.gov/Opinions/AppellateCourt/2020/1stDistrict/1192116.pdf

2020 IL App (1st) 192116 No. 1-19-2116 Fourth Division December 3, 2020 ______________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ______________________________________________________________________________ ) In re MARRIAGE OF ) ) Appeal from the Circuit Court BETSY DYNAKO, ) of Cook County. ) Petitioner-Appellee, ) No. 2015 D 002531 ) and ) The Honorable ) David Haracz, STEPHEN DYNAKO, ) Judge Presiding. ) Respondent-Appellant. ) ) ______________________________________________________________________________ PRESIDING JUSTICE GORDON delivered the judgment of the court, with opinion. Justices Hall and Lampkin concurred in the judgment and opinion. OPINION ¶1 The instant appeal arises from respondent Stephen Dynako’s motion to modify the maintenance he was ordered to pay to petitioner Betsy Dynako (now known as Betsy Zacate) in connection with the dissolution of their marriage. Since their marital settlement agreement contained a clause providing that maintenance was nonmodifiable, the trial court found that it lacked the authority to modify respondent’s maintenance obligation and, accordingly, denied respondent’s motion. Respondent appeals, claiming that the marital settlement agreement did not render his maintenance obligation nonmodifiable. For the reasons that follow, we affirm.  No. 1-19-2116 ¶2 BACKGROUND ¶3 On March 20, 2015, petitioner filed a petition for dissolution of marriage, alleging that the parties had been married in 2000 and had no children. Petitioner was 41 years old and a self- employed photographer, while respondent was 48 years old and was a vice president at a bank and was also a part-time psychotherapist. ¶4 On March 24, 2015, petitioner filed a motion for entry of an agreed order regarding various temporary matters, including temporary maintenance for petitioner. 1 Petitioner claimed that the parties agreed, inter alia, (1) that petitioner be granted exclusive possession of the marital residence, (2) that respondent pay petitioner $3741 per month in temporary maintenance, and (3) that respondent have access to borrow against his 401(k) and the ability to withdraw up to 50% of its current value of $170,000. On April 2, 2015, the trial court entered the agreed order. ¶5 On February 8, 2016, the trial court entered a judgment for dissolution of marriage, which incorporated a marital settlement agreement entered into by the parties. 2 The marital settlement agreement set forth provisions for maintenance, as follows: “2.1 [Respondent] agrees to pay [petitioner] for her maintenance the sum of $5,000.00 (Five Thousand Dollars) per month for FOUR YEARS (48 months). The first monthly payment of $5,000.00 shall be paid on the 25th day of the month immediately following the entry of this Judgment herein and a like monthly payment of $5,000.00 to be paid on the same day each succeeding month thereafter. [Respondent] shall continue to pay maintenance to [petitioner] for an additional FOUR 1 The motion did not set forth the amount of either party’s income at the time. 2 Neither the marital settlement agreement nor the judgment for dissolution of marriage set forth any facts as to the amount of either party’s income at the time. 2  No. 1-19-2116 YEARS (a total of 8 years of maintenance shall be paid-in-full) in decreasing amounts as follows: a) Year 5: $50,000 annually ($4,166 per month); b) Year 6: $40,000 annually ($3,333 per month); c) Year 7: $30,000 annually ($2,500 per month); d) Year 8: $20,000 annually ($1,666 per month). Said maintenance payments shall be non-modifiable pursuant to Section 502(f) of the Illinois Marriage and Dissolution of Marriage Act. [Respondent] shall make said payments to [petitioner] by depositing monies into the jointly held Chase Bank account ***.” ¶6 On November 7, 2017, petitioner filed a petition for rule to show cause, claiming that between May 2017 and October 2017, respondent had paid only $700 in maintenance payments, instead of the $30,000 he was required to pay. Petitioner further claimed that respondent had the ability to comply with the terms of the dissolution judgment but willfully chose not to do so. Respondent did not file a response to the petition for rule to show cause. On January 24, 2018, the trial court entered an order finding respondent to be in indirect civil contempt for failure to make $43,800 in maintenance payments as of the date of the order, plus statutory interest. As part of its findings, the court found that respondent “has not given any legally sufficient reasons for failure to comply with said order, even though [he] had, and still has, the means to comply with said order, and that [respondent’s] failure to comply with said order is willful and contumacious.” The court also ordered respondent committed to Cook County jail until he paid at least $10,000 to purge his contempt, with the mittimus stayed until the next court date. 3  No. 1-19-2116 ¶7 At the next court date, on March 27, 2018, the trial court entered an order requiring respondent to complete a job diary, as well as to remain current on his maintenance payments. The court further stayed respondent’s mittimus until the next court date in May. On May 29, 2018, the court found that, while respondent had been ordered to pay petitioner $10,000 by that date, he had paid only $5000. The court continued to require respondent to prepare a job diary, and also ordered respondent to prepare a financial affidavit. The court ordered respondent to pay $10,000 by the next court date, cautioning that “failure to make said payment may result in a body attachment.” ¶8 On June 15, 2018, respondent filed a petition to modify the court’s May 29, 2018, order, claiming that he did not have the financial resources to comply with the court’s order because he was earning less than $3000 per month working as a “management consultant” and had withdrawn all funds from his 401(k) to make his maintenance payments. On July 6, 2018, the trial court entered an order ordering respondent to pay petitioner $1500 on the first of each month toward his maintenance obligation until further order of the court, and ordered respondent to “exercise his fullest efforts on obtaining employment sufficient to meet his [maintenance] obligation.” The court also ordered respondent to tender his financial affidavit, 3 and allowed petitioner to conduct discovery as to respondent’s financial condition. On September 13, 2018, respondent withdrew his petition to modify the court’s May 29 order. ¶9 On October 18, 2018, the trial court entered an order on the previously-entered rule to show cause, finding that “[t]he previous finding of contempt against Respondent remains in full force and effect.” The court further ordered that respondent was “under a continuing obligation to 3 While a notice of service provides that a financial affidavit and job search diary were subsequently sent to petitioner, neither of these documents are included in the record on appeal. 4  No. 1-19-2116 prepare job diaries and to pay Petitioner at least $1500.00 per month towards Respondent’s obligation to pay maintenance to Petitioner. Respondent is also obligated to seek additional part-time employment.” ¶ 10 On December 20, 2018, respondent filed a petition to modify the February 8, 2016, judgment for dissolution of marriage by terminating or modifying his maintenance obligation. While the marital settlement agreement provided that the maintenance payments were “non- modifiable pursuant to Section 502(f) of the Illinois Marriage and Dissolution of Marriage Act,” respondent claimed that the maintenance obligation was not truly nonmodifiable because it did not specifically provide “that the non-modifiability applies to amount, duration, or both.” Respondent claimed that a change in circumstances necessitated the modification of his maintenance obligation, as he had been without steady income for several years and his financial circumstances had “deteriorated to the point of desperation.” Respondent further claimed that the maintenance obligation was unconscionable. ¶ 11 Respondent claimed that, at the time that petitioner filed the petition for dissolution of marriage, respondent was without formal employment and was “seeking to build a consulting business from scratch.” He further claimed that he had been without steady income for over three years, and “his lack of steady employment for such an extended period of time coupled with his advancing age has compromised his ability to find employment at a level sufficient to support the maintenance obligation.” Respondent claimed that the only “substantial” assets awarded to him in the dissolution judgment were his retirement accounts, which had been liquidated and turned over to petitioner to be applied towards his maintenance obligation. Respondent claimed that his gross income was $3000 per month, of which $1500 was being paid to petitioner. Respondent further claimed that he had been “diligently seeking more 5  No. 1-19-2116 lucrative employment,” but had been unsuccessful. He had also been seeking “odd jobs” and turning over the income from those jobs to petitioner. Respondent claimed that the maintenance obligation as written was impossible for him to perform and that petitioner “has substantial assets and is well able to earn an income to support herself.” ¶ 12 Attached to his motion was respondent’s affidavit, in which he averred that in 2014, respondent was working in banking, earning approximately $140,000 per year. By March 2015, he had learned that his job was in jeopardy and feared he was going to lose his job. Since he had a master’s degree in pastoral counseling, he believed his “best move forward was to develop a career in pastoral counseling.” He left his job at the bank in April 2015, after giving notice in March 2015. After leaving his job at the bank, he had earnings of less than $3000 in 2016 and 2017. Beginning in 2018, he contracted with a not-for-profit agency, earning $3000 per month “producing transformational educational programs based in spiritual principles.” He also performed several “one-off projects,” which earned him an additional $6000. ¶ 13 Respondent averred that he had been searching for a job in the financial sector that would give him earnings equivalent to his former earnings, but had been unsuccessful. He had also contacted numerous executive recruiters, all of whom had advised him that it would be difficult to place him at the level of his former compensation, as he had been out of the financial sector for four years and lacked current experience. Respondent averred that his work with the not- for-profit had earned him a positive reputation and a number of professional connections, leading him to believe that his “most promising prospect for rebuilding a career” was to continue working in that sector. ¶ 14 In response to respondent’s motion, petitioner claimed that the terms of the maintenance obligation were expressly made nonmodifiable in the marital settlement agreement. Petitioner 6  No. 1-19-2116 also claimed that respondent had been formally employed at the time that petitioner filed her petition for dissolution of marriage, contrary to his contention. Petitioner claimed that, at the time, she was supportive of respondent’s efforts to build a consulting business, but that her support was predicated on respondent being able to continue to support her, as she made clear to him. Petitioner claimed that respondent quit his previous job voluntarily, because he was unhappy with it, and denied that respondent ever told her that he was about to lose his job. Petitioner also claimed that, in the dissolution judgment, respondent was awarded half of the funds in his 401(k) and three pension plans, received $17,000 from petitioner for a buyout of his interest in the parties’ condominium, and was awarded “various bank accounts, stocks, stock options, and other assets in Respondent’s name only which were not specifically known to Petitioner at the time of the entry of the parties’ Judgment for Dissolution of Marriage.” ¶ 15 Petitioner further claimed that, contrary to respondent’s assertion, she suffered from a variety of health issues that made it difficult for her to earn an income; she was considered disabled by the State of Illinois and received employment assistance from the Illinois Department of Rehabilitation Services. Petitioner had not had regular part-time employment since Thanksgiving 2018, and had never been employed on a full-time basis. ¶ 16 On July 25, 2019, the trial court set respondent’s motion for hearing “on the limited question of whether the non-modifiability provision of respondent’s maintenance obligation is enforceable.” The court further ordered that the question of whether there had been a change in circumstances would be reserved pending the court’s ruling on the enforceability of the non- modifiability provision. ¶ 17 On September 17, 2019, the parties came before the court for a hearing, and agreed that the sole issue before the court was whether the maintenance obligation was modifiable under 7  No. 1-19-2116 section 502(f) of the Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5/502(f) (West 2018)). After hearing the parties’ arguments, the court found that it “does not have the ability to modify Respondent’s obligation to pay Petitioner maintenance as set forth in the parties’ Judgment for Dissolution of Marriage entered on February 8, 2016, pursuant to Section 502(f) of the Illinois Marriage and Dissolution of Marriage Act.” Accordingly, the court denied respondent’s motion, further finding that there was no just reason to delay enforcement or appeal of the order. ¶ 18 On October 15, 2019, respondent filed a notice of appeal, and this appeal follows. ¶ 19 ANALYSIS ¶ 20 On appeal, we are presented with one question: whether the maintenance obligation in this marital settlement agreement is modifiable, even when respondent claims he cannot pay through a change in circumstances. 4 The answer to this question requires us to interpret the language of a statute, namely, section 502 of the Illinois Marriage and Dissolution of Marriage Act (Act) (750 ILCS 5/502 (West 2018)), as well as the language of the marital settlement agreement. ¶ 21 “The fundamental objective of statutory construction is to ascertain and give effect to the intent of the legislature.” 1010 Lake Shore Ass’n v. Deutsche Bank National Trust Co., 2015 IL 118372 , ¶ 21 (citing Bettis v. Marsaglia, 2014 IL 117050 , ¶ 13). “The most reliable indicator of legislative intent is the statutory language, given its plain and ordinary meaning.” 1010 Lake Shore Ass’n, 2015 IL 118372 , ¶ 21 (citing State Building Venture v. O’Donnell, 239 Ill. 2d 4 While our background section set forth the claims made by the parties below concerning the purported change in circumstances, as noted, the parties and the court agreed that the legal issue regarding modifiability would be resolved prior to considering any evidence as to changed circumstances. Accordingly, any evidence or argument concerning that issue is not contained in the record on appeal and we make no comment as to whether respondent would be able to prevail on such a claim. 8  No. 1-19-2116 151, 160 (2010)). “A reasonable construction must be given to each word, clause, and sentence of a statute, and no term should be rendered superfluous.” 1010 Lake Shore Ass’n, 2015 IL 118372 , ¶ 21 (citing Slepicka v. Illinois Department of Public Health, 2014 IL 116927 , ¶ 14). “ ‘[W]hen statutory language is plain and certain the court is not free to give it a different meaning.’ ” Kalkman v. Nedved, 2013 IL App (3d) 120800 , ¶ 12 (quoting In re Estate of Hoehn, 234 Ill. App. 3d 627 , 629 (1992)). “[A] court may not depart from the plain statutory language by reading into it exceptions, limitations, or conditions not expressed by the legislature.” Kalkman, 2013 IL App (3d) 120800 , ¶ 12 (citing In re Estate of Ellis, 236 Ill. 2d 45 , 51 (2009)). The interpretation and applicability of legislation are questions of law that are reviewed de novo. Lewis v. Lead Industries Ass’n, 2020 IL 124107 , ¶ 36. De novo consideration means we perform the same analysis that a trial judge would perform. XL Specialty Insurance Co. v. Performance Aircraft Leasing, Inc., 2019 IL App (1st) 181031 , ¶ 62. ¶ 22 Additionally, a marital settlement agreement is construed in the same manner as any other contract, and a court must ascertain the parties’ intent from the language of the agreement. Blum v. Koster, 235 Ill. 2d 21 , 33 (2009). The interpretation of a marital settlement agreement is also reviewed de novo as a question of law. Blum, 235 Ill. 2d at 33 . ¶ 23 Respondent first claims that the language in the marital settlement agreement was insufficient to render the maintenance obligation nonmodifiable under the Act. However, before considering the merits of respondent’s argument, we must first determine the version of the Act that applies. The Act has undergone substantial amendment over the last several years and, in fact, section 502, the section that governs marital settlement agreements, was amended 9  No. 1-19-2116 during the pendency of the parties’ dissolution proceedings. 5 The version that was in effect at the time of the filing of the petition for dissolution of marriage provided, in subsection (f): “Except for terms concerning the support, custody or visitation of children, the judgment may expressly preclude or limit modification of terms set forth in the judgment if the agreement so provides. Otherwise, terms of an agreement set forth in the judgment are automatically modified by modification of the judgment.” 750 ILCS 5/502(f) (West 2014). ¶ 24 However, section 502 was amended by Public Act 99-90, which became effective on January 1, 2016. 750 ILCS 5/502 (West Supp. 2015). This amendment changed subsection (f) to provide: “Child support, support of children as provided in Section 513 after the children attain majority, and parental responsibility allocation of children may be modified upon a showing of a substantial change in circumstances. The parties may provide that maintenance is non-modifiable in amount, duration, or both. If the parties do not provide that maintenance is non-modifiable in amount, duration, or both, then those terms are modifiable upon a substantial change of circumstances. Property provisions of an agreement are never modifiable. The judgment may expressly preclude or limit modification of other terms set forth in the judgment if the agreement so provides. Otherwise, terms of an agreement set forth in the judgment are automatically modified by modification of the judgment.” 750 ILCS 5/502(f) (West Supp. 2015). 5 We note that, since the entry of the judgment of dissolution, section 502 has been amended twice more, with the most recent amendment becoming effective January 1, 2018. See 750 ILCS 5/502 (West 2016); Pub. Act 100-422 (eff. Jan. 1, 2018). 10  No. 1-19-2116 This is the version of the Act that was in effect at the time of the entry of the judgment for dissolution. Thus, prior to considering the merits of respondent’s arguments, we must first determine which version of the Act applies—the version in effect at the time of the filing of the petition or the version in effect at the time of the entry of the judgment for dissolution of marriage. ¶ 25 Section 801 of the Act, which was also amended as part of Public Act 99-90, discusses applicability of the Act to proceedings in various stages of completion. 750 ILCS 5/801 (West Supp. 2015). Courts have used this section to determine whether the prior version of the Act governs, or whether the new version of the Act is applicable. 6 See, e.g., In re Marriage of Kasprzyk, 2019 IL App (4th) 170838 , ¶ 38 (finding new Act applicable); In re Marriage of Benink, 2018 IL App (2d) 170175 , ¶ 29 (finding prior version of Act applicable); In re Marriage of Carstens, 2018 IL App (2d) 170183 , ¶ 29 (finding new Act applicable); In re Marriage of Ruvola, 2017 IL App (2d) 160737 , ¶ 13 (finding new Act applicable). As relevant to the instant case, section 801(b) provides that “[t]his Act applies to all pending actions and proceedings commenced prior to its effective date with respect to issues on which a judgment has not been entered.” 750 ILCS 5/801(b) (West Supp. 2015). As noted, the petition for dissolution of marriage was filed on March 20, 2015, prior to the January 1, 2016, effective date of the amendment. However, the judgment for dissolution of marriage was entered on February 8, 2016, after the effective date of the amendment. Since “a judgment [had] not been 6 As noted, the Act has been further amended since the amendment at issue. However, when we refer to the “new” or “amended” Act, we refer to the version of the Act that was effective January 1, 2016. 11  No. 1-19-2116 entered” prior to the effective date of the amended Act, under section 810(b), the new Act controls. 7 750 ILCS 5/801(b) (West Supp. 2015). ¶ 26 We turn, then, to consideration of the requirements of section 502(f) of the Act, as applicable to the case at bar. As noted, section 502(f) provides, in relevant part, that “[t]he parties may provide that maintenance is non-modifiable in amount, duration, or both. If the parties do not provide that maintenance is non-modifiable in amount, duration, or both, then those terms are modifiable upon a substantial change of circumstances.” 750 ILCS 5/502(f) (West Supp. 2015). The marital settlement agreement in the case at bar provided: “2.1 [Respondent] agrees to pay [petitioner] for her maintenance the sum of $5,000.00 (Five Thousand Dollars) per month for FOUR YEARS (48 months). The first monthly payment of $5,000.00 shall be paid on the 25th day of the month immediately following the entry of this Judgment herein and a like monthly payment of $5,000.00 to be paid on the same day each succeeding month thereafter. [Respondent] shall continue to pay maintenance to [petitioner] for an additional FOUR YEARS (a total of 8 years of maintenance shall be paid-in-full) in decreasing amounts as follows: a) Year 5: $50,000 annually ($4,166 per month); 7 We note that, in In re Marriage of Cole, 2016 IL App (5th) 150224 , ¶ 9, the court found that amended maintenance guidelines did not apply to a case in which the marriage, separation, and dissolution hearing all occurred prior to the amendment’s effective date and the only action that occurred after the effective date was the actual entry of the judgment itself. However, in the case at bar, the parties entered into the marital settlement agreement, and came before the court for a hearing on the dissolution petition, after the January 1, 2016, effective date of the amendment at issue. Additionally, we must note that Cole did not include any discussion of section 801 of the Act or its impact on the issue and that at least one court has reached the opposite conclusion on similar facts based on the application of section 801. See Ruvola, 2017 IL App (2d) 160737 , ¶ 13 (“We note first that the trial court was correct to apply the amendments to the [Act] that became effective on January 1, 2016. [Citation.] The amendments became effective after the closing of proofs in this case but before the judgment was rendered. [Citation.]”). 12  No. 1-19-2116 b) Year 6: $40,000 annually ($3,333 per month); c) Year 7: $30,000 annually ($2,500 per month); d) Year 8: $20,000 annually ($1,666 per month). Said maintenance payments shall be non-modifiable pursuant to Section 502(f) of the Illinois Marriage and Dissolution of Marriage Act. [Respondent] shall make said payments to [petitioner] by depositing monies into the jointly held Chase Bank account ***.” (Emphasis added.) We must determine whether the above language renders respondent’s maintenance obligation nonmodifiable under the amended section 502(f). ¶ 27 Respondent contends that, because the marital settlement agreement did not expressly state that his maintenance obligation was “non-modifiable in amount, duration, or both” (750 ILCS 5/502(f) (West Supp. 2015)), then it was modifiable, despite the fact that the agreement expressly states that the obligation is nonmodifiable. In other words, respondent’s argument is that the words “amount, duration, or both” must appear in the agreement in order to render the obligation nonmodifiable. We do not find this argument persuasive. ¶ 28 We note that it does not appear that this language has been interpreted by our courts since it was added to the Act, nor have we discovered any legislative history explaining why the language of section 502(f) was amended. Accordingly, we consider this issue as one of first impression. Respondent’s position is that the amendment imposed a new requirement in order to render a maintenance obligation nonmodifiable: that the agreement expressly provide that the obligation is nonmodifiable as to amount, duration, or both. However, comparing the original version and the amended version reveals no such thing. ¶ 29 As noted, the original version of section 502(f) provided: 13  No. 1-19-2116 “Except for terms concerning the support, custody or visitation of children, the judgment may expressly preclude or limit modification of terms set forth in the judgment if the agreement so provides. Otherwise, terms of an agreement set forth in the judgment are automatically modified by modification of the judgment.” 750 ILCS 5/502(f) (West 2014). Under this version, the only limitations on the parties’ ability to modify a judgment were (1) that child-related provisions could not be made nonmodifiable, and (2) that the parties could “expressly preclude or limit modification of terms set forth in the judgment.” 750 ILCS 5/502(f) (West 2014). ¶ 30 The amended version went into further detail, specifically addressing several types of terms commonly included in marital settlement agreements: “Child support, support of children as provided in Section 513 after the children attain majority, and parental responsibility allocation of children may be modified upon a showing of a substantial change in circumstances. The parties may provide that maintenance is non-modifiable in amount, duration, or both. If the parties do not provide that maintenance is non-modifiable in amount, duration, or both, then those terms are modifiable upon a substantial change of circumstances. Property provisions of an agreement are never modifiable. The judgment may expressly preclude or limit modification of other terms set forth in the judgment if the agreement so provides. Otherwise, terms of an agreement set forth in the judgment are automatically modified by modification of the judgment.” 750 ILCS 5/502(f) (West Supp. 2015). Thus, the new version (1) specified the circumstances under which child-related provisions could be modified and (2) provided that property provisions were never modifiable. 750 ILCS 14  No. 1-19-2116 5/502(f) (West Supp. 2015). Additionally, as relevant to the instant appeal, the new version specifically addressed maintenance, providing that the parties could agree (1) that maintenance was nonmodifiable in amount, (2) that maintenance was nonmodifiable in duration, or (3) that maintenance was nonmodifiable in both amount and duration. 750 ILCS 5/502(f) (West Supp. 2015). 8 In other words, the maintenance provision allowed the parties to make maintenance as a whole nonmodifiable or to select a single aspect of the obligation to make nonmodifiable. If the parties did not agree that maintenance was nonmodifiable, either in whole or in part, then maintenance was modifiable upon a substantial change of circumstances. 750 ILCS 5/502(f) (West Supp. 2015). ¶ 31 In the case at bar, the clear language of the marital settlement agreement shows that the parties intended that respondent’s maintenance obligation be nonmodifiable under section 502(f). The agreement set forth a schedule of payments to be made over eight years, and expressly provided that “[s]aid maintenance payments shall be non-modifiable pursuant to Section 502(f) of the Illinois Marriage and Dissolution of Marriage Act.” We cannot imagine a clearer expression of an intent to make the obligation nonmodifiable—not only did the agreement expressly provide that the obligation was nonmodifiable, but it cited the applicable provision of the Act. ¶ 32 Respondent’s contention that the agreement was required to expressly include the terms “amount, duration, or both” has no support in the language of the statute. If the legislature had intended that the parties were required to specifically state whether the nonmodifiability applied to amount, duration, or both, it certainly could have said so. Indeed, it included such a 8 The new version also kept in place the catchall provision that the parties could expressly preclude or limit modification of other terms set forth in the judgment. 750 ILCS 5/502(f) (West Supp. 2015). 15  No. 1-19-2116 requirement in the very same section: section 502(f) provides that the dissolution judgment “may expressly preclude or limit modification of other terms set forth in the judgment if the agreement so provides.” 750 ILCS 5/502(f) (West Supp. 2015). Instead, it is clear that the legislature was intending to provide parties with more flexibility as to maintenance provisions, allowing them to make portions of the obligation nonmodifiable while leaving others modifiable. There is nothing to suggest that the failure to specifically designate that the nonmodifiability applied to the maintenance obligation as a whole renders the obligation modifiable. This would be the height of exalting form over substance—because the parties failed to use the magic words, the obligation would become modifiable even despite a clear expression that they intended it to be nonmodifiable. There is no suggestion that the legislature intended such a result, and we will not infer it from the language of the amended Act. In the absence of any evidence that the nonmodifiability was intended to apply to only one aspect of the maintenance obligation, the trial court properly determined that the parties intended that the entire maintenance obligation was nonmodifiable. Consequently, the trial court properly denied respondent’s motion to modify the judgment. ¶ 33 CONCLUSION ¶ 34 The trial court’s denial of respondent’s motion to modify the dissolution judgment is affirmed, where the language of the marital settlement agreement provided that the maintenance obligation was nonmodifiable under section 502(f) of the Act, and where there is nothing to suggest that the nonmodifiability provision was intended to apply to only one aspect of the maintenance obligation. ¶ 35 Affirmed. 16 No. 1-19-2116 No. 1-19-2116 Cite as: In re Marriage of Dynako, 2020 IL App (1st) 192116 Decision Under Review: Appeal from the Circuit Court of Cook County, No. 2015 D 002531; the Hon. David Haracz, Judge, presiding. Attorneys August Staas, of Park Ridge, for appellant. for Appellant: Attorneys Betsy Dynako, n/k/a Betsy Zacate, pro se. for Appellee: 17

2020-12-03 22:03:49.782491+00

http://www.illinoiscourts.gov/Opinions/AppellateCourt/2020/1stDistrict/1192619.pdf

2020 IL App (1st) 192619 Nos. 1-19-2619, 1-19-2620 (cons.) Fourth Division December 3, 2020 ______________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ______________________________________________________________________________ ) WENDY HARTLEY, as Special Administrator of the ) Estate of Kevin Hartley, Deceased, ) ) Plaintiff-Appellee, ) ) Appeal from the Circuit Court v. ) of Cook County. ) NORTH AMERICAN POLYMER COMPANY, LTD., ) No. 18 L 004262 an Illinois Corporation, and SAMAX ENTERPRISES, ) INC., a New York Corporation, ) The Honorable ) Melissa A. Durkin, Defendants and Third-Party Plaintiffs-Appellants ) Judge Presiding. ) (Tony Hartley, Individually and d/b/a Hartley’s ) Painting, ) Third-Party Defendant-Appellee). ) ) ______________________________________________________________________________ PRESIDING JUSTICE GORDON delivered the judgment of the court, with opinion. Justices Hall and Lampkin concurred in the judgment and opinion. OPINION ¶1 Plaintiff Wendy Hartley filed a wrongful death lawsuit based on products liability and negligence after her son, Kevin Hartley, died from inhaling fumes from a product manufactured by defendant Samax Enterprises, Inc. (Samax) and sold by defendant North American Product Company, Ltd. (NAPCO). Defendants, in turn, filed third-party complaints for contribution against Tony Hartley and his business, Hartley’s Painting (collectively,  Nos. 1-19-2619, 1-19-2620 (cons.) Hartley), decedent’s uncle and the owner of the business where decedent was working at the time of his death. Plaintiff and Hartley entered into a settlement agreement, settling any claims between plaintiff and Hartley for $50,000, and sought a finding that the settlement was made in good faith. The trial court initially declined to enter a good faith finding but, after granting a motion to reconsider, entered an order finding that the settlement between plaintiff and Hartley was made in good faith. Defendants appeal 1 and, for the reasons that follow, we reverse. ¶2 BACKGROUND ¶3 On April 26, 2018, plaintiff was appointed as special administrator of decedent’s estate and, on the same day, filed a complaint against defendant NAPCO; defendant Samax was added as a defendant on June 29, 2018, when plaintiff filed an amended complaint. The amended complaint alleged that Samax manufactured, and NAPCO sold, a product called “NAPCO White Lightning Low Odor Stripper,” which was used in bathtub refinishing and which contained a volatile chemical known as methylene chloride. Decedent, who performed rehabilitation and construction work, was 21 years old and used the product on April 27, 2017, while refinishing a bathtub at an apartment complex in Nashville, Tennessee. Decedent was wearing a respirator mask and gloves, but was overcome by fumes from the product and was rendered unconscious; he died the next day. ¶4 The complaint set forth two causes of action against each defendant: one for strict products liability and one for negligence. Both alleged that the product was unreasonably dangerous and 1 Defendants NAPCO and Samax initially filed separate appeals, which were consolidated on January 21, 2020. NAPCO and Samax have adopted each other’s briefs on appeal, while plaintiff has adopted Hartley’s brief and did not file one of her own. 2  Nos. 1-19-2619, 1-19-2620 (cons.) toxic, and that defendants did not adequately warn users about the danger and did not adequately test the product to ensure that it was safe for its reasonable anticipated use. ¶5 On July 24, 2018, NAPCO filed a third-party complaint for contribution against Hartley, alleging that, at the time of decedent’s death, he was employed by Hartley. NAPCO alleged that Hartley was negligent in failing to properly train or supervise decedent with respect to working with products containing methylene chloride and failed to provide decedent with proper protection equipment. NAPCO alleged that, to the extent that any judgment was entered against NAPCO in plaintiff’s litigation, it was entitled to contribution from Hartley for any damages in excess of NAPCO’s pro rata share of liability. ¶6 On December 11, 2018, plaintiff filed a motion for a good faith finding, claiming that Hartley, through his insurance carrier, had offered $50,000 to settle directly with plaintiff in order to extinguish any potential liability. Plaintiff accepted the settlement offer and requested a finding that the settlement was made in good faith as a result of arm’s-length settlement negotiations. Plaintiff claimed that the settlement was reached after an arm’s-length negotiation between plaintiff’s counsel and counsel hired by Hartley’s insurance carrier and was for a substantial sum of money. Additionally, plaintiff claimed that Hartley had “numerous defenses to [NAPCO’s] claims against him, including jurisdictional defenses, choice of law defenses and liability defenses.” 2 ¶7 On January 4, 2019, Hartley filed a motion to dismiss the third-party complaint pursuant to section 2-619 of the Code of Civil Procedure (Code) (735 ILCS 5/2-619 (West 2018)), based on the settlement or, alternatively, based on Tennessee law. Hartley claimed that the settlement 2 At the time of the motion, Hartley had not yet filed any responsive pleadings to the third-party complaint. 3  Nos. 1-19-2619, 1-19-2620 (cons.) with plaintiff was made in good faith and that there was no evidence of any fraud or collusion. Hartley also claimed that he had an insurance policy with Ohio Security Insurance Company, which “has taken the position that the Third Party Complaint is not covered under Tony Hartley’s CGL policy because it contains (as is typical), an employer’s liability exclusion.” Therefore, if Hartley was found to be the employer of decedent, as alleged in the third-party complaint, Hartley’s insurance policy would not apply and Hartley would not be able to pay any judgment that was entered against him, meaning that “NAPCO has a real possibility of recovering $0 on its third party claim against” him. ¶8 In the alternative, Hartley claimed that the third-party claim should be governed by Tennessee law, as the alleged negligence occurred in Tennessee. In that case, Hartley claimed that the third-party complaint should be dismissed because there was no third-party contribution available under Tennessee law under the circumstances set forth in the complaint. ¶9 On January 14, 2019, Samax filed a motion for leave to file a third-party complaint against Hartley, which was granted on January 17, 2019. Samax’s third-party complaint was similar to NAPCO’s, in that it alleged that decedent was employed by Hartley at the time of his death and Hartley was negligent in failing to train and supervise decedent with respect to the use of products containing methylene chloride and failed to provide the proper safety equipment to decedent. ¶ 10 On January 17, 2019, defendants filed a joint motion for limited discovery, claiming that they needed discovery concerning the settlement, given that Hartley was decedent’s uncle and was “attempting to settle with Plaintiff for peanuts compared to his potential exposure.” Defendants claimed that the discovery propounded so far showed that Hartley had settled with the Tennessee Occupational Safety and Health Administration (TOSHA) for 13 violations of 4  Nos. 1-19-2619, 1-19-2620 (cons.) regulations in connection with decedent’s death, 12 of which were marked as “ ‘[s]erious.’ ” Additionally, defendants pointed to the familial relationship between plaintiff and Hartley, and noted that plaintiff had not sued Hartley directly. Defendants claimed that “[t]he parties and the court need to ascertain the relationship between the parties, the extent to which that familial relationship impacted any settlement negotiations, the limits of any applicable insurance policies, and the conduct of the parties.” Accordingly, defendants sought limited discovery in the form of interrogatories, requests for production, and the depositions of plaintiff and Hartley. ¶ 11 On the same day, the trial court entered an order granting defendants “leave to issue written discovery limited to insurance held by Tony Hartley and communications among the parties relating to settlement.” Defendants issued written discovery to Hartley and three insurance companies. On February 27, 2019, Hartley filed a motion to quash, claiming that he had responded to any appropriate discovery requests and that defendants’ remaining requests, as well as their subpoenas to the insurers, were overly broad and irrelevant to the issue of the good-faith finding. ¶ 12 Attached to Hartley’s motion to quash were copies of his discovery responses. In his answers to interrogatories, Hartley indicated that the only discussions concerning settlement occurred between plaintiff’s attorney and Hartley’s attorney, and Hartley did not have any communications with plaintiff himself. Hartley also indicated that he had an insurance policy with Ohio Security Insurance Company that had a limit of $1 million for each occurrence. However, Hartley “is aware that Ohio Security Insurance Company has taken the position that the Third Party Complaint is not covered under Tony Hartley’s CGL policy because it contains an employer’s liability exclusion.” Hartley’s response to defendants’ requests to produce 5  Nos. 1-19-2619, 1-19-2620 (cons.) indicated that he produced e-mails between the attorneys regarding settlement and a copy of his insurance policy. ¶ 13 On March 19, 2019, defendants filed a joint motion for additional discovery, which requested the depositions of plaintiff and Hartley, and an in camera inspection of documents responsive to the subpoenas issued to the insurance companies. On March 20, 2019, Hartley filed a response to the motion, objecting to any additional discovery. Hartley claimed that defendants had “an abundance of discovery in their possession,” totaling over 800 pages. ¶ 14 On March 21, 2019, the trial court entered an order granting Hartley’s motion to quash and denying defendants’ motion for additional discovery. ¶ 15 On March 21, 2019, NAPCO filed a motion for leave to file an amended third-party complaint. NAPCO noted that the original third-party complaint alleged that decedent was an employee of Hartley’s business, but claimed that documents produced through the discovery process led NAPCO to believe that decedent was an independent contractor, not an employee, including evidence that decedent purchased his own respirator and paid for his own training, that Hartley did not have worker’s compensation coverage for decedent, and that decedent had been issued an IRS Form 1099 for his work. Accordingly, NAPCO sought to amend the third- party complaint to identify decedent as “an independent contractor, employee, or agent” of Hartley. On March 26, 2019, Samax filed a similar motion, seeking to amend its third-party complaint. The motions were granted, and both defendants filed amended third-party complaints on April 3, 2019. ¶ 16 On April 11, 2019, NAPCO filed its response to plaintiff’s motion for a good-faith finding and Hartley’s motion to dismiss pursuant to settlement. NAPCO argued that the settlement between plaintiff and Hartley was not made in good faith because (1) there was a close personal 6  Nos. 1-19-2619, 1-19-2620 (cons.) relationship between plaintiff and Hartley; (2) Hartley’s $50,000 settlement on a $1 million insurance policy was “grossly disproportionate” to Hartley’s fair share of liability, especially given the TOSHA violations; (3) plaintiff never sued Hartley directly; and (4) Hartley attempted to rely on the “employee” exclusion of his policy to justify the settlement figure throughout the litigation, but only recently disclosed that decedent might be an independent contractor, not an employee. Samax filed a similar response on the same day. ¶ 17 On June 26, 2019, the trial court entered an order denying the request for a good-faith finding. The court first found that plaintiff and Hartley had satisfied their initial burden of proof by showing a valid settlement agreement. The court then proceeded to consider the totality of the facts, including consideration of four factors, in determining whether the settlement was made in good faith. The court first discussed the reasonableness of the amount paid compared to the settlor’s fair share of liability, and found that Hartley’s fair share of liability was “potentially significant,” especially given that TOSHA issued a report that was critical of the respirator that decedent was wearing and of Hartley for supplying it. The court found that the $50,000 settlement represented 5% of the available liability coverage under Hartley’s insurance policy. The court noted that the policy contained an exclusion for employees, but found that “it is not clear that the exclusion would apply in this case,” as records showed that decedent was paid as an independent contractor and received an IRS Form 1099 and no worker’s compensation claim was filed. Thus, the court found that defendants “have shown that the settlement amount is not reasonable compared to Tony Hartley’s fair share of liability.” ¶ 18 The court next considered the relationship between the settling parties. The court found that the parties were related by marriage and that, even though plaintiff’s marriage with Hartley’s brother had been dissolved 15 years ago, takers in the wrongful death action included 7  Nos. 1-19-2619, 1-19-2620 (cons.) plaintiff’s former husband, another son, and a daughter. The court further found that plaintiff’s former husband and remaining son both also worked for Hartley and were, in fact, present when decedent’s death occurred. The court also noted that plaintiff and Hartley had “known each other for years.” Accordingly, the court found that “[t]heir agreement to settle this wrongful death case for only $50,000 has the appearance of collusion.” ¶ 19 The court then considered whether the plaintiff sued the settlor, and found that plaintiff had not sued Hartley. While the court acknowledged that the complaint was based on strict liability due to the known dangers of methylene chloride, the court found that plaintiff “chose not to sue her former brother-in-law for negligence even though Tony Hartley supplied an inferior respirator for [decedent’s] use.” The court found that this “also bears the appearance of collusion.” ¶ 20 Finally, the court considered whether there were efforts to conceal the circumstances surrounding the settlement. The court noted that defendants claimed that plaintiff and Hartley attempted to conceal decedent’s status as an independent contractor, but found that “the circumstances surrounding settlement do not appear to be in dispute,” and the parties were able to conduct discovery regarding the settlement. Accordingly, the court found that this factor was “neutral” in its analysis. ¶ 21 Ultimately, the court found: “In considering the totality of the circumstances, the court does not find that the proposed settlement of all claims against Tony Hartley d/b/a Hartley’s Painting were settled in good faith. The settlement amount represents a small portion of Tony Hartley’s potential liability, and the familial relationship between the setting parties has the appearance of collusion.” 8  Nos. 1-19-2619, 1-19-2620 (cons.) Accordingly, the court denied the motions for a good-faith finding. ¶ 22 On July 26, 2019, Hartley filed a motion for reconsideration of the trial court’s June 26, 2019, order. Hartley claimed that the court made several mistakes of fact in its analysis. First, Hartley claimed that there was no evidence that he had supplied decedent with the respirator he was wearing at the time of his death and the only evidence was that decedent had purchased his own respirator. Additionally, Hartley claimed that there was no evidence that decedent’s father and brother were present when the incident occurred; instead, the only evidence was that “they were elsewhere.” 3 Hartley also claimed that the court had made a mistake of law in not applying a preponderance of the evidence standard to overcome the presumption of good faith. Hartley claimed that there was no evidence that Hartley had supplied the respirator, no evidence that family members were present, and no evidence of any collusion, so defendants could not show by a preponderance of the evidence that the settlement was not made in good faith. ¶ 23 On November 26, 2019, the trial court entered an order granting Hartley’s motion for reconsideration. The court found that it had made an error of fact when it found that Hartley had supplied the respirator decedent was using. The court found that “[t]he error of fact is critical, because it wrongly attributes fault to Tony Hartley. As a result, the court did not properly assess potential liability.” Additionally, the court found: 3 It is not clear what relationship decedent’s brother has with Hartley or his business. In Hartley’s motion for reconsideration, Hartley claimed that “the only indications in the Tennessee OSHA report are that [decedent’s father and brother] were elsewhere in the Nashboro Village apartment complex, working on their own refinishing projects (as decedent was), and ultimately found the decedent when he had not been heard from for some time.” However, in his reply in support for his motion to reconsider, Hartley claimed that “decedent’s brother (Plaintiff’s son) who was present when decedent was found after the incident had occurred has never had any business relation whatsoever with [Hartley].” (Emphasis in original.) Thus, it appears that Hartley’s position is that the brother is involved in the same type of work and was working on the same project, but was doing so independently of Hartley’s work. 9  Nos. 1-19-2619, 1-19-2620 (cons.) “The court further erred in inferring the appearance of collusion between the settling parties where there was no affirmative evidence of collusion in the record. Extensive discovery was taken to probe communications between various members of the Hartley family. Nevertheless, the evidence in this case points to an arm’s length settlement negotiated by counsel. There is no direct evidence that Tony Hartley or [plaintiff] were involved in negotiating the proposed settlement. The court drew an inference from a familial relationship; the inference was not drawn from testimonial or documentary evidence.” The court found that it had “erred in two ways. The court overstated Tony Hartley’s potential liability, and the court read too much into the relationship between the settling parties.” Consequently, the court granted Hartley’s motion for reconsideration and made a good-faith finding. The court also found that, pursuant to Illinois Supreme Court Rule 304(a) (eff. Mar. 8, 2016), there was no just reason to delay appeal. Both defendants filed timely notices of appeal, and these appeals follow. ¶ 24 ANALYSIS ¶ 25 On appeal, defendants claim that the trial court erred in granting Hartley’s motion for reconsideration and making a good-faith finding. Under the Joint Tortfeasor Contribution Act (Contribution Act), where two or more persons are subject to tort liability arising out of the same wrongful death, there is a right to contribution among them. 740 ILCS 100/2(a) (West 2018). However, where a release is given in good faith by the claimant to one of the joint tortfeasors, that tortfeasor is discharged from all liability for contribution, and the recovery against the remaining tortfeasors is reduced by the amount of the settlement. 740 ILCS 100/2(c), (d) (West 2018). Our supreme court has recognized that the Contribution Act seeks 10  Nos. 1-19-2619, 1-19-2620 (cons.) to promote two important public policies: the encouragement of settlements and the equitable apportionment of damages among tortfeasors. Antonicelli v. Rodriguez, 2018 IL 121843 , ¶ 13; Johnson v. United Airlines, 203 Ill. 2d 121 , 133 (2003). ¶ 26 “The ‘good faith’ of a settlement is the only limitation which the [Contribution] Act places on the right to settle and it is the good-faith nature of a settlement that extinguishes the contribution liability of the settling tortfeasor.” Johnson, 203 Ill. 2d at 128 ; Antonicelli, 2018 IL 121843 , ¶ 14. When a court is asked to determine whether a settlement was negotiated in good faith within the meaning of the Contribution Act, the settling parties carry the initial burden of making a preliminary showing of good faith by a preponderance of the evidence. Johnson, 203 Ill. 2d at 132 . The objecting party then has the burden of proving the absence of good faith by a preponderance of the evidence. Johnson, 203 Ill. 2d at 132 . “At a minimum,” the settling parties must show the existence of a legally valid settlement agreement, although other factual evidence may be necessary before the court may make its initial determination. Johnson, 203 Ill. 2d at 132 . As noted, once the settling parties have made a preliminary showing of good faith, the party challenging the good faith of the settlement has the burden to prove the absence of good faith by a preponderance of the evidence. Johnson, 203 Ill. 2d at 132 . ¶ 27 The Contribution Act does not define the term “good faith,” and there is no single, precise formula for determining what constitutes “good faith” that would be applicable in every case. Johnson, 203 Ill. 2d at 134 . Our supreme court has made clear that “[a] settlement will not be found to be in good faith if it is shown that the settling parties engaged in wrongful conduct, collusion, or fraud.” Johnson, 203 Ill. 2d at 134 . Additionally, a settlement will not satisfy the good-faith requirement if it conflicts with the terms of the Contribution Act or is inconsistent 11  Nos. 1-19-2619, 1-19-2620 (cons.) with the policies underlying the Contribution Act. Johnson, 203 Ill. 2d at 134 . While no factor is determinative, other considerations may also include “whether the settlement amount was reasonable and fair, whether the parties had a close personal relationship, whether the plaintiff sued the settling party, or whether information about the settlement agreement was concealed.” Palacios v. Mlot, 2013 IL App (1st) 121416 , ¶ 22 (citing Wreglesworth v. Arctco, Inc., 317 Ill. App. 3d 628 , 633 (2000)); see also Ross v. Illinois Central R.R. Co., 2019 IL App (1st) 181579 , ¶ 26 (discussing same factors). ¶ 28 In the case at bar, the trial court considered these four factors, both in its original order denying the motion for a good-faith finding and in its order granting the motion to reconsider. In its original order, the court found that (1) as to the first factor, the settlement amount was not reasonable compared to Hartley’s fair share of liability; (2) as to the second factor, the relationship of the parties and the amount of the settlement had the appearance of collusion; (3) as to the third factor, the fact that plaintiff chose not to sue Hartley “even though Tony Hartley supplied an inferior respirator for [decedent’s] use” further supported an appearance of collusion; and (4) as to the fourth factor, there was no evidence that plaintiff and Hartley had attempted to conceal the circumstances surrounding the settlement, so that factor was “neutral.” Thus, in considering the four factors, the court found that three of the factors weighed against a good-faith finding, while one was neutral. Later, in granting the motion to reconsider, the court addressed the first two factors again, finding (1) as to the first factor, the fact that decedent provided his own respirator diminished Hartley’s potential liability, but the factor still weighed against a good-faith finding, and (2) as to the second factor, even though the parties were related through marriage, the evidence established that the settlement was 12  Nos. 1-19-2619, 1-19-2620 (cons.) reached through arm’s-length negotiations, making that factor “neutral.” Thus, after the second order, two of the factors weighed against a good-faith finding, while two were neutral. ¶ 29 “Ultimately, however, whether a settlement satisfies the good-faith requirement as contemplated by the Contribution Act is a matter left to the discretion of the trial court based upon the court’s consideration of the totality of the circumstances.” Johnson, 203 Ill. 2d at 135 . “This totality-of-the-circumstances approach allows trial courts to give effect to the strong public policy favoring the peaceful settling of claims, and at the same time allows trial courts to be on guard for any evidence of unfair dealing, collusion, or wrongful conduct by the settling parties.” Dubina v. Mesirow Realty Development, Inc., 197 Ill. 2d 185 , 191 (2001). On appeal, we review a court’s good-faith determination for an abuse of discretion. Johnson, 203 Ill. 2d at 135 . “A trial court abuses its discretion where its ruling is so arbitrary or illogical that no reasonable person would adopt it.” Daniels v. ArvinMeritor, Inc., 2019 IL App (1st) 190170 , ¶ 96. ¶ 30 In the case at bar, the trial court initially determined that defendants had shown that the settlement between plaintiff and Hartley was not a good-faith settlement, but ultimately reconsidered and made a good-faith finding after realizing that it had “overstated” Hartley’s potential liability and “read too much into the relationship between the settling parties.” Defendants contend that the trial court was correct in its initial determination, and erred in later making a good-faith finding. After considering the totality of the circumstances, we agree. ¶ 31 First, we cannot overlook the elephant in the room: the relationship between plaintiff and Hartley. In its original order, the trial court found that this factor weighed against a good-faith finding. The court found that the parties were related by marriage and that, even though plaintiff’s marriage with Hartley’s brother had been dissolved 15 years ago, takers in the 13  Nos. 1-19-2619, 1-19-2620 (cons.) wrongful death action included plaintiff’s former husband, another son, and a daughter. The court further found that plaintiff’s former husband and remaining son both also worked for Hartley and were, in fact, present when decedent’s death occurred. The court also noted that plaintiff and Hartley had “known each other for years.” Accordingly, the court found that “[t]heir agreement to settle this wrongful death case for only $50,000 has the appearance of collusion.” Later, in its order granting the motion to reconsider, the trial court found that it had “read too much into the relationship between the settling parties.” The court found that it had “erred in inferring the appearance of collusion between the settling parties where there was no affirmative evidence of collusion in the record.” The court noted that “[e]xtensive discovery was taken to probe communications between various members of the Hartley family.” Nevertheless, the evidence in this case points to an arm’s length settlement negotiated by counsel.” The court concluded that “[t]here is no direct evidence that Tony Hartley or [plaintiff] were involved in negotiating the proposed settlement. The court drew an inference from a familial relationship; the inference was not drawn from testimonial or documentary evidence.” However, we cannot say that the trial court was incorrect in its initial findings, in the exercise of its discretion, that the relationship between the parties weighed against a finding of good faith. The evidence showed that either decedent’s father and brother (1) worked for Hartley, or (2) did work for Hartley as an independent contractor, or (3) worked on the same project as decedent where Hartley was a major contractor or subcontractor. ¶ 32 Hartley attempts to minimize any relationship, noting that the marriage between plaintiff and Hartley’s brother had been dissolved 15 years earlier, and claiming that “[a] former familial relation[ship] does not automatically equate to a close relationship.” While it is certainly true that a since-ended familial relationship may not be close—indeed, even blood 14  Nos. 1-19-2619, 1-19-2620 (cons.) relatives may not have a close relationship—it is also true that all of the evidence establishes that, in this case, Hartley was still closely intertwined with plaintiff’s family. Most obviously, decedent was working for Hartley—his uncle—at the time of his death, as was decedent’s father, Hartley’s brother (or working on the same project). Decedent’s brother was also present at the worksite at the time of decedent’s death (although Hartley represented below that the brother did not work for him). Additionally, while plaintiff herself may no longer legally be in Hartley’s family, that is not the case with respect to decedent’s other family members, namely, his father, brother, and sister, all of whom are Hartley’s blood relatives and all of whom would be takers under the Wrongful Death Act. See 740 ILCS 180/2(a) (West 2018) (the damages recovered in a wrongful-death action are exclusively for the benefit of a decedent’s surviving spouse and next of kin). In short, this is not a case of far-flung relatives with no connection other than their lineage. Instead, all of the evidence in the record shows that this is a case in which family members worked together in a business run by another family member, meaning that there is both a familial and economic connection between Hartley and plaintiff’s family, in that the family members either worked for, with, or on the same projects as Hartley. ¶ 33 Additionally, plaintiff chose not to sue Hartley directly or bring a workers’ compensation case under Tennessee law. Hartley was only made part of the case when he was named as a defendant in defendants’ third-party complaints for contribution. In considering this factor below, the trial court found that while the complaint was based on strict liability due to the known dangers of methylene chloride, plaintiff nevertheless “chose not to sue her former brother-in-law for negligence even though Tony Hartley supplied an inferior respirator for [decedent’s] use.” The court found that this “also bears the appearance of collusion.” While the trial court in its order granting the motion for reconsideration later found that decedent, not 15  Nos. 1-19-2619, 1-19-2620 (cons.) Hartley, had purchased the respirator at issue, the court did not alter its conclusion that the failure to sue Hartley directly weighed against a good-faith finding. ¶ 34 At a March 21, 2019, hearing, plaintiff’s counsel addressed the reasons for not suing Hartley directly: “We had our reasons for not wanting to sue Tony Hartley in the first place. Number one is because we still believe that after the Court analyzes it, [the court is] going to determine that he’s our employer, so we wouldn’t be able to sue him. But even if we were able to sue him under some independent contract[or] theory, we’re not required to do that. My client has always viewed this as a straight products liability case against the manufacturers of the product that killed her son, and that’s the bottom line.” It is true that plaintiff is not required to sue Hartley, or bring a workers’ compensation case against him, but normally, one or the other would occur, and we must consider it as a factor. ¶ 35 Courts reviewing good-faith findings have found that a close personal connection between the settling parties is considered in making a finding that the settlement was made in good faith, especially where the plaintiff chose not to sue the settling tortfeasor directly or bring a workers’ compensation case. For instance, in Warsing v. Material Handling Services, Inc., 271 Ill. App. 3d 556 , 558 (1995), abrogated in part on other grounds by Johnson, 203 Ill. 2d at 132 , 4 the nonsettling party objected to a good-faith finding partly on the basis that the plaintiff’s family and the family of the settling tortfeasor “were very close friends.” In 4 Our supreme court in Johnson found that the party challenging the good faith of a settlement must establish the absence of good faith by a preponderance of the evidence. Johnson, 203 Ill. 2d at 132 . Prior to that time, appellate courts were split on the standard of proof, with most applying a “clear and convincing” standard, while others applied a “preponderance of the evidence” standard. Johnson, 203 Ill. 2d at 130-32 . 16  Nos. 1-19-2619, 1-19-2620 (cons.) considering whether the totality of the circumstances supported a good-faith finding, the appellate court found that the close personal relationship between the parties and the fact that no valid reason was proffered as to why the settling tortfeasor was not sued directly meant that “[t]he only reasonable inference to be drawn is that plaintiff did not do so because of the relationship between the parties.” Warsing, 271 Ill. App. 3d at 560. Similarly, the appellate court in Ross considered the “strong affinity and close relationship” between the plaintiff and the settling tortfeasor to support a finding that the settlement was not made in good faith, where the plaintiff had developed a psychological dependence on the settling tortfeasor—his doctor— and had elected not to sue the doctor himself. Ross, 2019 IL App (1st) 181579 , ¶ 35. ¶ 36 Hartley points to Wasmund v. Metropolitan Sanitary District of Greater Chicago, 135 Ill. App. 3d 926 (1985), abrogated in part on other grounds by Johnson, 203 Ill. 2d at 132 , arguing that a personal relationship alone is not sufficient to show that a settlement was not made in good faith. In that case, the parties were “friends” at the time of the accident at issue, and later married, which the nonsettling tortfeasor claimed was evidence of collusion. Wasmund, 135 Ill. App. 3d at 930. The appellate court disagreed, finding that “[w]e do not believe that the fact that the two were friends is sufficient, without more, to taint the settlement with an indicia of collusion.” Wasmund, 135 Ill. App. 3d at 930. ¶ 37 We agree with Hartley that the familial relationship is not a dispositive factor in itself. Indeed, our supreme court has cautioned that “[e]mphasis should not be placed on any single factor.” Johnson, 203 Ill. 2d at 139 . However, while this relationship is not dispositive, it certainly is a relevant factor to consider in determining whether the settlement was made in good faith, despite Hartley’s contention to the contrary. 17  Nos. 1-19-2619, 1-19-2620 (cons.) ¶ 38 Another factor that we look to in examining the settlement is the amount of the settlement, which “must be viewed in relation to the probability of recovery, the defenses raised, and the settling party’s potential legal liability.” Johnson, 203 Ill. 2d at 137 . In the case at bar, plaintiff and Hartley settled for $50,000, which defendants contend is unreasonable given Hartley’s level of responsibility and the presence of a $1 million insurance policy. In both of the trial court’s orders, the court found that this factor weighed against a good-faith finding. In its original order, the court found that Hartley’s fair share of liability was “potentially significant,” especially given that TOSHA issued a report that was critical of the respirator that decedent was wearing and of Hartley for supplying it. The court found that the $50,000 settlement represented 5% of the available liability coverage under Hartley’s insurance policy. The court noted that the policy contained an exclusion for employees, but found that “it is not clear that the exclusion would apply in this case,” as records showed that decedent was paid as an independent contractor and received an IRS Form 1099 and no worker’s compensation claim was filed. Thus, the court found that defendants “have shown that the settlement amount is not reasonable compared to Tony Hartley’s fair share of liability.” Later, in its order granting the motion to reconsider, the court found that it had made an error of fact when it found that Hartley had supplied the respirator decedent was using. The court found that “[t]he error of fact is critical, because it wrongly attributes fault to Tony Hartley. As a result, the court did not properly assess potential liability.” However, the court found that this factor “still weighs in favor of [defendants], but the fact that [decedent] supplied his own respirator diminished Tony Hartley’s potential liability.” ¶ 39 The record shows that TOSHA found that Hartley had committed 13 violations of safety regulations in connection with decedent’s death, 12 of which were “serious” violations: 18  Nos. 1-19-2619, 1-19-2620 (cons.) ¶ 40 First, Hartley was cited for a “serious” violation of 29 C.F.R. 1910.134(e)(1) in that “[t]he employer did not provide a medical evaluation to determine the employee’s ability to use a respirator in the workplace before the employee was required to use the respirator.” 5 ¶ 41 Second, Hartley was cited for a “serious” violation of 29 C.F.R. 1910.134(f)(2) in that “[t]he employer did not ensure employees were fit tested prior to initial use of a respirator in the workplace.” ¶ 42 Third, Hartley was cited for a “serious” violation of 29 C.F.R. 1910.1052(c)(1) in that “[t]he employer did not ensure an employee was not exposed to an airborne concentration of methylene chloride (MC) in excess of twenty-five parts per million (25 ppm) as an 8-hour TWA when using chemical stripper containing MC to refinish a bathtub.” ¶ 43 Fourth, Hartley was cited for a “serious” violation of 29 C.F.R. 1910.1052(d)(1)(i) in that “[t]he employer did not determine employee exposure to methylene chloride (MC) during use of a chemical stripper containing MC.” ¶ 44 Fifth, Hartley was cited for a “serious” violation of 29 C.F.R. 1910.1052(d)(2) in that “[t]he employer did not perform initial monitoring to determine employee exposure to methylene chloride (MC) during use of a chemical stripper containing MC.” ¶ 45 Sixth, Hartley was cited for a “serious” violation of 29 C.F.R. 1910.1052(f)(1) in that “[t]he employer did not institute effective engineering controls and work practices to reduce 5 The violations use the term “employer” and “employee.” Under 29 C.F.R. 1910.2, an “[e]mployer means a person engaged in a business affecting commerce who has employees, but does not include the United States or any State or political subdivision of a State.” 29 C.F.R. 1910.2(c). An “[e]mployee means an employee of an employer who is employed in a business of his employer which affects commerce.” 29 C.F.R. 1910.2(d). The TOSHA report provided that “[i]t is unclear whether the [redacted] are subcontractors of the employer or employees; for the purpose of this report they are referenced as employees.” However, as noted, Hartley did not challenge any of the TOSHA violations. 19  Nos. 1-19-2619, 1-19-2620 (cons.) employee exposure to methylene chloride concentrations below the permissible exposure limits.” ¶ 46 Seventh, Hartley was cited for a “serious” violation of 29 C.F.R. 1910.1052(g)(2)(i) in that “[t]he employer had not established and implemented a written respiratory protection program with worksite specific procedures when respirators were required to be work in the workplace.” Such a program would include, at minimum, procedures for selecting respirators for use in the workplace; medical evaluations of employees required to use respirators; fit testing procedures for tight-fitting respirators; procedures for proper use of respirators in routine and reasonably foreseeable emergency situations; procedures and schedules for cleaning, disinfecting, storing, inspecting, repairing, discarding, and otherwise maintaining respirators; procedures to ensure adequate air quality, quantity, and flow of breathing air for atmosphere-supplying respirators; training of employees in the respiratory hazards to which they are potentially exposed during routine and emergency situations; training of employees in the proper use of respirators, including putting on and removing them, any limitations on their use, and their maintenance; and procedures for regularly evaluating the effectiveness of the program. ¶ 47 Eighth, Hartley was cited for a “serious” violation of 29 C.F.R. 1910.1052(g)(3)(i) in that “[t]he employer permitted an employee to utilize a half-mask respirator when working with methylene chloride.” ¶ 48 Ninth, Hartley was cited for a “serious” violation of 29 C.F.R. 1910.1052(l)(1) in that “[t]he employer did not provide information and training on methylene chloride (MC) when the employee’s job involved using MC.” ¶ 49 Tenth, Hartley was cited for a “serious” violation of 29 C.F.R. 1910.1052(l)(3)(ii) in that “[t]he employer did not provide employees exposed to airborne concentrations of methylene 20  Nos. 1-19-2619, 1-19-2620 (cons.) chloride that exceeded or can reasonably be expected to exceed the action level with effective training.” ¶ 50 Eleventh, Hartley was cited for a “serious” violation of 29 C.F.R. 1910.1200(e)(1) in that “[t]he employer had not developed, implemented, and maintained a written hazard communication program which at least described how criteria for labels and other forms of warning, safety data sheets, and employee information and training would be met.” An adequate program would list the hazardous chemicals known to be present using an identity that is referenced on the safety data sheet; detail the methods the employer will use to inform employees of the hazards of non-routine tasks; contain the methods the employer will use to communicate information, with employees and other employers, concerning hazardous chemicals present on multi-employer worksites; detail hazardous chemical labeling requirements; detail provisions for a safety data sheet to exist in the workplace for each hazardous chemical which they use; and detail provisions for employee training. ¶ 51 Twelfth, Hartley was cited for a “serious” violation of 29 C.F.R. 1910.1200(h)(1) in that “[t]he employer did not train employees on hazardous chemicals in the work area.” ¶ 52 Thirteenth, Hartley was cited for an “other-than-serious” violation of a Tennessee Department of Labor and Workforce Development rule in that “[t]he employer did not report a fatality of an employee within eight hours.” ¶ 53 Hartley entered into an informal settlement agreement with TOSHA to address these violations, in which he did not contest any of the violations. Thus, Hartley’s potential liability with respect to decedent’s death may be considerable. ¶ 54 Hartley, however, contends that his liability is not clear, given that there is a question as to whether decedent was Hartley’s employee or an independent contractor at the time of his death. 21  Nos. 1-19-2619, 1-19-2620 (cons.) Hartley claims that the employee/independent contractor distinction affects both whether he would be liable in the underlying case, as well as whether his insurance policy would be applicable. According to him, if decedent was found to be an independent contractor, then Hartley would not be responsible for his death. Conversely, if decedent was found to be an employee, then Hartley’s insurance policy would not apply due to an employee exception, meaning that Hartley would be unable to pay any judgment against him. There is not enough in the record of this case for us to make a determination of the accuracy of that contention, even if we were able to make that determination. ¶ 55 We first note that a hearing on a good-faith finding is not the time to determine the merits of the parties’ underlying claims or to determine the parties’ relative culpability. Johnson, 203 Ill. 2d at 139 (“a trial court need not decide the merits of the tort case or rule on the relative liabilities of the parties before making a good-faith determination”). Nevertheless, we also cannot close our eyes to the evidence presented below, which includes numerous documents suggesting that decedent was an independent contractor, including an IRS Form 1099 for his work for Hartley, as well as the fact that Hartley did not have a worker’s compensation policy. If that is the case, then Hartley would certainly have a defense, as generally, one who employs an independent contractor is not liable for harm caused by the contractor’s acts or omissions, unless they have certain controls over the contractor, as we discuss in more detail below. See Carney v. Union Pacific R.R. Co., 2016 IL 118984 , ¶ 31. However, it is hard to believe that an unskilled worker, as the decedent appeared to be, would meet the requirements for an independent contractor. ¶ 56 Additionally, Hartley overstates the extent of that defense when he claims that “the law is entirely clear that [Hartley] would bear no liability for decedent’s conduct.” Contrary to 22 Nos. 1-19-2619, 1-19-2620 (cons.) Hartley’s contention, one who hires an independent contractor may still be liable for its own negligence when he retains some control over the independent contractor. Carney, 2016 IL 118984 , ¶ 33. “ ‘One who entrusts work to an independent contractor, but who retains the control of any part of the work, is subject to liability for physical harm to others for whose safety the employer owes a duty to exercise reasonable care, which is caused by his failure to exercise his control with reasonable care.’ ” Carney, 2016 IL 118984 , ¶ 33 (quoting Restatement (Second) of Torts § 414 (1965)). Thus, if Hartley retained control over the manner of decedent’s work, he would be liable for his own negligence in failing to exercise that control with reasonable care. The record shows that Hartley received numerous citations for TOSHA violations based on his failure to ensure that decedent was using defendants’ product safely. While Hartley correctly notes that the TOSHA violations alone do not establish a duty, such violations may be evidence of failure to exercise reasonable care where such a duty exists. Ross v. Dae Julie, Inc., 341 Ill. App. 3d 1065 , 1074 (2003); Miller v. Archer-Daniels-Midland Co., 261 Ill. App. 3d 872 , 879 (1994) (“Violations of Occupational Safety and Health Administration standards may constitute evidence of negligence but do not create a statutory duty.”). Consequently, if the evidence showed that Hartley had a duty to exercise reasonable care for decedent’s safety, the TOSHA violations would serve as evidence of a breach of that duty. As noted, we make no comment as to the strength of any defense that may ultimately be asserted, as that is not before us at this point in the litigation. Instead, we merely observe that Hartley’s potential liability is extensive, but is subject to the determination of whether decedent was an employee or independent contractor. 6 We also observe, however, that uncertainty about 6 We note that Hartley makes a number of arguments attacking the third-party complaints and raising defenses to them. However, in determining whether the settlement was made in good faith, we are concerned with plaintiff’s potential causes of action against Hartley, and his defenses to those, not the 23  Nos. 1-19-2619, 1-19-2620 (cons.) the strength of the case against Hartley was not one of the reasons raised by plaintiff’s counsel below when he explained to the trial court why Hartley was not sued directly. Thus, there is nothing in the record to suggest that this was a factor in deciding to settle for only $50,000. See Johnson, 203 Ill. 2d at 137 (noting that, despite the nominal amount of the settlement, the plaintiff had represented that the settling tortfeasor was not sued directly because extensive research on the matter indicated such a lawsuit would have little likelihood of success). ¶ 57 With respect to Hartley’s claims about his insurance policy, in addition to the evidence that decedent was an independent contractor, we also note that while, below, Hartley represented that his insurer was defending him under a reservation of rights, he has not provided any proof of this. Moreover, even if the insurer was contesting coverage, it does not necessarily follow that the insurer would have been successful. See Warsing, 271 Ill. App. 3d at 561 (finding unpersuasive the fact that, at the time of the settlement, it was not certain whether the insurance policy would apply). And again, plaintiff’s counsel did not list uncertainty about the availability of insurance proceeds as a reason for not suing Hartley directly. Thus, we cannot find that any uncertainty about the applicability of Hartley’s insurance policy explains the low settlement amount. ¶ 58 As noted, the determination of whether a settlement is made in good faith depends on the consideration of the totality of the circumstances. Johnson, 203 Ill. 2d at 135 . “This totality- of-the-circumstances approach allows trial courts to give effect to the strong public policy favoring the peaceful settling of claims, and at the same time allows trial courts to be on guard for any evidence of unfair dealing, collusion, or wrongful conduct by the settling parties.” merits of the third-party complaints. Accordingly, we need not discuss his claims with respect to defendants and their complaints against him. 24  Nos. 1-19-2619, 1-19-2620 (cons.) Dubina, 197 Ill. 2d at 191 . In the case at bar, the totality of the circumstances reveal that the settlement between plaintiff and Hartley is not a good faith settlement that comports with the purposes of the Contribution Act. The settling parties share a close personal relationship, which included decedent working for his uncle at the time of his death. Hartley’s potential liability for decedent’s death is considerable, where he was found to have violated numerous safety regulations, which he did not challenge. Despite this potential liability, plaintiff chose not to sue Hartley directly and the settlement was for a modest amount—$50,000—even though Hartley maintained an insurance policy that provided $1 million per occurrence in coverage. There is no explanation for the low amount of the settlement, other than Hartley’s representation that insurance coverage is not guaranteed. Hartley does have defenses to his liability, especially if decedent is found to have been an independent contractor, but plaintiff did not raise these defenses in explaining why she did not sue Hartley directly, so there is no suggestion that these defenses had any impact in determining the amount of the settlement. In sum, we must conclude that the trial court abused its discretion in finding the settlement to have been made in good faith, in light of the totality of the circumstances. ¶ 59 We recognize that plaintiff does not want Hartley to be part of this litigation, and that she would prefer to focus on the manufacturer and seller of the product that she alleges was responsible for her son’s death. However, the Contribution Act seeks to promote two important public policies: the encouragement of settlements and the equitable apportionment of damages among tortfeasors. Antonicelli, 2018 IL 121843 , ¶ 13; Johnson, 203 Ill. 2d at 133 . Permitting plaintiff to settle with Hartley under the circumstances present here would not serve the latter purpose, as it would remove a party who potentially bears a great deal of responsibility for decedent’s death, resulting in an apportionment of damages that is anything but equitable. This, 25  Nos. 1-19-2619, 1-19-2620 (cons.) plaintiff is not entitled to do and, consequently, we must reverse the trial court’s good-faith finding. ¶ 60 As a final matter, we note that defendants also claim that they were denied adequate discovery in order to properly respond to the issue of whether the settlement was made in good faith. Although we are reversing the trial court’s good-faith finding, we address this issue, as it is likely to recur on remand. The trial court is in the best position to decide what type of hearing is necessary to fully adjudicate the issue of good faith, and an evidentiary hearing is not necessarily required. Johnson, 203 Ill. 2d at 136 . Indeed, our supreme court has explained that the trial court may determine whether the settlement amount bears a reasonable relationship to the settling party’s relative culpability in the absence of such a hearing. Johnson, 203 Ill. 2d at 136 . However, as discussed above, one of the major issues affecting the trial court’s good-faith determination was the question of the parties’ relationship and its effect on the settlement. In fact, the trial court pointed to the fact that there was no “affirmative” evidence of collusion in granting the motion to reconsider. The only way to determine whether the parties’ relationship affected the settlement is to allow defendants to depose plaintiff and Hartley, which they were not permitted to do in challenging the settlement. On remand, therefore, if the trial court is asked to consider any future settlement between plaintiff and Hartley, defendants should be permitted whatever relevant discovery they need in order to properly address the good faith of any proposed settlement. ¶ 61 CONCLUSION ¶ 62 For the reasons set forth above, we reverse the trial court’s good-faith finding. The totality of the circumstances leading to the settlement show that the settlement was not entered into in good faith, where the parties had a close personal relationship, where Hartley had considerable 26  Nos. 1-19-2619, 1-19-2620 (cons.) potential liability, and where the settlement amount was modest compared to the limits of the insurance policy. Additionally, if the trial court is presented with any future settlement between plaintiff and Hartley, defendants should be permitted whatever relevant discovery is necessary to properly address the issue. ¶ 63 Reversed and remanded with instructions. 27 Nos. 1-19-2619, 1-19-2620 (cons.) No. 1-19-2619, 1-19-2620 (cons.) Cite as: Hartley v. North American Polymer Co., 2020 IL App (1st) 192619 Decision Under Review: Appeal from the Circuit Court of Cook County, No. 18 L 004262; the Hon. Melissa A. Dukin, Judge, presiding. Attorneys Michael D. Krause, Rachel D. Kiley, and Patrick W. Etchingham, for of Bollinger Connolly Krause LLC, of Chicago, for appellant Appellant: North American Polymer Company, Ltd. James P. McCarthy, Paul Van Lysebettens, and Paul B. O’Flaherty, Jr., of Gunty & McCarthy, of Chicago, for appellant Samax Enterprises, Inc. Attorneys Mathew K. Hargrave, of Best, Vanderlaan & Harrington, of for Chicago, for appellee Tony Hartley d/b/a Hartley’s Painting. Appellee: Eric D. Jones, of Tarpey, Jones & Schroeder, LLC, of Chicago, for appellee Wendy Hartley. 28

2020-12-03 23:00:27.86653+00

http://media.ca1.uscourts.gov/pdf.opinions/18-2053P-01A.pdf

United States Court of Appeals For the First Circuit No. 18-2053 UNITED STATES, Appellee, v. JOSE A. TIRADO-NIEVES, Defendant, Appellant. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO [Hon. Aida M. Delgado-Colón, U.S. District Judge] Before Lipez and Thompson, Circuit Judges. Kendys Pimentel-Soto, with whom Kendys Pimentel-Soto Law Office LLC was on brief, for appellant. Julia M. Meconiates, Assistant United States Attorney, with whom Rosa Emilia Rodríguez-Vélez, United States Attorney, and Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate Division, were on brief, for appellee. December 3, 2020  Judge Torruella heard oral argument in this matter and participated in the semble, but he did not participate in the issuance of the panel's opinion. The remaining two panelists therefore issued the opinion pursuant to 28 U.S.C. § 46 (d).  LIPEZ, Circuit Judge. Appellant Jose A. Tirado-Nieves was sentenced to eighty-six months' imprisonment after pleading guilty to two firearms counts. He claims the sentence was procedurally unreasonable because the district court improperly applied a four-level sentencing enhancement based on his possession of firearms "in connection with another felony," U.S.S.G. § 2K2.1(b)(6)(B), and because the court imposed an above- Guidelines sentence without proper notice. After careful review of the record, we affirm. I. A. Offense Conduct and Guilty Plea1 In August 2017, an anonymous tipster notified the Puerto Rico police that Tirado-Nieves had been carrying a weapon in plain view in the neighborhood where he lived. In a subsequent search of his home, officers found Tirado-Nieves in a bedroom near an open black bag containing two rifles. They also found there a pistol with an adapter to convert the firearm into an automatic machinegun, eight cell phones, ten pistol magazines of various capacities and calibers, approximately 370 rounds of ammunition, and a suitcase containing a plastic baggie with a small amount of 1Since Tirado-Nieves's appeal follows a guilty plea, "we draw the relevant facts from . . . the change-of-plea colloquy, the undisputed portions of the presentence investigation report ('PSR'), and the transcript of the disposition hearing." United States v. O'Brien, 870 F.3d 11 , 14 (1st Cir. 2017). - 2 - marijuana, as well as various items the government identified as drug paraphernalia.2 The drug-related items included color-coded vials, small plastic bags, sifters, baking soda, and a scale. Tirado-Nieves admitted that the firearms and other items belonged to him, and he further admitted that he previously had served a prison term for a felony. Tirado-Nieves subsequently entered a guilty plea to charges of unlawful possession of a firearm by a felon and illegal possession of a machinegun. See 18 U.S.C. §§ 922 (g)(1), 924(a)(2), 922(o). B. Probation Office Sentencing Recommendation Tirado-Nieves's Presentence Investigation Report ("PSR") determined a total offense level ("TOL") of 23 based on a calculation that reflected two enhancements: two points because the crimes involved three firearms, see U.S.S.G. § 2K2.1(b)(1)(A), and four additional points because Tirado-Nieves "possessed [a] firearm or ammunition in connection with another felony offense," U.S.S.G. § 2K2.1(b)(6)(B). The PSR also subtracted three points for acceptance of responsibility. See U.S.S.G. § 3E1.1. 2 The record in some places indicates that the drug paraphernalia and some of the firearms were found in a second bedroom, rather than in the master bedroom. Tirado-Nieves does not suggest that this discrepancy matters, and we therefore assume that the items were all found in the same room. - 3 -  After Tirado-Nieves objected to the four-point enhancement set forth in § 2K2.1(b)(6)(B), the Probation Office elaborated on its rationale for that increase in an addendum to the PSR. The addendum noted that "[t]he firearms were found in close proximity to drugs, drug manufacturing materials, and drug paraphernalia," and it concluded that, because "the presence of the firearm[s] has the potential of facilitating another felony offense, which in this case is drug trafficking[,] . . . the defendant possessed the firearms in connection with another felony offense[,] drug trafficking." Accordingly, based on a criminal history category ("CHC") of III and the TOL of 23,3 the PSR calculated a Guidelines range for Tirado-Nieves of 57 to 71 months' imprisonment. The PSR stated that no factors warranting a sentence outside the Guidelines range had been identified, although the report noted that the district court could, in its discretion, impose a variant sentence pursuant to 18 U.S.C. § 3553 (a). After the addendum was issued, Tirado-Nieves submitted a formal objection to the application of the four-point enhancement, and he requested a sentence within the 37-to-46-month range that applied without it. 3 The CHC III designation was based on the Probation Officer's assignment of six criminal history points for Tirado-Nieves's past convictions, which primarily involved weapons violations. See U.S.S.G. ch. 5, Part A. - 4 - C. Sentencing Hearing The applicability of the four-level enhancement was vigorously debated at the sentencing hearing. At the outset of the hearing, when the court sought to confirm that all objections to the PSR had been resolved, the government noted that the § 2K2.1(b)(6)(B) enhancement remained in dispute. The government then asserted that, given Tirado-Nieves's possession of an "incredible amount of paraphernalia" suggestive of drug trafficking, the court could "reasonably conclude that the evidence shows that the firearms possessed in this case were in connection to the commission of another crime" even though the government did not charge Tirado-Nieves with a drug trafficking offense. The district court was initially persuaded, stating that "it's my time to rule, and I find that those are clearly related to, and the four points do stand." At that point, defense counsel asked to present argument on the enhancement, and the court obliged. Tirado-Nieves's counsel then argued, in effect, that some items characterized by the government as "tools of the trade" -- such as the eight cellphones -- were everyday household items that should not be viewed as evidence of drug trafficking. However, the district court, plainly skeptical that the authorities had found an "innocent" cache of items, observed that, aside from a notebook the government had described as a "ledger," - 5 - "[e]verything else that is there is related to [the] drug trade." Referring to a one-edged blade found in the room, the court continued: "[U]sually you don't need to be a rocket scientist to know this is to cut cocaine, to cut powder." The court pointed to other items seized -- including a sifter, baking soda, and zip- lock bags -- and then asked, "[w]hat is it I'm missing?" After the court observed that "[e]verything by itself can be an innocent item," defense counsel clarified that he was not saying that the items were innocent. He acknowledged that the items could be used for drug trafficking, but he emphasized that they "are equally indicative of drug possession." Where, as here, there was no evidence of prior drug trafficking by Tirado-Nieves or more suggestive evidence -- such as cash -- the paraphernalia was "all indicative of personal use." In such circumstances, counsel argued, the firearms cannot be linked to drug trafficking and the enhancement should not apply. In response, the government argued that Tirado-Nieves's counsel had "minimiz[ed] the amount of paraphernalia that was found," noting that all of it was found in the bedroom where firearms were recovered and "not in the kitchen" or "all over the house." The prosecutor gave the court additional photographs of the seized paraphernalia,4 and asserted that, "for counsel to argue 4 The government had previously submitted photographs with its Sentencing Memorandum. - 6 - that that incredible amount of paraphernalia is for his personal use or could be attributed to personal use[,] is . . . absurd." Defense counsel then responded briefly, emphasizing that "the facts of this case do not look like any of the other cases . . . that I've seen where the enhancement is applied." In announcing its ruling, the court began by noting "the fact that all of these items were found together in the bedroom of this defendant." The court continued: Taking into consideration the amount of what is in there, and the color coded [vials], the ziplocs, the marijuana, the one edge blades . . . which are commonly known to cut material, either the mixers or any powdery substance, it is more indicative than anything else of the commission of a state or federal offense. And specifically a state offense. Then, after reviewing aloud the Guidelines' application note elaborating on the crimes that qualify as "another felony offense" for purposes of the four-point enhancement,5 the court observed that "certainly the illegal possession or the possession of paraphernalia is a state offense as well." The district court referenced "the quantity . . . and the type of items" found at Tirado-Nieves's home, observing that "those are indicative and 5 The court stated that "another felony offense . . . means any federal, state or local offense . . . [p]unishable by imprisonment for a term exceeding one year, regardless of whether a criminal charge was brought or a conviction was obtained." See U.S.S.G. § 2K2.1 cmt. n.14(C). - 7 - more indicative than not that those are related to the commission of another offense. So the plus four does remain." After next resolving in Tirado-Nieves's favor the government's sole objection to the PSR,6 and hearing additional arguments about the appropriate sentence, the district court adopted the Guidelines range of 57 to 71 months proposed in the PSR. The court reiterated that four points were added pursuant to § 2K2.1(b)(6)(B) "[s]ince these weapons were possessed in connection with another felony offense in which the defendant had reason to believe it would be used in connection with another felony offense." The court then reviewed Tirado-Nieves's prior convictions, educational and employment background, and his substance abuse and mental health history. After describing the murders of several of Tirado-Nieves's family members, the district court made the following statement: It seems that of course the actions that he has engaged in will keep driving him to this path of violence. Here we have that in the commission of this offense, the only way of describing this, anyone who looks at the 6 The government argued that the court should use a base offense level ("BOL") of 22 -- rather than a BOL of 20, as calculated in the PSR -- based on its view that a prior conviction for robbery should be treated as a crime of violence. After extended discussion, the court stated that it would "not be disposing in a conclusive way of the issue," but would "just give the benefit of the doubt and go along with the recommendation of the probation officer of not allocating those points." The court then indicated that the two points would not matter because it had already concluded that "a sentence outside of the applicable guideline range is necessary." - 8 - pictures brought by the government in the sentencing memo and the ones we have here is that he had an arsenal. We are talking about rifles. We are talking about modified pistols to shoot in an automatic fashion. Ammunition. He possessed a large quantity of magazines and ammunition. Some of these magazines are large capacity. Five for the rifle. Five for the weapons. A total of 370 rounds. And we have confidential tips from a neighborhood in which the neighbors are describing seeing this defendant walking around, plain view, carrying weapons. This is blatant disregard for the law, for the safety of the community that he places in danger. I am aware and I read carefully that he said that he got a weapon after his brother's killing for his own safety. But this is not a weapon for [his] own safety. This is kind of being prepared for a war. In addition to that, the seizure lead to the eight cell phones, one black bag, one black suitcase with paraphernalia that included one green box with paraphernalia, one ziploc baggie with marijuana, a clear baggie with tobacco leaves, the scale, the drug manufacturing materials, and the drug paraphernalia to which mention was made. The ziplocs with some items that were color coded like the ones that are used to package and set for distribution, narcotics. I'm not making any sort of determination that this defendant was involved in drug trafficking, but everything points out to the commission of related offenses and the weapons were possessed in relation to . . . . . . . - 9 -  In this particular case, I think that the facts clearly depict the need for protection of the public. The court went on to express its view that Tirado- Nieves's circumstances warranted a "departure" from the Guidelines range. The court stated that, "considering all the factors, considering that a sentence not harsher than necessary is to be imposed," it was imposing a term of 86 months' imprisonment and three years of supervised release for each count, to be served concurrently. Defense counsel renewed his objection to the above- Guidelines sentence and asked for reconsideration, which the court denied. This timely appeal followed. II. Tirado-Nieves contends that his sentence is procedurally unreasonable for two reasons. First, he argues that the district court committed clear error by applying the four-point enhancement under Guidelines § 2K2.1(b)(6)(B). Second, he asserts that the district court failed to provide the notice required by Rule 32(h) of the Federal Rules of Criminal Procedure before imposing a sentence that departs from the Guidelines. A. Standard of Review While our "review [of] the district court's interpretation of the Sentencing Guidelines [is] de novo," we review "factual findings for clear error[] and [the] application of the Guidelines to a particular set of facts on a 'sliding - 10 - scale'" -- i.e., giving closer scrutiny to law-dominated judgments. United States v. Cannon, 589 F.3d 514 , 516-17 (1st Cir. 2009) (quoting United States v. Sicher, 576 F.3d 64 , 71 & n.6 (1st Cir. 2009)); see also United States v. Zehrung, 714 F.3d 628 , 631 (1st Cir. 2013). When a defendant challenges the factual basis for the district court's application of a sentencing enhancement, "we ask only whether the court clearly erred in finding that the government proved the disputed fact by a preponderance of the evidence." United States v. Luciano, 414 F.3d 174 , 180 (1st Cir. 2005) (quoting United States v. Powell, 50 F.3d 94 , 103 (1st Cir. 1993)). B. The Applicability of U.S.S.G. § 2K2.1(b)(6)(B) 1. Legal Background The Sentencing Guidelines provide for a four-level increase in the offense level when the defendant "possessed any firearm or ammunition in connection with another felony offense." U.S.S.G. § 2K2.1(b)(6)(B). In 2006, responding to a circuit conflict on the meaning of "in connection with," see U.S.S.G. app. C supp., amd. 691, at 177 (Nov. 2011); United States v. Paneto, 661 F.3d 709 , 717 (1st Cir. 2011), the Sentencing Commission added an application note explaining that the requirement is met "if the firearm . . . facilitated, or had the potential of facilitating, another felony offense." U.S.S.G. § 2K2.1(b)(6) cmt. n.14(A). - 11 -  A second clarification provided by the new note is particularly pertinent here. Note 14(B)(ii) states that, "in the case of a drug-trafficking offense in which a firearm is found in close proximity to drugs, drug-manufacturing materials, or drug paraphernalia," the enhancement applies without the need for a specific finding by the sentencing court that the firearms were possessed "in connection with" the drug offense. U.S.S.G. § 2K2.1 cmt. n.14(B)(ii).7 In other words, when the defendant's other felony for purposes of § 2K2.1(b)(6)(B) "is drug trafficking, the guideline means that the enhancement is appropriate whenever the firearm is in close proximity to the drugs." Paneto, 661 F.3d at 717 . The application note states that the enhancement is warranted in such instances because "the presence of the firearm has the potential of facilitating another felony offense." U.S.S.G. § 2K2.1 cmt. n.14(B). Reflecting that view, we have recognized that a gun can facilitate drug distribution "by emboldening the enterprise, aiding the collection of a drug debt, or in any number of foreseeable ways." Cannon, 589 F.3d at 519; see also United States v. Rivera Calderón, 578 F.3d 78 , 94 (1st Cir. 2009) (observing that, "[i]n drug trafficking[,] firearms have become 7 Note 14(B)(i) similarly provides for the automatic application of the four-level enhancement in the case of a burglary in which the defendant found and took a firearm, "even if the defendant did not engage in any other conduct with that firearm during the course of the burglary." - 12 - 'tools of the trade'" (quoting United States v. McGuire, 389 F.3d 225 , 230 (1st Cir. 2004))). As we previously have noted, however, the express reference to drug trafficking crimes in Note 14(B)(ii) leaves "open the question of whether having a firearm in connection with a simple drug possession offense is sufficient," on its own, to trigger the four-level enhancement. Paneto, 661 F.3d at 716 n.5 (emphasis added); see also United States v. Matthews, 749 F.3d 99 , 106 n.8 (1st Cir. 2014). Although we have not yet answered that question as a general matter,8 multiple circuits have held that the mere proximity of a firearm is not enough to justify the four- 8 In United States v. Reyes-Torres, 979 F.3d 1 , 7-8 (1st Cir. 2020), we indicated that the simultaneous possession of drugs and a firearm outside the home can suffice to trigger the enhancement, citing cases finding the requisite connection because a firearm carried in public may embolden the defendant to possess the drugs or serve as protection. See, e.g., United States v. Justice, 679 F.3d 1251 , 1255 (10th Cir. 2012) ("A reasonable person could find that the firearms gave [the defendant] a sense of security emboldening him to venture from his home with drugs that someone might wish to take from him by force."); cf. United States v. Smith, 535 F.3d 883 , 886 (8th Cir. 2008) (rejecting emboldenment theory where defendant possessed drugs and firearms at home); see also United States v. West, 643 F.3d 102 , 116 (3d Cir. 2011) (stating that the evidence permitting a finding that defendant's possession of a firearm emboldened him or served as protection "must be something more than simultaneous possession of a small quantity of drugs and a firearm in the same vehicle"). However, in Reyes-Torres, we also explicitly held that the enhancement was justified because the undisputed facts showed that the defendant was "clearly in possession of [a] machine gun in furtherance of drug trafficking." 979 F.3d at 8 (emphasis added). Accordingly, Reyes-Torres provides, at most, a partial answer to the possession- only question -- i.e., when the possession is outside the home in circumstances supporting the emboldenment rationale. - 13 - level increase when the other felony is drug possession. See United States v. Briggs, 919 F.3d 1030 , 1032 (7th Cir. 2019); United States v. West, 643 F.3d 102 , 114 (3d Cir. 2011); United States v. Jeffries, 587 F.3d 690 , 693 (5th Cir. 2009); United States v. Jenkins, 566 F.3d 160 , 163-64 (4th Cir. 2009); United States v. Fuentes Torres, 529 F.3d 825 , 827 (8th Cir. 2008). The rationale for caution in such instances is that the simultaneous presence of guns and a small amount of drugs is more likely to be an "accident or coincidence." Jenkins, 566 F.3d at 163 (quoting United States v. Blount, 337 F.3d 404 , 411 (4th Cir. 2003)); see also, e.g., West, 643 F.3d at 116 ; United States v. Blankenship, 552 F.3d 703 , 705 (8th Cir. 2009).9 Hence, in such cases, the courts hold that Application Note 14(A), rather than Note 14(B)(ii) applies, and "the district court must affirmatively make a finding that the weapon or weapons facilitated the drug offense before 9 The possibility that both firearms and drugs would be at a crime scene only fortuitously was noted in Smith v. United States, 508 U.S. 223 (1993). There, the Supreme Court addressed a sentencing penalty, under 18 U.S.C. § 924 (c)(1), for defendants who use or carry a firearm "in relation to" a drug trafficking offense. Id. at 227 . The Court stated that "in relation to" "clarifies that the firearm must have some purpose or effect with respect to the drug trafficking crime; its presence or involvement cannot be the result of accident or coincidence." Id. at 238 . In describing the requisite relationship, the Court explained that "the gun at least must 'facilitat[e], or ha[ve] the potential of facilitating,' the drug trafficking offense." Id. (quoting United States v. Stewart, 779 F.2d 538 , 540 (9th Cir. 1985) (Kennedy, J.)). The Sentencing Commission expressly adopted the language from Smith to elaborate on "in connection with" in Application Note 14. See U.S.S.G. app. C supp. amd. 691, at 177 (Nov. 2011). - 14 - applying the adjustment." Blankenship, 552 F.3d at 705 ; see also West, 643 F.3d at 114 (collecting cases). 2. Tirado-Nieves's § 2K2.1(b)(6)(B) Enhancement Tirado-Nieves asserts that the district court erred by adding the four levels to his sentence because the court expressly stated that it was "not making any sort of determination that [he] was involved in drug trafficking," but it then failed to make a specific finding on how the firearms facilitated the state offense -- "the illegal possession or the possession of paraphernalia" -- that the court identified as the triggering "other felony." Put differently, Tirado-Nieves argues that the district court found that his "other felony" was merely a possession offense, and the court therefore needed to -- but did not -- make a specific finding on how the firearms facilitated that offense. In our view, this argument misapprehends the application of § 2K2.1(b)(6)(B) in the circumstances of this case. In the "possession" cases on which Tirado-Nieves relies, courts typically found the enhancement improperly applied where the defendant possessed a small quantity of drugs and there was no evidence of involvement in drug trafficking. See, e.g., United States v. Walker, 900 F.3d 995 , 997 (8th Cir. 2018) (per curiam) (reversing application of the enhancement where the government failed to link "[t]he user quantity of cocaine" inside a car to a shotgun locked in the trunk); West, 643 F.3d at 116 (reversing application of - 15 - § 2K2.1(b)(6)(B) where district court made no finding of drug trafficking or facilitation, and observing that the enhancement requires "something more than simultaneous possession of a small quantity of drugs and a firearm in the same vehicle"); Jeffries, 587 F.3d at 694 (finding the § 2K2.1(b)(6)(B) enhancement unsupported where defendant possessed a small amount of cocaine and "no evidence [was] presented that the defendant [was] a trafficker"); Blankenship, 552 F.3d at 706 (reversing application of the four-level enhancement where the defendant "possessed a 'user' amount of methamphetamine in his automobile, and there [was] no evidence or allegation that he is a drug trafficker"); United States v. Smith, 535 F.3d 883 , 885 (8th Cir. 2008) (reversing application of the enhancement where the defendant "possessed only an unmeasured quantity of methamphetamine residue"); cf., e.g., Jenkins, 566 F.3d at 164 (upholding application of the enhancement where defendant "simultaneous[ly] possess[ed]" a loaded revolver and .29 grams of cocaine base on a public street, close to midnight, and near where a gun had been fired because the environment suggested the gun "'was present for protection or to embolden'" defendant (quoting United States v. Lipford, 203 F.3d 259 , 266 (4th Cir. 2000))). - 16 -  This is not a drug possession case.10 Although authorities did find a small amount of marijuana in Tirado-Nieves's home, it was the drug paraphernalia, not the drugs, on which the district court focused in its discussion of § 2K2.1(b)(6)(B). The propriety of the enhancement thus depends on the court's handling of Tirado-Nieves's unlawful possession of paraphernalia. We agree with Tirado-Nieves that, in announcing that the enhancement applied, the district court did not expressly articulate how the firearms in Tirado-Nieves's bedroom facilitated, or had the potential to facilitate, the possession of the drug paraphernalia also found there.11 Absent such an express finding, the question 10 At one point in his brief, Tirado-Nieves refers to the second felony in this case as "drug possession alone," see Appellant's Br. at 21, but he notes elsewhere that the other felony on which the court relied was "seemingly [possession of] paraphernalia." Id. at 26. The record here cannot reasonably be viewed to involve "drug possession alone." 11 The court twice summed up its view that the enhancement applied. First, after the colloquy with the parties about the applicability of § 2K2.1(b)(6)(B), the court stated: "[G]iven the quantity and the type, and the type of items, those are indicative and more indicative than not that those are related to the commission of another offense. So the plus four does remain." The reference to "the quantity and the type" appears to describe the firearms. Second, in reviewing its Guidelines calculation and explaining its chosen sentence, the court stated: "Since these weapons were possessed in connection with another felony offense in which the defendant had reason to believe it would be used in connection with another felony offense, four . . . points are added as specified within the guideline calculations at the Presentence Report." The court, however, did not elaborate on why or how the firearms would facilitate the possession crime it had identified as the other felony. See, e.g., Briggs, 919 F.3d at - 17 - becomes whether the district court permissibly treated Tirado- Nieves's possession of paraphernalia as an automatic trigger for the four-level increase in offense level. Put simply, we must determine whether the district court properly treated the "possession" felony in these circumstances as akin to the "drug trafficking offense[s]" covered by Note 14(B)(ii). Based on the record before us, and the district court's own assessment of the evidence, we readily conclude that the court did not err. The court plainly rejected defense counsel's assertion that the paraphernalia discovered in Tirado-Nieves's bedroom evidenced only personal drug use. The court made repeated reference to "the quantity and type of items" seized and their location in a bedroom cache. In addition, in explaining why it found the § 2K2.1(b)(6)(B) adjustment applicable, the court expressly referred to the photographs of the paraphernalia that the prosecutor had highlighted to rebut, in the prosecutor's words, defense counsel's "minimizing [of] the amount of paraphernalia that was found." At one point, the court characterized the items in the bedroom as "related to [the] drug trade." Later, in reviewing the factors leading to its decision to impose an above- Guidelines sentence, the court catalogued the paraphernalia found 1033 ("[T]he mere fact that guns and drugs are found near each other doesn't establish a nexus between them. A court must say more to connect the two." (citation omitted)). - 18 - in the room, including "drug manufacturing materials" and "[t]he ziplocs with some items that were color coded like the ones that are used to package and set for distribution, narcotics." (Emphasis added.) To be sure, immediately following that listing of items, the court went on to say it was "not making any sort of determination that this defendant was involved in drug trafficking." Nonetheless, viewing all of its comments in the context of the proceeding as a whole, we discern a clear determination by the court that Tirado-Nieves unlawfully possessed drug paraphernalia in a quantity that was indicative of drug trafficking. The court chose not to characterize that crime as "involve[ment] in drug trafficking" per se,12 but it inescapably had in mind Commonwealth law on the illegal possession of drug paraphernalia for use in drug dealing. As described above, in identifying Tirado-Nieves's "other felony," the court noted that "the amount of what is in there, and the color coded, the ziplocs, 12The court may have declined to find that Tirado-Nieves was a drug trafficker because the government pointed out during the sentencing hearing that he had not been charged with a drug trafficking offense in this case. In addition, the government noted that at least some of the items seized were "brand new, ready to be used" -- possibly suggesting to the court that Tirado-Nieves had not yet been "involved" in drug trafficking. Alternatively, the district court could have been observing (albeit imprecisely) that the evidence was sufficient for a sentence enhancement based on drug trafficking, but not necessarily sufficient for a conviction for drug trafficking. - 19 - the marijuana, the one edge blades . . . , which are commonly known to cut material, . . . is more indicative than anything else of the commission of a state or federal offense. And specifically a state offense." (Emphasis added.) It is a felony in Puerto Rico "to knowingly and with criminal intent[] use[,] or possess with the intention of using[,] [certain] drug paraphernalia to . . . pack, repack, refill, store, keep, contain, conceal, . . . or otherwise introduce into the human body a controlled substance." P.R. Laws Ann. tit. 24, § 2411b(c)(2). Puerto Rico also criminalizes the possession of such paraphernalia with the intent -- among other purposes -- to distribute the items for use in "stor[ing], keep[ing], [or] contain[ing]" a controlled substance for unlawful drug use. Id. § 2411b(c)(1).13 Among the drug-related materials cited in the statute are scales, baking soda, sieves, plastic bags, and "other containers" that could be used to "pack[] small amounts of 13 This latter provision appears aimed at conduct (such as distribution) that enables others to use the paraphernalia, while the prior provision appears to primarily target the defendant's own use of (or intention to use) the paraphernalia. Section (c)(1) contains language equivalent to the language from section (c)(2) quoted above, but with a primary focus on the dissemination of the paraphernalia. It states, in relevant part, that it is unlawful "to knowingly, and with criminal intent . . . possess with the intent of distributing, selling, disposing, delivering, transporting or concealing" specified drug paraphernalia "in order to . . . pack, repack, refill, store, keep, contain, conceal . . . or otherwise introduce a controlled substance into the human body." P.R. Laws Ann. tit. 24, § 2411b(c)(1). - 20 - controlled substances" -- all items found in Tirado-Nieves's possession, some in large quantity. P.R. Laws Ann. tit. 24, § 2411b(a). The district court also highlighted the nature of the firearms found in the bedroom. Tirado-Nieves possessed not merely a single gun, but a collection of guns and ammunition -- including an automatic weapon -- that the district court described as "an arsenal." Those firearms, found in proximity to a large amount of paraphernalia commonly associated with drug-trafficking, further distanced the facts here from a "possession" offense in which drugs and firearms are more likely to be in proximity only coincidentally. See United States v. Reyes-Torres, 979 F.3d 1 , 9 (1st Cir. 2020) (citing "[t]he nature of the firearm found -- a pistol modified to act as a machinegun" -- among the factors "demonstrat[ing] that this gun was not meant merely for personal protection"). In sum, the undisputed facts in this record present a scenario that is nothing like the "simple drug possession offense" for which courts have required an explicit facilitation finding to ensure that an enhancement under § 2K2.1(b)(6)(B) is warranted. Paneto, 661 F.3d at 716 n.5. Although the bare fact that Tirado- Nieves possessed the firearms and drug items in his home might in some circumstances suggest happenstance, see, e.g., Blankenship, 552 F.3d at 705 , the evidence here powerfully indicated otherwise. - 21 - Given the quantity and type of firearms and drug-related items, the facts closely resemble those for which Application Note 14(B) assumes that "the presence of the firearm[s] has the potential of facilitating another felony offense." U.S.S.G. § 2K2.1 cmt. n.14(B). Unquestionably, our review would have been aided by an explicit statement on whether the district court was applying Application Note 14(A) or 14(B), and the basis for its conclusion that Tirado-Nieves's possession of firearms facilitated his other felony offense. However, this is not a case where the ambiguities require us to remand for clarification. Cf. Briggs, 919 F.3d at 1033 (remanding for further findings on the § 2K2.1(b)(6)(B) enhancement because "we don't know what the district court thought"). The court clearly found that the possession offense at issue here was linked to drug trafficking, and its disinclination to label Tirado-Nieves a drug trafficker does not negate the force of the evidence supporting that finding. Hence, put simply, the evidence was "plainly sufficient," Reyes-Torres, 979 F.3d at 8, to support the court's conclusion that the firearms were possessed "in connection with" Tirado-Nieves's unlawful possession of the drug-related items -- an offense that, under Puerto Rico law and on this record, is at least akin to a drug trafficking crime. Accordingly, we conclude - 22 - that the district court did not err by imposing the four-level enhancement pursuant to § 2K2.1(b)(6)(B). C. Notice of "Departure" The parties dispute whether Tirado-Nieves sufficiently preserved his second claim of error and thus disagree about the applicable standard of review. Because the claim fails regardless of the standard applied, we assume, favorably to Tirado-Nieves, that the claim was preserved. Citing Rule 32(h) of the Federal Rules of Criminal Procedure, Tirado-Nieves contends that his sentence was procedurally unreasonable because the district court "departed" sua sponte from the Guidelines range of 57 to 71 months without providing the necessary notice of that possibility. Tirado-Nieves is correct that Rule 32(h) requires a sentencing court to provide "reasonable notice" of its intent to "depart from the applicable sentencing range on a ground not identified for departure either in the presentence report or in a party's prehearing submission." Fed. R. Crim. P. 32(h). However, not all sentences outside the advisory Guidelines range are subject to the Rule 32(h) requirement. When a court imposes a "variance," rather than a "departure," Rule 32(h) does not apply. Irizarry v. United States, 553 U.S. 708 , 714 (2008). As we have previously explained, variances are "non- Guidelines sentences that result from the sentencing judge's - 23 - consideration of factors under 18 U.S.C. § 3553 [(a)]," while departures are non-Guidelines sentences authorized and "'imposed under the framework set out in the Guidelines.'" United States v. Adorno-Molina, 774 F.3d 116 , 126 (1st Cir. 2014) (quoting Irizarry, 553 U.S. at 714 ). For variances, notice is required only when the district court plans to premise a non-Guidelines sentence "on some ground or fact that would unfairly surprise competent and reasonably prepared counsel." United States v. Politano, 522 F.3d 69 , 75 (1st Cir. 2008) (quoting United States v. Vega-Santiago, 519 F.3d 1 , 5 (1st Cir. 2008) (en banc)). Here, the district court rested its above-Guidelines sentence on the factors described in 18 U.S.C. § 3553 (a) and, thus, imposed a "variance" rather than a "departure." Before announcing the sentence, the court specifically stated that it was "considering the 3553 factors" and then outlined Tirado-Nieves's age, dependents, education, and employment history. The court went on to describe his substance abuse, mental health treatment, and the details of the instant offense. The court also noted Tirado-Nieves's "disregard for the law" and the importance of promoting "the safety of the community," phrases that track the text of the statutory factors. See 18 U.S.C. § 3553 (a)(2)(A)-(C). Although the court did, at one point, describe its sentence as "a departure," the court's terminology does not necessarily determine the nature of the deviation from the Guidelines. See United States - 24 - v. Nelson, 793 F.3d 202 , 206-07 (1st Cir. 2015) (concluding that the district court imposed a "variance" when it justified its above-Guidelines sentence based on the § 3553(a) factors, even though the court used the word "depart" in the sentencing hearing). Because the district court imposed a "variance," not a departure, it did not violate Rule 32(h).14 Tirado-Nieves does not argue that he was entitled to notice of the court's intent to impose a variant sentence on some other basis. Accordingly, we reject his claim of procedural error. Having found no basis to disturb the sentencing judgment of the district court, we affirm the sentence it imposed. So ordered. 14 Of course, as we have observed, the distinction between departures and variances in post-Booker sentencing may be, "[f]or practical purposes," simply a matter of nomenclature. See United States v. Santini-Santiago, 846 F.3d 487 , 490 (1st Cir. 2017) (noting the difficulty of "identify[ing] any movement away from the applicable guidelines sentencing range that can be justified as a departure but not as a variance"). Nonetheless, here, as we have explained, the court clearly imposed a variance because it did not invoke any Guidelines provision as the basis for its "movement away from the applicable" range. Id. - 25 -

2020-12-03 23:00:28.689105+00

http://media.ca1.uscourts.gov/pdf.opinions/17-2213P-01A.pdf

United States Court of Appeals For the First Circuit No. 17-2213 SANDRI RIJO, Petitioner, Appellant, v. UNITED STATES OF AMERICA, Respondent, Appellee. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO [Hon. Aida M. Delgado-Colón, U.S. District Judge] Before Howard, Chief Judge, Thompson and Kayatta, Circuit Judges. David Ramos-Pagán for appellant. David Christian Bornstein, Assistant United States Attorney, with whom W. Stephen Muldrow, United States Attorney, Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate Division, and Francisco A. Besosa-Martínez, Assistant United States Attorney, were on brief, for appellee. December 3, 2020  KAYATTA, Circuit Judge. Sandri Rijo was found guilty after trial of conspiring to possess with intent to distribute five kilograms of cocaine and of aiding and abetting others to do so as well. On direct appeal, we affirmed his conviction and sentence. See United States v. Cruz-Feliciano, 786 F.3d 78 , 92 (1st Cir. 2015). Rijo thereafter timely filed a habeas petition under 28 U.S.C. § 2255 . On the papers, the district court dismissed Rijo's section 2255 petition. We then granted a certificate of appealability under 28 U.S.C. § 2253 (c)(2), allowing this appeal on a single issue: whether defense counsel rendered ineffective assistance in deciding not to call two witnesses and introduce certain documents. For the following reasons, we now affirm the dismissal of Rijo's petition. I. In January 2012, law enforcement apprehended a group of men, including Rijo, after observing them in the process of smuggling a substantial amount of cocaine by motorboat. See Cruz- Feliciano, 786 F.3d at 82–83. A later prepared DEA Report of Investigation stated that, according to cooperating witness Freddy Altagracia-Medina, Rijo was on board the motorboat that brought the drugs to shore. See id. at 85. This statement conflicted with Altagracia's testimony at trial that Rijo was on the shore to receive the drugs while his co-defendants Gary Brito-González and - 2 - Sandy Navarro were on the boat. See id. at 86. The rough notes of the DEA agent who prepared the report revealed that the agent had apparently confused "Sandy (Navarro)" with "Sandri (Rijo)" in reducing Altagracia's oral statement to rough notes and then to a report. See id. at 85-86. Rijo's defense counsel at trial opted not to try to exploit this error. In a nutshell, he regarded the inconsistency as a dead end, given that it was so easily explained as the agent's mistake, and he feared that the foray would simply re-run the prosecution's narrative. Rijo now argues that the decision not to introduce the DEA report and the agent's notes and not to cross- examine Altagracia on the inconsistency between the report and his testimony violated Rijo's right to effective assistance of counsel under the Sixth Amendment. See, e.g., Strickland v. Washington, 466 U.S. 668 , 686 (1984). Success in making such an argument requires a showing that counsel's performance was "outside the wide range of professionally competent assistance," id. at 690 , and that there is a "reasonable probability" that the trial would have ended more favorably to the defendant but for counsel's errors, id. at 694 . For the reasons well stated by the district court, we find it unlikely that counsel's trial strategy decision was so unreasonable as to constitute deficient performance under Strickland. But even if counsel's performance was deficient, - 3 - Rijo's ineffective assistance claim still fails because there is no reasonable probability that the results of the trial would have differed had counsel done what Rijo now argues he should have done. Law enforcement surveilled the unloading as it occurred and then stopped the smuggler's vehicles as they left the scene, finding Rijo in one of them. See Cruz-Feliciano, 786 F.3d at 82–83. Moreover, government witnesses other than Altagracia also testified that Rijo was involved in the smuggling. See id. Given Rijo's immediate apprehension at the scene and the government witnesses' testimony, we find it highly unlikely that any jurors would have been persuaded by an effort to exploit the easily explained error in the DEA reports about whether Rijo was on the boat or on the shore unloading drugs from the boat. II. For the foregoing reasons, we affirm. - 4 -

2020-12-03 23:03:23.596888+00

http://www.illinoiscourts.gov/Opinions/AppellateCourt/2020/5thDistrict/5170345.pdf

Digitally signed by Reporter of Decisions Reason: I attest to Illinois Official Reports the accuracy and integrity of this document Appellate Court Date: 2020.12.03 11:07:55 -06'00' People v. White, 2020 IL App (5th) 170345 Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. Caption DOUGLAS WHITE, Defendant-Appellant. District & No. Fifth District No. 5-17-0345 Rule 23 order filed April 15, 2020 Motion to publish allowed April 30, 2020 Opinion filed April 30, 2020 Decision Under Appeal from the Circuit Court of Madison County, No. 88-CF-776; Review the Hon. Neil T. Schroeder, Judge, presiding. Judgment Affirmed. Counsel on James E. Chadd, John M. McCarthy, and Susan M. Wilham, of State Appeal Appellate Defender’s Office, of Springfield, for appellant. Thomas D. Gibbons, State’s Attorney, of Edwardsville (Patrick Delfino, Patrick D. Daly, and Sharon Shanahan, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.  Panel PRESIDING JUSTICE WELCH delivered the judgment of the court, with opinion. Justices Cates and Wharton concurred in the judgment and opinion. OPINION ¶1 This case is before this court for the fifth time. The defendant, Douglas White, appeals from the Madison County circuit court’s denial of his motion for leave to file a successive postconviction petition. For the following reasons, we affirm. ¶2 I. BACKGROUND ¶3 A. Conviction and Direct Appeal ¶4 In 1988, the defendant was charged with two counts of first degree murder (Ill. Rev. Stat. 1987, ch. 38, ¶ 9-1(a)(1)) and one count of concealment of a homicidal death (id. ¶ 9-3.1(a)). He was accused of killing his grandmother, Adella Vallerius, and her friend, Carroll Pieper, and of concealing Pieper’s death. In March 1989, the cause proceeded to trial by jury. ¶5 In this appeal, little needs to be said about the evidence adduced at trial. The jury found the defendant guilty on all three counts. The trial court later sentenced the defendant to natural life imprisonment for each of the two first degree murder 1 convictions and five years of imprisonment for the concealment of a homicidal death. This court affirmed the judgment of conviction in People v. White, 209 Ill. App. 3d 844 (1991) (White I). The opinion in that appeal includes a detailed summary of the evidence presented during the defendant’s trial. ¶6 B. The Defendant’s First Collateral Attack on the Judgment of Conviction ¶7 In July 2001, the defendant filed with the circuit clerk a pro se petition for relief under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2000)). It was the defendant’s first postconviction petition. In September 2001, the circuit court summarily dismissed the petition as frivolous and patently without merit. This court affirmed the judgment in People v. White, No. 5-01-0804 (2002) (unpublished order under Illinois Supreme Court Rule 23). ¶8 C. The Defendant’s Second Collateral Attack on the Judgment of Conviction ¶9 In March 2002, nine months before this court affirmed the dismissal of the defendant’s first postconviction petition, the defendant initiated a second collateral attack on the judgment of conviction. He filed a pro se pleading that combined a successive petition for postconviction relief with a petition for relief from judgment under section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West 2002)). The defendant filed several subsequent amended combined petitions for postconviction relief and for relief from judgment, both pro se and The defendant was sentenced to two mandatory natural life terms of imprisonment under section 1 5-8-1(a)(1)(c) of the Criminal Code of 1961 (Ill. Rev. Stat. 1989, ch. 38, ¶ 1005-8-1(a)(1)(c) (now codified, as amended, as section 5-8-1(a)(1)(c)(ii) of the Unified Code of Corrections (730 ILCS 5/5-8-1(a)(1)(c)(ii) (West 2016) (hereinafter the multiple-victims murder statute))). -2-  through counsel. In April 2002, the circuit court entered a written order continuing the case, pending resolution of the appeal in No. 5-01-0804 (i.e., the appeal from the summary dismissal of the defendant’s first postconviction petition). Despite the order continuing the case, the State in May 2002 filed a motion to dismiss the postconviction aspect of the defendant’s combined petition. ¶ 10 In December 2005, the defendant filed a pro se motion for leave to file a pro se supplemental combined petition for postconviction relief and for relief from judgment, which the circuit court granted even though the defendant was represented by a special public defender at that time. The defendant’s supplemental combined petition presented eight claims. The specific allegations contained therein are not relevant for purposes of this appeal, and thus, we need not recite them here. In March 2007, the State filed an amended motion to dismiss the defendant’s combined petition for postconviction relief and for relief from judgment, which the circuit court granted. The defendant appealed to this court, and the judgment was reversed and remanded. People v. White, No. 5-07-0359 (2010) (unpublished order under Illinois Supreme Court Rule 23). ¶ 11 Upon remand to the circuit court, the defendant filed a pro se motion for leave to file a sixth pro se amended combined petition for postconviction relief and for relief from judgment under section 2-1401 (735 ILCS 5/2-1401 (West 2016)). The sixth amended combined petition raised 13 claims. The specific allegations presented in that petition were detailed by this court in People v. White, 2016 IL App (5th) 140002-U , ¶¶ 21-25 (White IV), and thus, we need not repeat them here. The State subsequently filed a motion to dismiss the defendant’s sixth amended combined petition, asserting that leave to file a successive postconviction petition had not been granted, that the petition did not demonstrate that the judgment of conviction was void, and that the petition was untimely under section 2-1401 (735 ILCS 5/2-1401 (West 2016)). The court granted the motion to dismiss, finding that the defendant’s sixth amended combined petition was untimely filed. This court affirmed the dismissal in White IV, 2016 IL App (5th) 140002-U . ¶ 12 D. The Defendant’s Third Collateral Attack on the Judgment of Conviction ¶ 13 In August 2017, the defendant filed a pro se motion for leave to file a successive postconviction petition. He asserted that his mandatory natural life sentences violated the eighth amendment of the United States Constitution (U.S. Const., amend. VIII) and the proportionate penalties clause of the Illinois Constitution (Ill. Const. 1970, art. I, § 11) as applied to him because he was “a 20 year old minor” when the murders occurred and the trial court was not allowed to consider his youth and rehabilitative potential. In alleging that he had cause for failing to bring the successive petition’s claims in the previous petition, the defendant relied on two cases, People v. Harris, 2016 IL App (1st) 141744 (Harris I), and People v. House, 2015 IL App (1st) 110580 , which he asserted had only recently extended scientific evidence on the adolescent brain development to 18- to 21-year-olds. He also alleged that prejudice resulted from failing to bring these claims earlier in that he had significant rehabilitative potential and had taken college courses in prison, worked full time, and donated his time to a prison mural project. ¶ 14 The defendant noted that his earlier petition showed nine “nonapplications” of mandatory natural life imprisonment for multiple murders, and he asserted that he had recently learned of -3-  an additional “nonapplication.” He also attached affidavits from individuals who had allegedly heard his brother brag about receiving a sentence reduction as part of his plea agreement. ¶ 15 On August 27, 2017, the circuit court denied the motion for leave, finding that the defendant “has failed to make a sufficient showing of either cause or prejudice.” The defendant appeals. ¶ 16 II. ANALYSIS ¶ 17 The Act provides a method for criminal defendants to assert that “in the proceedings which resulted in his or her conviction there was a substantial denial of his or her rights under the Constitution of the United States or of the State of Illinois or both.” 725 ILCS 5/122-1(a)(1) (West 2016). “A proceeding under the Act is a collateral attack on the judgment of conviction.” People v. Wrice, 2012 IL 111860 , ¶ 47. Although our supreme court has made clear that the Act contemplates only one postconviction proceeding, the court has provided in its case law two bases upon which the bar against successive proceedings will be relaxed: (1) a showing of cause and prejudice or (2) a claim of actual innocence. People v. Edwards, 2012 IL 111711 , ¶¶ 22-23. Here, the defendant alleges only cause and prejudice, which we discuss below. ¶ 18 When a defendant seeks to file a successive postconviction petition, he must first obtain leave of court. 725 ILCS 5/122-1(f) (West 2016). Leave of court may be granted only if defendant demonstrates “cause” for his failure to bring the claim in his initial postconviction proceeding and “prejudice” resulting therefrom. See id. (codifying the cause-and-prejudice test articulated in People v. Pitsonbarger, 205 Ill. 2d 444 , 458-60 (2002)); Wrice, 2012 IL 111860 , ¶ 48. A defendant shows cause by identifying an objective factor that impeded his ability to raise a specific claim in his initial postconviction petition. 725 ILCS 5/122-1(f) (West 2016); Wrice, 2012 IL 111860 , ¶ 48. A defendant shows prejudice by demonstrating that the claim not raised in his initial postconviction petition so infected his trial that the resulting conviction or sentence violated due process. Wrice, 2012 IL 111860 , ¶ 48. It is defendant’s burden to establish a prima facie showing of cause and prejudice in order to be granted leave before further proceedings on his claims can follow (People v. Bailey, 2017 IL 121450 , ¶ 24; People v. Smith, 2014 IL 115946 , ¶ 30), and both elements must be satisfied for defendant to prevail (People v. Guerrero, 2012 IL 112020 , ¶ 15). For the reasons that follow, the defendant cannot establish prejudice, since his claims are not legally cognizable. ¶ 19 We reject the defendant’s contention for several reasons. First, the mere fact that the defendant was age 20 when he brutally murdered his grandmother and her friend and attempted to conceal his involvement in the crimes is not reason enough to consider him “youthful” such that a mandatory life sentence would be so disproportionate as to be cruel and unusual under the eighth amendment. To determine the demarcation between an adult and juvenile following Miller v. Alabama, 567 U.S. 460 (2012), and its progeny, we turn to our legislature. See People v. Buffer, 2019 IL 122327 , ¶ 34 (the clearest and most reliable objective evidence of a jurisdiction’s contemporary values is legislation enacted by its legislature). As our supreme court noted in Buffer, since the Miller line of cases was issued, our legislature passed a new sentencing statute in 2016 for defendants under age 18 when they committed their offenses. See Buffer, 2019 IL 122327 , ¶ 36; 730 ILCS 5/5-4.5-105 (West 2018). The statute requires the sentencing court to consider, in mitigation, factors relating to a defendant’s youth to determine the appropriate sentence and enfolds the Miller factors on youth. Buffer, 2019 IL 122327 , ¶ 36; 730 ILCS 5/5-4.5-105 (West 2018). Notably, the statute does not apply -4-  to individuals age 18 and older; rather, those individuals are considered adults under the statute. See 730 ILCS 5/5-4.5-105 (West 2018). Thus, according to current sentencing laws, the defendant at age 20 was an adult when he committed his crimes. ¶ 20 Second, it follows that the Miller protections under the eighth amendment are simply not implicated in cases of adult offenders. People v. Harris, 2018 IL 121932 , ¶ 61 (Harris II) (rejecting defendant’s facial challenge under the eighth amendment); People v. Herring, 2018 IL App (1st) 152067 , ¶ 103 (noting that defendant was an adult for sentencing purposes and rejecting “any challenge” on eighth amendment grounds); People v. Pittman, 2018 IL App (1st) 152030 , ¶ 31 (rejecting defendant’s as-applied challenge under the eighth amendment); see also People v. LaPointe, 2018 IL App (2d) 160903 , ¶ 44 (finding Miller unmistakably drew a bright line at age 18). Therefore, the defendant cannot benefit from the specific considerations that attend youth at sentencing. Moreover, with respect to his “as-applied” constitutional challenge under the eighth amendment, the allegations presented in the defendant’s postconviction petition and appellate brief fail to demonstrate that the particular facts and circumstances of his case made him more akin to a juvenile subject to Miller protections, and less like an adult, or that his mandatory life sentence for a double murder of two individuals is cruel and unusual. See People v. Thompson, 2015 IL 118151 , ¶ 37 (an as-applied constitutional challenge is by definition dependent on the particular facts and circumstances of an individual defendant). ¶ 21 Third, by now it is well established that even in light of Miller, “the mandatory sentence of life without parole for defendants who commit multiple murders, as provided in section 5-8-1(a)(1)(c), can be validly applied to adults,” making the statute facially valid. People v. Davis, 2014 IL 115595 , ¶¶ 30, 43. For all these reasons, the defendant’s eighth amendment challenge fails. ¶ 22 The defendant next contends that his mandatory life sentence violates the proportionate penalties clause of the Illinois Constitution, which requires that all penalties be determined based on the “seriousness of the offense and with the objective of restoring the offender to useful citizenship.” Ill. Const. 1970, art. I, § 11. He argues that his sentence is so disproportionate to the crime that it shocks the moral sense of the community in light of his youthfulness at age 20, his culpability and “the ill-considered circumstances of his offense,” and his “demonstrated rehabilitative potential.” See People v. Miller, 202 Ill. 2d 328 , 338 (2002) (hereinafter Leon Miller) (a statute may violate the proportionate penalties clause if the criminal punishment is degrading, cruel, or so wholly disproportionate to the offense that it shocks the moral sense of the community). ¶ 23 As with his eighth amendment challenge, the defendant argues that recent social science research demonstrates that the trial court should have been permitted to consider his age and its attendant characteristics prior to imposing the mandatory life sentence. The defendant relies on Harris I, 2016 IL App (1st) 141744 , and House, 2015 IL App (1st) 110580 , in arguing that his petition must advance. However, since the filing of the defendant’s present petition for leave to file a successive postconviction petition, the supreme court issued its opinion in Harris II, 2018 IL 121932 , ¶¶ 35-48, which overturned both of the cases relied on by the defendant. Harris II was a direct appeal case wherein the supreme court held that the record was insufficiently developed to address defendant’s contention that Miller applied in the context of his proportionate penalties claim. Defendant argued that his 76-year sentence shocked the moral sense of the community, given the facts of his case, his youth, and other mitigating -5-  circumstances. The supreme court declined to consider the matter, noting that there was no evidentiary hearing or factual development to support it in the trial court. However, Harris II noted that defendant was not foreclosed from raising the claim and that it “could *** potentially be raised” in a postconviction petition. Id. ¶ 48. ¶ 24 Here, the defendant argues that we need not address his claim on the merits but, instead, should allow him the opportunity to develop his claim, with the assistance of appointed counsel, as to whether Miller can apply to a 20-year-old for proportionate penalties purposes. Harris II, however, made no mention of exactly what is necessary to overcome the high bar for leave to file a successive postconviction petition, and we find that a flat allegation as to evolving science on juvenile maturity and brain development is simply insufficient. See People v. Tidwell, 236 Ill. 2d 150 , 161 (2010) (a defendant seeking leave to institute a successive postconviction “must submit enough in the way of documentation to allow a circuit court to” determine whether leave should be granted). Other than generally asserting studies that show that sometimes youthfulness can extend into a person’s twenties, the defendant does not now allege how he was particularly affected by any immaturity, and it is undisputed that he did not suffer from any cognitive or developmental impairments. Further, the allegations relating to his family history do not rise to the level of special circumstances that would provide a compelling reason to advance his successive postconviction petition. See Smith, 2014 IL 115946 , ¶ 35. ¶ 25 In addition, contrary to the defendant’s contention otherwise, his degree of culpability and adult age do not justify advancing his petition. The defendant relies on the seminal case, Leon Miller, wherein our supreme court held defendant’s mandatory sentence for murder was constitutionally disproportionate as applied. There, defendant, who had been charged with two counts of murder via accountability and transferred to adult criminal court, was 15 years old when his friends committed a double murder. He had “one minute to contemplate his decision to participate in the incident,” where he “stood as a lookout during the shooting, but never handled a gun.” Leon Miller, 202 Ill. 2d at 341 . Defendant was ultimately sentenced to a mandatory life term under the multiple-victims murder statute. The supreme court found that the convergence of the transfer, accountability, and multiple-victims murder statute, combined with the fact that the juvenile defendant was “the least culpable offender imaginable,” rendered his sentence unconstitutional. Id. The court declared that a mandatory life sentence in that instance “grossly distorts the factual realities of the case and does not accurately represent defendant’s personal culpability such that it shocks the moral sense of the community.” Id. The court further noted that its decision was consistent with the longstanding distinction between juvenile and adult offenders, while observing that the multiple-victims murder statute had been upheld with respect to both juvenile principals and adult accomplices. Id. ¶ 26 The defendant now likens his case to Leon Miller. His case, however, is distinguishable in many important respects. As discussed, the defendant was an adult. In the past, Illinois courts have held that Leon Miller is inapplicable to young adults. The appellate court in People v. Winters rejected defendant’s as-applied proportionate penalties challenge as to the murder he committed at age 18. See People v. Winters, 349 Ill. App. 3d 747 , 750-51 (2004). Winters further noted that the multiple-victims murder statute had withstood constitutional challenges by adult defendants, even where they were convicted under an accountability theory. Id. The Winters court found that, under the statute, “an adult defendant’s degree of participation is irrelevant whether that defendant is the actual perpetrator or an accomplice.” Id. at 751. -6- ¶ 27 One of the cases relied on by the defendant—House, 2019 IL App (1st) 110580-B , ¶¶ 46, 64—held, in contrast to Winters, that defendant’s conviction for murder by accountability and mandatory sentence under the multiple-victims murder statute violated the proportionate penalties clause, where defendant was age 19 during the offense, minimally culpable since he acted as a lookout, and had no prior violent criminal history. House noted that it was appropriate to consider the degree of participation even for adult offenders, while observing that the codefendant there, who was age 17 with a similar level of culpability, had already been released from prison. Id. House also cited the continuing brain development in adolescents as a basis for its holding and found that under United States Supreme Court jurisprudence there was no bright line rule for determining when a juvenile becomes an adult, noting the designation of age 18 for adulthood “appears to be somewhat arbitrary.” Id. ¶¶ 54-55. But see Harris II, 2018 IL 121932 , ¶ 60 (noting that new research findings do not necessarily alter the traditional line at age 18 between adults and juveniles); LaPointe, 2018 IL App (2d) 160903 , ¶ 44 (finding, on the contrary, that United States Supreme Court jurisprudence explicitly drew a bright line between juveniles and adults at age 18). ¶ 28 Nevertheless, as we have previously stated, our supreme court’s holding in Harris II overturned the House decision. Even if we were to follow the House court’s reasoning, the defendant’s as-applied proportionate penalties claim in this case still must fail. Unlike in House, he was not a teenager on the cusp between a juvenile and adult who was minimally culpable. Additionally, the defendant in this case was far from the “least culpable offender imaginable.” Rather, he developed an intricate plan for the murders, executed those plans, and elicited the aid of his younger brother in doing so. In Leon Miller, defendant acted only as a momentary lookout and did not enter the building where the actual murder occurred. Here, by contrast, the defendant significantly participated in the murders and in the concealment of a homicidal death. He began planning the murders several weeks in advance; he and his younger brother decided they would kill their grandmother and her friend, dispose of the friend’s body, and frame the friend for their grandmother’s murder. After the defendant beat his grandmother to death with a hammer, he helped his brother beat the friend to death with the same hammer. The men then tried to develop an alibi by going to visit their mother in the hospital. The defendant staged a purported discovery of his grandmother’s body by inviting a friend to dinner at the grandmother’s house. Thereafter, the defendant and his brother dumped their grandmother’s friend’s body in a shale pit and tried to make it look like the friend killed their grandmother. The defendant has not shown any remorse for his involvement in the crimes. Thus, the evidence established that the defendant was the principal offender and was far from minimally culpable. See White I, 209 Ill. App. 3d at 868 (finding that the evidence presented at trial was sufficient to support his convictions). In short, the defendant did not lack the necessary degree of culpability for a mandatory life sentence, as he now argues. ¶ 29 Having reviewed the defendant’s case in light of his present contentions, we cannot say that the application of the multiple-victims murder statute rendered his mandatory life term unconstitutional as applied under the proportionate penalties clause. Given the violent and serious nature of these murders; the defendant’s culpability in planning, committing, and attempting to avoid accountability of the crimes; and his status as an adult principal offender, a mandatory sentence of natural-life imprisonment does not shock the moral sense of the community and does not violate the proportionate penalties clause of the Illinois Constitution. See Pittman, 2018 IL App (1st) 152030 , ¶ 40 (similarly finding). -7- ¶ 30 Furthermore, even though the court did not take the defendant’s age into account during sentencing, several appellate cases have determined that a trial court’s failure to consider a defendant’s youth amounts to nothing more than a garden variety claim that the court abused its sentencing discretion. See People v. Hoover, 2019 IL App (2d) 170070 , ¶ 38 (citing LaPointe, 2018 IL App (2d) 160903 , ¶ 61). For the purposes of postconviction proceedings, any such allegation does not amount to a “genuine claim of a constitutional deprivation.” (Emphasis omitted.) Id. And it is not the same as contending that his life sentence was so disproportionate as to violate the constitutional prohibition. Id. ¶ 31 Although the mandatory sentencing law for juveniles and young adults continues to evolve, we do not believe this case presents one of those rare instances where the defendant should be allowed to proceed in his successive postconviction petition. See Bailey, 2017 IL 121450 , ¶ 39 (“successive postconviction petitions are highly disfavored”). Simply put, the defendant cannot establish the necessary prejudice because his claims are legally meritless, his factual assertions are unsupported, and his successive petition is insufficient to justify further proceedings under the Act. ¶ 32 III. CONCLUSION ¶ 33 We affirm the denial of the defendant’s motion for leave to file a successive postconviction petition. ¶ 34 Affirmed. -8-

2020-12-03 23:03:25.192518+00

http://www.illinoiscourts.gov/Opinions/AppellateCourt/2020/4thDistrict/4180773.pdf

Digitally signed by Reporter of Decisions Reason: I attest to Illinois Official Reports the accuracy and integrity of this document Appellate Court Date: 2020.12.03 13:39:24 -06'00' People v. Pope, 2020 IL App (4th) 180773 Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. Caption JOHN A. POPE, Defendant-Appellant. District & No. Fourth District No. 4-18-0773 Filed May 22, 2020 Decision Under Appeal from the Circuit Court of Pike County, No. 17-CF-12; the Hon. Review Diane Lagoski, Judge, presiding. Judgment Affirmed. Counsel on Gary W. Wangler, of Belleville, for appellant. Appeal Zachary P. Boren, State’s Attorney, of Pittsfield (Patrick Delfino, David J. Robinson, and Luke McNeill, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People. Panel PRESIDING JUSTICE STEIGMANN delivered the judgment of the court, with opinion. Justices Knecht and Turner concurred in the judgment and opinion.  OPINION ¶1 In January 2017, the State charged defendant, John A. Pope, with seven counts of predatory criminal sexual assault of a child (720 ILCS 5/11-1.40(a)(1) (West 2016)). ¶2 In December 2017, the State charged defendant with two counts of indecent solicitation of a child (id. § 11-6(a)), three counts of aggravated criminal sexual abuse (id. § 11-1.60(b)), and two additional counts of predatory criminal sexual assault of a child (id. § 11-1.40(a)(1)). The juvenile victims were E.E.P. (11 years old at the time of the alleged offense), M.E.P. (12 years old), and E.M.P. (14 years old). ¶3 In April 2018, at defendant’s jury trial, the three juvenile victims testified as State’s witnesses by videoconferencing from chambers outside the presence of defendant and the jury. The jury ultimately found defendant guilty of four counts of predatory criminal sexual assault of a child (E.E.P.), guilty of aggravated criminal sexual abuse (E.E.P.), guilty of indecent solicitation of a child (M.E.P.), guilty of aggravated criminal sexual abuse (M.E.P.), guilty of predatory criminal sexual assault of a child (M.E.P.), guilty of indecent solicitation of a child (E.M.P.), guilty of aggravated criminal sexual abuse (E.M.P.), not guilty of one count of predatory criminal sexual assault of a child (E.E.P.), and not guilty of three counts of predatory criminal sexual assault of a child (M.E.P.). The trial court later sentenced defendant to two consecutive natural life prison terms for predatory criminal sexual assault of a child and concurrent terms for the remaining counts. ¶4 Defendant appeals, arguing (1) the trial court improperly applied the rape shield statute (725 ILCS 5/115-7 (West 2016)), (2) the trial court erred by allowing the juvenile victims to testify in chambers with multiple support persons present, (3) the trial court gave an improper deadline instruction to the jury, which caused them to return a rushed verdict, (4) he received ineffective assistance of counsel, and (5) he was prejudiced by “cumulative error.” We disagree and affirm. ¶5 I. BACKGROUND ¶6 A. The Charges ¶7 In January 2017, the State charged defendant with seven counts of predatory criminal sexual assault of a child (720 ILCS 5/11-1.40(a)(1) (West 2016)). ¶8 In December 2017, the State charged defendant with two counts of indecent solicitation of a child (id. § 11-6(a)), three counts of aggravated criminal sexual abuse (id. § 11-1.60(b)), and two additional counts of predatory criminal sexual assault of a child (id. § 11-1.40(a)(1)). ¶9 B. The Trial ¶ 10 Prior to defendant’s trial, defendant filed a motion in limine in which he argued that section 115-7 of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/115-7 (West 2016)), commonly known as the rape shield statute, should not prevent him from presenting evidence of the victims’ prior sexual assaults. The trial court denied the motion. ¶ 11 In April 2018, defendant’s jury trial commenced. In his opening statement, defense counsel stated the evidence would show that a witness, Leonard Jason Bullock, had a prior sex offense. Prior to Bullock’s testimony, the State notified the trial court that it had discovered Bullock’s prior sex offense was a misdemeanor conviction committed more than 10 years ago. Defense -2-  counsel noted that both he and the State were operating under the misunderstanding that the offense could be used to impeach Bullock. Counsel feared that he told the jury he would “demonstrate this guy is a sex offender. To cut me off now looks like I told the jury something untrue.” The court noted that this was a “mutual mistake made by counsel on both sides” but decided that, because the offense was easily explainable, the court would allow defense counsel to inquire about the offense. During cross-examination, Bullock confirmed that he was convicted of a misdemeanor sex offense but was no longer required to register as a sex offender. ¶ 12 The State introduced the testimony of multiple police officers and personnel from the Illinois State Police forensic lab. The three juvenile victims also testified but did so by videoconferencing from chambers outside the presence of defendant and the jury. The trial court allowed the presence of support persons while each victim testified but instructed the parties prior to the victims testifying, as follows: “You need to make sure that your support people are clear. They are not to shake their head, they are not to nod. I would prefer no expression from them one way or the other.” The court further stated that the support persons should give “no indication as to how those little girls should answer questions.” ¶ 13 On Monday April 16, 2018, the State rested its case. On Tuesday, following the testimony of several defense witnesses, defense counsel stated outside the presence of the jury that he thought “we’ll get done with evidence today,” and the trial court replied, “Marvelous.” That afternoon, defendant chose to testify in his defense. After defense counsel completed his direct examination of defendant, the trial court informed the jurors that it would dismiss them for the day. The court further informed the jurors that they would begin “a little later” the next morning because the court had committed to performing a wedding “a long, long time ago.” The court also told the jurors that it “told counsel—we have to—I think [defense counsel] and I both need to be out of town Thursday so we’re gonna [sic] finish tomorrow so do not plan anything tomorrow night. I’m hoping this will move along fairly quickly but we’ll go as late as is necessary tomorrow night.” ¶ 14 The next morning, the trial court resumed proceedings, stating: “THE COURT: Ladies and gentleman, I appreciate your patience in letting me do this wedding this morning. I committed to this a long time ago and I know this young couple appreciates that I didn’t make them wait. At that point, I had no idea I was gonna [sic] be in jury trial in this matter. At this point, we’re going to resume [defendant’s] testimony and then we will just keep going. As far as I’m concerned, we are going to rock and roll today so that we can get this done.” ¶ 15 Defendant concluded his case, and the State offered rebuttal testimony. Following closing arguments, the jury deliberated for approximately 3 hours and 20 minutes before reaching a verdict. Ultimately, the jury found defendant guilty of 10 counts and not guilty of 4 counts, as detailed above. ¶ 16 C. Posttrial Motion and Sentencing ¶ 17 In May 2018, defendant filed a motion for a new trial, and in October 2018, defendant filed an addendum to the motion. Defendant sought to supplement the record with two affidavits from individuals who attended the trial. Both affidavits asserted the trial court rushed the jury -3-  to a verdict. In support of that assertion, each affidavit referred to statements the trial court allegedly made to the jury; however, the alleged statements were not in the record except for the trial court’s remark, “marvelous,” which we discuss below. ¶ 18 At the hearing on the motion, the trial court disputed the contents of the affidavits. The court stated, “I can tell you with absolute certainty, not one word was uttered in front of the jury that was not in that record, not a word.” The court said it remembered clearly having conversations with defense counsel “about where we needed to be and when we needed to be finished. None of that was ever communicated to the jury.” And, in fact, the record shows the court’s statement was correct. ¶ 19 Immediately following the hearing on the posttrial motion, the trial court sentenced defendant to two consecutive natural life prison terms for predatory criminal sexual assault of a child and concurrent terms for the remaining counts. ¶ 20 This appeal followed. ¶ 21 II. ANALYSIS ¶ 22 Defendant appeals, arguing (1) the trial court improperly applied the rape shield statute (id.), (2) the trial court erred by allowing the juvenile victims to testify in chambers with multiple support persons present, (3) the trial court gave an improper deadline instruction to the jury which caused them to return a rushed verdict, (4) he received ineffective assistance of counsel, and (5) he was prejudiced by “cumulative error.” For the reasons that follow, we affirm. ¶ 23 A. The Trial Court Properly Applied Section 115-7 of the Code ¶ 24 First, defendant argues that the rape shield statute (id.) was improperly interpreted and applied by the trial court. ¶ 25 1. The Applicable Law ¶ 26 The rape shield statute states as follows: “In prosecutions for predatory criminal sexual assault of a child, *** [and] aggravated criminal sexual abuse, *** the prior sexual activity or the reputation of the alleged victim *** is inadmissible except (1) as evidence concerning the past sexual conduct of the alleged victim *** with the accused when this evidence is offered by the accused upon the issue of whether the alleged victim *** consented to the sexual conduct with respect to which the offense is alleged; or (2) when constitutionally required to be admitted.” Id. § 115-7(a). ¶ 27 “[U]nder proper circumstances, evidence of a child witness’s prior sexual conduct is admissible to rebut the inferences that flow from a display of unique sexual knowledge.” People v. Hill, 289 Ill. App. 3d 859 , 864, 683 N.E.2d 188 , 192 (1997). “The rebuttal of inferences created by age-inappropriate sexual knowledge is not an open invitation to indiscriminately present prior episodes of sexual abuse. [Citation.] The prior sexual conduct must be sufficiently similar to defendant’s alleged conduct to provide a relevant basis for its admission.” Id. “[T]he prior sexual conduct must account for how the child could provide the testimony’s sexual detail without having suffered defendant’s alleged conduct.” Id. at 865. -4- ¶ 28 The trial court has discretion to determine evidence is inadmissible pursuant to the rape shield statute, and a court’s ruling will not be reversed absent an abuse of that discretion. People v. Bates, 2018 IL App (4th) 160255 , ¶ 60, 112 N.E.3d 657 . A trial court abuses its discretion when its ruling is arbitrary “or when no reasonable person would take the view adopted by the trial court.” Id. ¶ 29 2. This Case ¶ 30 In this case, defendant requested the trial court to allow evidence that all the alleged victims in this case were previous victims of sexual assault by a parental figure. The victims’ ages in this case were 11, 12, and 14. The State informed the trial court prior to trial that it did not intend to argue that the victims had unique sexual knowledge they could have learned only from what allegedly happened with defendant. ¶ 31 The trial court noted that Hill required that the “prior sexual conduct must account for how the child could provide the testimony’s sexual detail without having suffered defendant’s alleged conduct.” Hill, 389 Ill. App. 3d at 865. The court concluded that “[t]he purported testimony of these girls, given their ages and the allegations in this case, do not create such a ‘unique knowledge’ that would allow for the admission of such evidence.” ¶ 32 Defendant argues to this court that this evidence could be relevant as evidence of bias, prejudice, or motive. Defendant’s argument is essentially that the victims were biased against defendant because defendant created restrictive rules in the home in which the children lived with defendant. Defendant asks in his brief, “What better way to exit [defendant’s] home than to falsely accuse [d]efendant of sexual assault, when the child was aware that such allegations would most likely affect the change she sought?” However, nothing about the prior sexual assaults (which had nothing to do with defendant) made the victims biased against defendant. Instead, any bias that may have been present existed due to other problems the victims had in the home, and defendant was always free to bring forth relevant evidence related to the victims disliking him for his rules and disciplinary techniques. ¶ 33 Because (1) this evidence would not have been used to rebut an argument of “unique knowledge” and (2) there is no relevant alternative use identified by defendant, the trial court did not abuse its discretion regarding the application of section 115-7 to this case. ¶ 34 B. The Trial Court Did Not Err by Allowing the Victims to Testify in Chambers With Support Persons Present ¶ 35 Defendant next claims that the trial court erred by allowing the victims to testify by use of videoconferencing software in chambers and with multiple support persons present. ¶ 36 1. The Applicable Law ¶ 37 Section 106B-5(a) of the Code states as follows: “In a proceeding in the prosecution of an offense of criminal sexual assault, predatory criminal sexual assault of a child, aggravated criminal sexual assault, criminal sexual abuse, [or] aggravated criminal sexual abuse, *** a court may order that the testimony of a victim who is a child under the age of 18 years *** be taken outside the courtroom and shown in the courtroom by means of a closed circuit television if: (1) the testimony is taken during the proceeding; and -5-  (2) the judge determines that testimony by the child victim *** in the courtroom will result in the child *** suffering serious emotional distress ***.” 725 ILCS 5/106B- 5(a) (West 2016). ¶ 38 Section 106B-5(d)(5) allows “any person or persons whose presence, in the opinion of the court, contributes to the well-being of the child ***, including a person who has dealt with the child in a therapeutic setting concerning the abuse” to be in the room with the child when the child is testifying. Id. § 106B-5(d)(5). A defendant’s confrontation clause rights are not violated when the defendant is allowed to cross-examine the witnesses testifying pursuant to section 106B-5 (id. § 106B-5). People v. Schmitt, 204 Ill. App. 3d 820 , 824-25, 562 N.E.2d 377 , 382 (1990). An appellate court reviews a trial court’s decision to permit closed circuit testimony for an abuse of discretion. See id. at 825. ¶ 39 2. This Case ¶ 40 In this case, the trial court ruled prior to trial that the victims could testify in chambers pursuant to section 106B-5. The court also allowed support persons to be present during the victim’s testimony but warned them to remain neutral and, in particular, avoid in any way indicating how the questions should be answered. Further, the court told the support persons that any warning signs that the children might be going into a dissociative state should be outside the camera’s view. ¶ 41 Defendant complains that the victims were in some way being coached by the support persons in chambers with them or that the support persons in the room were doing something improper, but defendant does not in any way indicate what that might have been. Because this record contains nothing to suggest that the victims were being coached as they testified or that someone interfered with their testimony, we reject defendant’s claim. ¶ 42 Although we reject defendant’s claim, we think it appropriate to address a related constitutional concern. The United States Supreme Court stated in Maryland v. Craig, 497 U.S. 836 , 851 (1990), that “use of the one-way closed circuit television procedure, where necessary to further an important state interest, does not impinge upon the truth-seeking or symbolic purposes of the Confrontation Clause.” The Illinois Supreme Court favorably cited Craig when it stated that, “[w]hile the confrontation clause represents a preference for face-to- face confrontation, that preference ‘must occasionally give way to considerations of public policy and the necessities of the case.’ [Citation.]” (Internal quotation marks omitted.) People v. Cuadrado, 214 Ill. 2d 79 , 89, 824 N.E.2d 214 , 220 (2005). ¶ 43 We acknowledge a historical preference in Illinois for face-to-face confrontation at trial. In People v. Fitzpatrick, 158 Ill. 2d 360 , 365, 633 N.E.2d 685 , 687 (1994), the Illinois Supreme Court determined that the Illinois Constitution explicitly required “face-to-face” confrontation, while the federal constitution merely contained the “ ‘right *** to be confronted’ ” (emphasis omitted) (id. at 367 (quoting U.S. Const., amend. VI)). Shortly after the supreme court’s decision in Fitzpatrick, the Illinois General Assembly in 1994 proposed an amendment to delete the “face to face” language from the Illinois confrontation clause to conform with the language of the federal constitution. People v. Dean, 175 Ill. 2d 244 , 254, 677 N.E.2d 947 , 952 (1997). Following approval of the amendment, the legislature reenacted section 106B-1, thereby allowing “young victims of certain listed sexual crimes to testify by closed circuit television outside the presence of the defendant.” Id. at 255 . -6- ¶ 44 Relying on Craig may be problematic. In Craig, Justice Scalia wrote a dissent joined by three of his colleagues, in which he stated that no policy interest should overcome a defendant’s right to face his or her accusers in court. Craig, 497 U.S. at 861 (Scalia, J., dissenting, joined by Brennan, Marshall, and Stevens, JJ.). Justice Scalia would later author Crawford v. Washington, 541 U.S. 36 (2004), in which the United States Supreme Court established a far more robust framework for protecting the right to confront one’s accuser. ¶ 45 Professor Wayne LaFave echoed Justice Scalia’s Craig misgivings and noted the apparent contradiction between Crawford and Craig, stating, “Some language in Crawford that endorses categorical rules rather than balancing tests is at odds with the Court’s opinion in Craig. Nevertheless courts have continued to apply Craig, noting that the Crawford decision did not mention Craig, and that it addressed when confrontation is required, not what procedures constitute confrontation.” 6 Wayne R. LaFave, Criminal Procedure § 24.2(e) (4th ed. 2019). The tension between these cases is only exacerbated by the fact that, while Crawford does not mention Craig, it does mention cases that Craig relied upon, like Ohio v. Roberts, 448 U.S. 56 (1980), which was abrogated and rejected by Crawford. Crawford, 541 U.S. at 57-58 . ¶ 46 This court has the same misgivings about limitations on the rights of defendants that Justice Scalia and Professor LaFave raised; however, we cannot ignore what Illinois case law indicates. Because the Illinois Supreme Court has recognized that Craig remains good law after Crawford, we are bound to follow it. ¶ 47 Under prevailing law, the trial court did not abuse its discretion by allowing the children to testify by use of a videoconferencing system, nor did the trial court err by allowing support persons to be present with the children while they testified. ¶ 48 C. The Trial Court Did Not Issue an Improper Deadline to the Jury ¶ 49 Defendant next argues that the trial court in some way rushed the jury to return a “hasty and ill-considered verdict.” In making this argument, defendant relies upon affidavits produced by individuals who observed the courtroom proceedings, not upon the transcript of the proceedings. ¶ 50 1. The Applicable Law ¶ 51 In determining whether a trial court’s comments to the jury are proper, “the test is whether, upon examination of the totality of circumstances, the language used actually interfered with the jury’s deliberations and coerced a guilty verdict.” (Emphasis added.) People v. Fields, 285 Ill. App. 3d 1020 , 1029, 675 N.E.2d 180 , 186 (1996). Although the length of deliberations following a trial court’s comments might be relevant to the question of coercion, informing a jury that it will be sequestered after a certain time is not necessarily coercive. Id. ¶ 52 In determining whether affidavits may be used to supplement the trial court’s record, this court has held that “[t]he law does not allow the contradiction of the record with an affidavit from outside the record, even an affidavit by the trial judge.” People v. Merritt, 395 Ill. App. 3d 169 , 178, 916 N.E.2d 631 , 639 (2009). -7- ¶ 53 2. This Case ¶ 54 As a preliminary matter, we note that, pursuant to our previous ruling in Merritt, we will not consider the affidavits proffered by defendant because they contradict the record. Id. That is, the affidavits purport to contain statements the trial court allegedly made in the presence of the jury, but these alleged statements do not appear in the transcript of proceedings. As the trial court noted, the record contains a complete transcript of the proceedings that took place within the presence of the jury. Thus, in resolving defendant’s claim that the trial court in some way rushed the jury, we will utilize only the official record and disregard entirely the affidavits defendant presented to the trial court because we will not countenance any effort to contradict the official record. ¶ 55 Defendant identifies the comments with which he takes issue as follows: (1) in response to defense counsel informing the trial court that he thought “we’ll get done with evidence today,” the court said, “Marvelous”; (2) “[a]nd I told counsel—we have to—I think [defense counsel] and I both need to be out of town Thursday so we’re gonna [sic] finish tomorrow so do not plan anything tomorrow night. I’m hoping this will move along fairly quickly but we’ll go as late as is necessary tomorrow night”; and (3) “[a]s far as I’m concerned we are going to rock and roll today so that we can get this done.” ¶ 56 Because the record reveals that the “marvelous” comment was not made in the presence of the jury, it cannot have influenced the jury. ¶ 57 The other statements were made in the presence of the jury, but they took place during the trial itself and not during deliberations. The standard is whether “the language used actually interfered with the jury’s deliberations and coerced a guilty verdict.” (Emphasis added.) Fields, 285 Ill. App. 3d at 1029 . These comments are so far removed from jury deliberations that there is no evidence—and no inference can be drawn from the record—that the jury even remembered the comments. When the comments are as benign and remote as the ones at issue in this case, we conclude that the trial court’s comments were not improper. ¶ 58 D. Defendant Did Not Receive Ineffective Assistance of Counsel ¶ 59 Next, defendant argues he received ineffective assistance of counsel because his counsel (1) failed to make an offer of proof regarding the victim’s prior sexual assault, (2) failed to call certain witnesses identified by defendant, (3) failed to “make greater and more persuasive efforts to dissuade [defendant] from testifying,” (4) failed to properly investigate Bullock’s prior sex offense and therefore misstated the facts of that offense during his opening statement, and (5) called Minnie Pope (defendant’s wife) as a defense witness. We disagree. ¶ 60 1. The Applicable Law ¶ 61 All defendants enjoy the constitutional right to effective assistance of counsel. U.S. Const., amends. VI, XIV; Ill. Const. 1970, art. I, § 8. To prevail on a claim of ineffective assistance of counsel, a defendant must demonstrate that counsel’s performance was deficient and that the deficient performance prejudiced the defendant. People v. Bradford, 2019 IL App (4th) 170148 , ¶ 14, 123 N.E.3d 1285 . ¶ 62 To establish deficient performance, a defendant must show his counsel’s performance fell below an objective standard of reasonableness. Id. It is not sufficient for a defendant to show that counsel’s representation was imperfect because the constitution guarantees only a -8-  reasonably competent counsel. Harrington v. Richter, 562 U.S. 86 , 110 (2011) (citing Strickland v. Washington, 466 U.S. 668 , 687 (1984)). Instead, a defendant must show his counsel’s representation undermined the proper functioning of the adversarial process to such an extent that the defendant was denied a fair trial. Id. (citing Strickland, 466 U.S. at 686 ). ¶ 63 To show prejudice, a defendant must demonstrate “that there is a ‘reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’ ” People v. Domagala, 2013 IL 113688 , ¶ 36, 987 N.E.2d 767 (quoting Strickland, 466 U.S. at 694 ). “The likelihood of a different result must be substantial, not just conceivable.” Harrington, 562 U.S. at 112 . “A defendant must satisfy both prongs of the Strickland test and a failure to satisfy any one of the prongs precludes a finding of ineffectiveness.” People v. Simpson, 2015 IL 116512 , ¶ 35, 25 N.E.3d 601 . ¶ 64 2. This Case ¶ 65 First, defendant claims his trial counsel failed to make an “offer of proof regarding prior sexual assaults by others committed against the juvenile witnesses.” We note defense counsel did argue that he should be able to question the victims about their prior sexual assaults. It is unclear what information counsel could have included in an offer of proof beyond what was presented to the trial court, and defendant does not suggest to this court what this information would be. Based upon this record, it is impossible for this court to conclude that an offer of proof could have had any impact. ¶ 66 Second, defendant claims that trial counsel was ineffective because he failed to call certain witnesses at trial. Because the decision whether to call any particular witness is generally a matter of trial strategy, that decision usually cannot be the basis for a claim of ineffective assistance of counsel. People v. Cooper, 2013 IL App (1st) 113030 , ¶ 63, 773 N.E.3d 789 . Further, defendant does not identify who these witnesses are or what their testimony would have been. Again, based upon this record, it would be impossible to conclude that these unknown witnesses could have had any impact on the outcome of the trial when we do not know who they are or what their testimony would have been. ¶ 67 Third, defendant claims that trial counsel was ineffective for failing to persuade defendant not to testify at trial. This contention is utterly without merit. It is axiomatic that, in our criminal justice system, the decision whether or not to testify lies solely with the defendant. People v. Phillips, 371 Ill. App. 3d 948 , 951, 864 N.E.2d 823 , 827 (2007). Prior to defendant’s testifying in this case, the trial court asked (1) whether the choice was defendant’s own, (2) whether defendant discussed his decision with counsel, and (3) whether he was satisfied with counsel’s representation. Defendant answered all of these questions in the affirmative. We conclude that trial counsel cannot be ineffective for failing to “persuade” a defendant to give up one of his fundamental rights. ¶ 68 Fourth, defendant claims trial counsel was ineffective for (1) inadequately investigating Bullock’s prior sex offense and (2) misstating the evidence surrounding that offense during opening statement. During his opening statement, defense counsel stated: “Jason Bullock is—should he testify, you’re gonna hear that he, himself, is a sex offender ***. So Mr. Jason Bullock says the things he says not only from the point of view of a convicted sex offender himself but as somebody who could benefit greatly by the fact that [defendant’s] reputation was harmed ***.” -9-  Ultimately, the trial court allowed questioning related to Bullock’s sex offense, and Bullock did testify that he was convicted of a misdemeanor sex offense, although he was no longer required to register as a sex offender. ¶ 69 When it became clear after further investigation that Bullock’s offense was less serious than either party originally thought, this discrepancy was never revealed to the jury. Instead, the jury was told they would hear the witness was a sex offender, and he testified as such on cross-examination. Because defense counsel in fact did not misstate the evidence the jury would hear, counsel could not have been ineffective in this instance. ¶ 70 Fifth, defendant claims that defense counsel was ineffective because he called Minnie Pope as a defense witness. As we explained above, because the decision of which witnesses to call is generally a question of trial strategy, that decision usually cannot be the basis for a claim of ineffective assistance of counsel. Cooper, 2013 IL App (1st) 113030 , ¶ 63. Minnie Pope’s testimony was helpful to the defense in that (1) she described how the victims were caught in her and defendant’s bedroom without permission, (2) she observed the victims going into her drawers where she stored her sex toys, and (3) she did not believe the victims were telling the truth. It was not objectively unreasonable for counsel to call such a witness, even if the witness in hindsight was less helpful to the defense than defense counsel might have hoped. ¶ 71 We further note that defendant raised additional instances of ineffective assistance in his reply brief, including that defendant received ineffective assistance of counsel because counsel failed to (1) move for a psychological or psychiatric examination of the victims; (2) consult experts concerning issues of reactive attachment disorder, post-traumatic stress disorder, and the minor’s likelihood of engaging in manipulation, fabrication, prevarication, and control; and (3) (a) obtain or review records from the Kansas foster system and (b) identify witnesses who could testify to the minors’ prior psychological diagnoses and their history of neglect and abuse. However, issues or arguments that a party fails to raise in the party’s initial brief cannot later be raised in a reply brief. Accordingly, we will not consider them. People v. Curry, 2013 IL App (4th) 120724 , ¶ 89, 990 N.E.2d 1269 . ¶ 72 E. Defendant’s Claim of Cumulative Error ¶ 73 Defendant’s final argument consists of a laundry list of complaints, unsupported by citations of authority, which he claims amounts to “cumulative error” requiring reversal. Defendant’s claims of error include the following: (1) defendant objected to the State’s asking a victim how Minnie Pope’s not believing her made her feel as irrelevant, but the trial court never ruled on this objection; (2) the court sustained objections related to bolstering the victims’ credibility; (3) defense counsel misstated Bullock’s sex offender status in opening statements; (4) the court erred by denying defendant’s motion in limine to bar Bullock from testifying about certain irrelevant and prejudicial matters; (5) the court overruled an objection regarding Bullock stating that he would not lie about someone being a sex offender due to his being convicted of a sex offense in the past; (6) the court erred by allowing the State to question a witness about her son’s prior felony conviction; (7) the court erred by sustaining an objection regarding whether defendant ever used “sexually latent” language in a disciplinary context; (8) the jury was improperly instructed; (9) defendant’s motion for a directed verdict at the close of the State’s case-in-chief should have been granted; and (10) the State’s “Occam’s Razor” and “other remarks” in closing argument were improper. - 10 - ¶ 74 1. Failure to Comply With Supreme Court Rules ¶ 75 Unfortunately, these claims are impossible to review due to appellate counsel’s failure to abide by Illinois Supreme Court Rule 341 (eff. May 25, 2018). “ ‘A reviewing court is entitled to have the issues clearly defined with pertinent authority cited and is not simply a depository into which the appealing party may dump the burden of argument and research.’ [Citation.]” People v. Oglesby, 2016 IL App (1st) 141477 , ¶ 205, 69 N.E.3d 328 . Accordingly, Illinois Supreme Court Rule 341(h)(7) (eff. May 25, 2018) requires that an appellant’s brief contain “[a]rgument, which shall contain the contentions of the appellant and the reasons therefor, with citation of the authorities and the pages of the record relied on.” Illinois Supreme Court Rule 341(h)(6) (eff. May 25, 2018) says that the statement of facts “shall contain the facts necessary to an understanding of the case *** and with appropriate reference to the pages of the record on appeal.” The failure to cite any authority or to articulate an argument will result in forfeiture of that argument on appeal. See, e.g., People v. Olsson, 2014 IL App (2d) 131217 , ¶ 16, 13 N.E.3d 802 . ¶ 76 Appellate counsel submitted a statement of facts approximately one-half page in length, containing only one citation of the record. The report of proceedings and the common-law record combined total 1931 pages, making a proper statement of facts all the more necessary. ¶ 77 Appellate counsel’s argument lacks appropriate citation to authority. The citations that counsel does provide fall short of the standard prescribed in Illinois Supreme Court Rule 341(h)(7) (eff. May 25, 2018). The only claim substantiated with both a citation to the record and a citation to some authority is the one alleging the State made an improper closing argument. We will address this argument below. However, because of counsel’s failure to cite the record or the relevant authority for the remaining contentions, we conclude that defendant has forfeited every other argument in the section. Oglesby, 2016 IL App (1st) 141477 , ¶ 205. ¶ 78 2. Defendant’s Claim of Improper Closing Argument ¶ 79 Defendant claims that the State made an improper closing argument because of the State’s reference to “Occam’s Razor.” Although defendant cites People v. Wheeler, 226 Ill. 2d 92 , 121, 871 N.E.2d 728 , 744 (2007), in support of his claim that the standard of review is de novo, this is not settled law. See People v. Ali, 2019 IL App (2d) 161016 , ¶ 13, 137 N.E.3d 827 (noting that, while Wheeler utilizes de novo review, it cites approvingly and relies upon People v. Blue, 189 Ill. 2d 99 , 128, 724 N.E.2d 920 , 935 (2000), which applied an abuse of discretion standard to the same issue). However, because we conclude in this case that the State’s closing argument was entirely appropriate, we need not address which standard of review applies; defendant’s argument fails under any standard of review. ¶ 80 Prosecutors are afforded wide latitude during closing argument and may properly comment on the evidence presented and reasonable inferences drawn from that evidence, respond to comments made by defense counsel that invite a response, and comment on the credibility of a witness. People v. Burman, 2013 IL App (2d) 110807 , ¶ 25, 986 N.E.2d 1249 . To determine whether a prosecutor’s comment in closing argument was improper, a reviewing court must view such comment in its proper context. People v. Sykes, 2012 IL App (4th) 111110 , ¶ 47, 972 N.E.2d 1272 . ¶ 81 In this case, we conclude that the State did not make an improper argument. The State simply argued to the jury that “Occam’s Razor” states that “the most likely explanation is the one that makes the fewest assumptions.” The State then argued that the defendant’s explanation - 11 -  required the jury to assume “everyone [else] is lying.” “Occam’s Razor” is not an uncommon term, and when one looks at what was actually said, it is a fairly generic and common argument related to the credibility of defendant’s version of events. Such arguments are made every day in courtrooms around the country, and that argument was perfectly acceptable. ¶ 82 III. CONCLUSION ¶ 83 For the reasons stated, we affirm the trial court’s judgment. ¶ 84 Affirmed. - 12 -

2020-12-03 23:03:26.660389+00

http://www.illinoiscourts.gov/Opinions/AppellateCourt/2020/2ndDistrict/2121216-B.pdf

Digitally signed by Reporter of Decisions Reason: I attest to Illinois Official Reports the accuracy and integrity of this document Appellate Court Date: 2020.12.03 10:14:35 -06'00' People v. Luna, 2020 IL App (2d) 121216-B Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. Caption DRESHAWN LUNA, Defendant-Appellant. District & No. Second District No. 2-12-1216 Filed September 29, 2020 Decision Under Appeal from the Circuit Court of Lake County, No. 10-CF-4004; the Review Hon. Mark L. Levitt, Judge, presiding. Judgment Affirmed in part and vacated in part. Cause remanded. Counsel on James E. Chadd, Thomas A. Lilien, and Jaime L. Montgomery, of Appeal State Appellate Defender’s Office, of Elgin, for appellant. Michael G. Nerheim, State’s Attorney, of Waukegan (Patrick Delfino, Edward R. Psenicka, and Diane L. Campbell, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.  Panel JUSTICE JORGENSEN delivered the judgment of the court, with opinion. Presiding Justice Birkett and Justice Schostok concurred in the judgment and opinion. OPINION ¶1 In 2012, a jury convicted defendant, Dreshawn Luna, of first degree murder (720 ILCS 5/9-1(a)(1) (West 2010)) and aggravated battery with a firearm (720 ILCS 5/12-4.2(a)(1) (West 2010)) for crimes that he committed on July 4, 2010, when he was age 15. The trial court sentenced defendant to consecutive prison terms totaling 51 years for the first degree murder conviction (26 years for the murder, plus 25 years as an enhancement for personally discharging a firearm that proximately caused death) and 10 years for the aggravated battery conviction. On appeal, this court rejected defendant’s arguments concerning ineffective assistance of counsel, the constitutionality of his sentence, and the jury instructions supporting the firearm enhancement. However, we vacated a DNA fee and conducted, per defendant’s request, an in camera inspection of sealed medical documents. People v. Luna, 2015 IL App (2d) 121216-U . ¶2 Presently, this case returns to us, following our supreme court’s entry of a supervisory order, directing us to vacate our prior judgment, consider the effect of People v. Buffer, 2019 IL 122327 , on the issue of whether defendant’s sentence constitutes an unconstitutional de facto life sentence, and determine if a different result is warranted. People v. Luna, No. 119310 (Ill. Mar. 25, 2020) (supervisory order). For the following reasons, we affirm defendant’s conviction, vacate his sentence, and remand this matter for a new sentencing hearing. ¶3 I. BACKGROUND ¶4 A. Trial ¶5 Detailed facts concerning the trial proceedings were set forth in our prior order, and we need not repeat them here. Luna, 2015 IL App (2d) 121216-U , ¶¶ 7-28. For context, however, we summarize that, on the evening of July 3, 2010, and into the early morning hours of July 4, 2010, there was a party at the Ramada Inn in Waukegan. Defendant played dice and lost money; later, in the parking lot, he complained that he needed his money back. Marquise Coleman asked defendant for his gun, and defendant removed it from his waistline. Coleman returned to the party with defendant’s gun and robbed the people playing dice, including Farkhan Jones, at gunpoint. Coleman then returned to the parking lot, and defendant demanded that Coleman return the gun and the money that defendant had lost in the game. Coleman did so, and defendant waved at a car that was driving away, motioning for it to come over. A man, later identified as Patrick Enis, exited the vehicle and walked up to defendant. Enis and defendant appeared to have an unfriendly conversation. They walked toward the driver’s side of the car. Coleman saw defendant point the gun at the driver, Jones, and shoot. Jones died from his injuries. Enis ran away, and defendant shot at him while he was running. ¶6 Enis confirmed that he saw defendant take a gun out from his pocket and hold it near Jones’s head. Jones leaned back and tried to push the gun out of his face. Enis testified that he -2-  turned to run and heard the first gunshot. He heard more gunshots and felt a bullet pass by him. Enis looked behind him to see if defendant was following him, and he saw defendant aiming a gun in his direction. Enis heard another shot and was hit in the back. Enis testified repeatedly that he was “100%” positive that defendant was the person who shot him. Another witness testified that, after the shooting, defendant, holding a gun on his lap, said that Jones was shot because he reached for the gun. ¶7 The jury convicted defendant of first degree murder and aggravated battery with a firearm, further finding that he personally discharged the firearm used in those crimes. ¶8 B. Sentencing ¶9 On October 12, 2012, the trial court denied defendant’s motion for a new trial and proceeded to sentencing. The State emphasized that defendant had a history of repeated delinquency (which included committing burglary with his older brother at age nine), that an expert deemed him as potentially having antisocial personality disorder, and that, while detained, defendant had demonstrated a continued lack of respect for authority. The State argued that, in terms of mitigation, there was “absolutely nothing” to consider, and it requested a term of 90 years’ imprisonment. ¶ 10 Defense counsel disagreed with the State’s position and argued that “the mitigation is everywhere.” Counsel emphasized that defendant was 15 years old at the time of the offense. Counsel explained that, while the presentence report included that defendant entered the system at age nine, it also reflected that he was a charming, funny kid who related to his peers, was close to his family, received good grades, attended church, and actively participated socially. Counsel argued that the court was sentencing someone who was “not fully formed” at the time of the crimes and related the principles that had been enunciated in Miller v. Alabama, 567 U.S. 460 (2012), just a few months earlier. Namely, counsel argued that juveniles (1) lack maturity and have an underdeveloped sense of responsibility, leading to recklessness and impulsivity; (2) are more vulnerable to negative influences and outside pressures from family and peers; (3) lack the ability to extricate themselves from crime- producing settings, as they have limited control over their environment; and (4) do not have a fully formed character like adults, and their actions are less likely to evidence irretrievable depravity. Moreover, counsel pointed out that defendant’s impulsivity had, in fact, been noted in the presentence report and that there was “not an ounce of planning” in this tragic crime; rather, it reflected the momentary, impulsive act of a 15-year-old, as opposed to a premeditated act. In addition, defendant came from a broken home, his mother did not have time to adequately assist him with issues, and, accordingly, starting at a very young age, he was exposed to gang and crime culture and was in and out of counseling and treatment, without progress. Counsel argued that the sentencing scheme at play, which subjected a juvenile offender to the same sentence as an adult, improperly removed youth from the court’s meaningful consideration. Counsel requested a sentence below the mandatory minimum, arguing that, under Miller, the mandatory sentence that defendant faced was inappropriate for a juvenile. ¶ 11 The court sentenced defendant to consecutive prison terms totaling 51 years for the first degree murder conviction (26 years for the murder, plus 25 years as an enhancement for personally discharging a firearm that proximately caused death) and 10 years for the aggravated battery conviction. It noted that it was “deeply concerned” about defendant’s -3-  lengthy history of involvement in the juvenile justice system, commencing at age nine with a residential burglary, continuing thereafter, and then ending after these crimes, when he was arrested on the street with a loaded weapon. It stated that it considered “very carefully” defendant’s age, the circumstances surrounding his upbringing and home life, the impact of his life on the streets, and his prospects for potential restoration to useful citizenship. Further: “It appears that throughout [defendant’s] lifetime he has received a great deal of opportunity and benefit from the variety of probation officers and individuals that worked with him. Unfortunately, it appears that *** each effort to prevent this tragedy failed at every turn. That said, the sentence that I fashion today must take into account not only punitive measures *** [but I] also must address prospects for his rehabilitation, and restoration, and useful citizenship [which] I don’t take lightly at all. In fact, I am deeply swayed by the defense’s argument that his age—his tender age and his prospects for rehabilitation and restoration must play a very large role in the sentence that I meet [sic] out today. [Defendant’s] conduct, however, in many ways ties my hands. Although he was given the opportunity to succeed at many turns, he has demonstrated repeatedly that he is not willing to conform his conduct to that of which is expected of citizens living in our community. It is true that he is a child in many ways, however, not for purposes of sentencing following conviction of first[-]degree murder and a sentence of aggravated battery with a firearm. Simply not the case.” (Emphasis added.) ¶ 12 Defendant moved the court to reconsider his sentence. He argued that the court erred by not fully considering his age, particularly with respect to the mandatory 25-year firearm enhancement and the consecutive nature of the sentence, which, he argued, effectively resulted in a mandatory life sentence and violated Miller. The court then discussed with counsel that the sentencing scheme that existed at the time mandated a minimum 51-year sentence for defendant. After confirming the mandatory minimum, the court continued: “COURT: And you think what, you think that Miller stands for the proposition that I can disregard Illinois sentencing guidelines? DEFENSE COUNSEL: [The United States] Supreme Court said that the Louisiana state court should have ignored Louisiana guidelines. COURT: Okay. DEFENSE COUNSEL: So, yes, I mean, yes, Judge, we think that in light of the Eighth Amendment to the United States Constitution, the Illinois Constitution, due process clauses of those constitutions, that, yes, that sentencing court should[,] in light of Miller ***, ignore what are called mandatory penalty schemes for juveniles.” ¶ 13 Counsel continued, arguing that additional factors in mitigation should have been considered, in that the circumstances were not likely to reoccur, because defendant would never be a juvenile again, which, he opined, was a big factor contributing to the commission of the crimes. He further noted that the court found that 26 out of 27 possible aggravating factors did not apply in this case, which, counsel argued, should lean in defendant’s favor. ¶ 14 In response, the State distinguished Miller factually and further argued that the court had sentenced defendant compassionately. ¶ 15 The court denied the motion to reconsider. It noted that it had issued close to the minimum sentence that defendant could have received under the “statutory sentencing schemes that are -4-  in place.” The court explained that, although the statutory range for first degree murder was 20 to 60 years, it had imposed upon defendant only 26 years, giving “extreme weight” to the fact that he was a minor, “[albeit] a minor with a delinquent history that is unlike many others.” The court further noted that, with respect to the enhancement for discharging the firearm, it had imposed the absolute minimum, and, finally, that it had imposed “close” to the minimum sentence for aggravated battery with a firearm (i.e., 10 years in the 6- to 30-year range). ¶ 16 C. Appellate Proceedings ¶ 17 On direct appeal, defendant argued that the mandatory transfer of juveniles to adult court in cases involving first degree murder (705 ILCS 405/5-130 (West 2010)), the application to juveniles of mandatory firearm enhancements (see 730 ILCS 5/5-8-1(a)(1)(d) (West 2010)), the mandatory consecutive sentencing (see 730 ILCS 5/5-8-4(d)(1) (West 2010)), and the application of adult sentencing ranges and “truth in sentencing” provisions (730 ILCS 5/3-6- 3(a)(2)(i), (ii) (West 2010) (requiring that he serve 100% of the murder sentence)) did not permit consideration of his youthfulness at the time of the offense, and thus, his sentence was unconstitutional. We rejected his arguments. Luna, 2015 IL App (2d) 121216-U , ¶¶ 36-38. ¶ 18 Thereafter, the supreme court denied defendant’s petition for leave to appeal, but, as noted, it directed this court to vacate our prior decision and to consider the effect, if any, of Buffer on defendant’s sentence. Luna, No. 119310. We allowed the parties to submit supplemental briefing on the pertinent issue. ¶ 19 II. ANALYSIS ¶ 20 Preliminarily, we note again that, although defendant’s initial appeal raised multiple issues, we maintain our original holdings on all issues except the constitutionality of defendant’s sentence, which we reconsider here. See Luna, 2015 IL App (2d) 121216-U . ¶ 21 As detailed in our prior decision, the Supreme Court has issued a series of decisions that, collectively, reflect that mandatory life sentences for juvenile defendants violate the eighth amendment (U.S. Const., amend. VIII). See Miller, 567 U.S. at 479 (even for those convicted of homicide, the eighth amendment prohibits “a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders”); Graham v. Florida, 560 U.S. 48 , 74 (2010) (when imposed on juvenile offenders for crimes other than homicide, a life sentence without the possibility of parole violates the eighth amendment); Roper v. Simmons, 543 U.S. 551 , 568-73 (2005) (capital punishment for juvenile offenders violates the eighth amendment). 1 These decisions emphasize that juvenile offenders are inherently different from adult offenders and that minors have less moral culpability and greater rehabilitative potential than adult offenders. While not outright banning life sentences for juveniles convicted of homicide, the Court has held that a life sentence may not be mandated and that, before a life sentence may be imposed, the sentencing court must consider mitigating circumstances, such as the minor’s youth and its “attendant circumstances.” See Miller, 567 U.S. at 483, 489 . Miller also made clear that “appropriate occasions for sentencing juveniles to this harshest possible penalty will be uncommon.” Id. at 479 . 1 The eighth amendment and the proportionate penalties clause of the Illinois Constitution (Ill. Const. 1970, art. I, § 11) are generally read coextensively. See, e.g., People v. Patterson, 2014 IL 115102 , ¶ 101. -5- ¶ 22 The Illinois Supreme Court has also issued decisions that, collectively, reflect that (1) Miller applies to discretionary, as well as mandatory, life sentences (People v. Holman, 2017 IL 120655 , ¶ 40); (2) Miller applies to sentences that cannot be served in one lifetime and, thus, that have the same practical effect on a juvenile as a mandatory life sentence without parole (People v. Reyes, 2016 IL 119271 , ¶¶ 9-10); and (3) any sentence exceeding 40 years is a de facto life sentence requiring the sentencing court to consider, before imposition, youth and its attendant circumstances (Buffer, 2019 IL 122327 , ¶¶ 41-42). Thus, a juvenile defendant may be sentenced to natural life or a de facto life sentence; however, to comply with constitutional requirements, the sentencing court must first “determine[ ] that the defendant’s conduct showed irretrievable depravity, permanent incorrigibility, or irreparable corruption beyond the possibility of rehabilitation. The court may make that decision only after considering the defendant’s youth and its attendant characteristics. Those characteristics include, but are not limited to, the following factors: (1) the juvenile defendant’s chronological age at the time of the offense and any evidence of his particular immaturity, impetuosity, and failure to appreciate risks and consequences; (2) the juvenile defendant’s family and home environment; (3) the juvenile defendant’s degree of participation in the homicide and any evidence of familial or peer pressures that may have affected him; (4) the juvenile defendant’s incompetence, including his inability to deal with police officers or prosecutors and his incapacity to assist his own attorneys; and (5) the juvenile defendant’s prospects for rehabilitation.” (Emphasis added.) Holman, 2017 IL 120655 , ¶ 46 (citing Miller, 567 U.S. at 477-78 ). ¶ 23 Indeed, this State has now codified the Miller factors. Specifically, section 5-4.5-105(a) of the Unified Code of Corrections (Code) provides that, when a person under 18 years of age commits an offense, the trial court at the sentencing hearing shall consider the following factors in mitigation: (1) the person’s age, impetuosity, and level of maturity at the time of the offense, including the ability to consider risks and consequences of behavior, and the presence of cognitive or developmental disability, or both, if any; (2) whether the person was subjected to outside pressure, including peer pressure, familial pressure, or negative influences; (3) the person’s family, home environment, educational and social background, including any history of parental neglect, physical abuse, or other childhood trauma; (4) the person’s potential for rehabilitation or evidence of rehabilitation, or both; (5) the circumstances of the offense; (6) the person’s degree of participation and specific role in the offense, including the level of planning by the defendant before the offense; (7) whether the person was able to meaningfully participate in his or her defense; (8) the person’s prior juvenile or criminal history; and (9) any other information the court finds relevant and reliable, including an expression of remorse, if appropriate, although, if a defendant chooses not to make a statement on advice of counsel, a lack of an expression of remorse shall not be considered as an aggravating factor. 730 ILCS 5/5-4.5-105(a) (West 2016). ¶ 24 Here, defendant argues that, in light of the foregoing, his sentence constitutes an unconstitutional de facto life sentence, as the court was required to impose more than 40 years’ imprisonment without adequate consideration of his youth and its attendant circumstances. The State does not dispute that, per Buffer, defendant received a de facto life sentence. Indeed, we agree that the applicable sentencing scheme, at that time, mandated a minimum 51-year sentence. See 730 ILCS 5/5-4.5-20(a) (West 2010) (range of 20 to 60 years for first degree -6-  murder); 730 ILCS 5/5-8-1(a)(1)(d)(iii) (West 2010) (mandatory add-on of 25 years to natural life); 720 ILCS 5/12-4.2(b) (West 2010) (aggravated battery with a firearm is a Class X felony); 730 ILCS 5/5-4.5-25(a) (West 2010) (range for a Class X felony is 6 to 30 years); 730 ILCS 5/5-8-4(d)(1) (West 2010) (providing for mandatory consecutive sentences). Moreover, defendant received a 61-year sentence, most of which must be served 100% (730 ILCS 5/3-6- 3(a)(2)(i)-(ii) (West 2010)). As such, defendant received a de facto life sentence. ¶ 25 The State nevertheless disagrees that defendant’s life sentence violates the eighth amendment. It contends that the trial court imposed the sentence only after considering defendant’s youth and its attendant circumstances. Specifically, the State notes that defense counsel repeatedly emphasized defendant’s youth and the Miller decision, both at sentencing and when moving the court to reconsider the sentence. The State argues that the court had before it voluminous information (through the presentence report, argument, letters, and the record itself) that allowed it to adequately consider all of the relevant factors attendant to defendant’s youth. In sum, the State contends that the evidence spoke to the circumstances of the offense and to defendant’s youth and immaturity, outside negative influences, home environment, lack of rehabilitation, role in the offense, ability to participate in his defense, and prior juvenile history. As this information was before the court, the State concludes that the court properly considered it prior to sentencing and that, thus, defendant’s sentence is not unconstitutional. ¶ 26 We agree that defendant’s youth was considered at sentencing. The court expressly gave “great weight” to defendant’s youth and was “deeply swayed” by defendant’s “tender age.” It also commented that it had considered his broken family life and the impact on him from street- gang influences. It made findings suggesting that defendant’s juvenile record—which primarily concerned burglary, theft, and revocations of probation—did not bode well for his rehabilitative capacity, as he had not yet reformed his conduct, despite attempts at intervention. The court had evidence before it, such as psychological evaluations and caseworker comments in the presentence report, that defendant was at risk for adult antisocial personality disorder and likely needed long-term residential treatment. ¶ 27 Nevertheless, the admission of evidence and argument related to the Miller factors does not necessarily mean that those factors were adequately considered or evaluated to determine whether defendant was the rare juvenile simply beyond the possibility of rehabilitation. See, e.g., People v. Reyes, 2020 IL App (2d) 180237 , ¶ 31. While this is perhaps a close case, given the legal developments since defendant was sentenced, we find it prudent to err on the side of concluding that defendant’s sentence violates the eighth amendment and that he is entitled to a new sentencing hearing. ¶ 28 First, we infer from the court’s comments that it believed that it had limited, if any, room for discretion in fashioning defendant’s sentence. The court discussed with defense counsel that the statutory minimums at the time did not give it authority to impose upon defendant less than the minimum required by Illinois law, a minimum that now would be considered a de facto life sentence. The court noted that it imposed upon defendant terms on the lower end of the scale for the underlying crimes, as well as the minimum statutory firearm enhancement, but, again, the court understood that it was bound to apply the enhancement. Critically to this case, however, the sentencing scheme for juveniles in this State has changed to now afford sentencing courts discretion to apply that enhancement. See 730 ILCS 5/5-4.5-105(b), (c) (West 2018). -7- ¶ 29 Second, the court commented that it could not consider defendant as a child for purposes of sentencing. However, the framework for sentencing juvenile defendants to life imprisonment has since evolved. Further, considering a defendant’s youth generally is a far cry from finding that a defendant is the rare juvenile who committed conduct showing irreparable corruption beyond the possibility of rehabilitation. See, e.g., Buffer, 2019 IL 122327 , ¶ 41; Holman, 2017 IL 120655 , ¶¶ 45-46. The State disagrees, noting that the court here considered that defendant did not appear to take advantage of the efforts previously taken to rehabilitate him and that he had a delinquent history unlike many others. However, all juveniles who are theoretically eligible for life sentences will have committed horrific crimes, and we do not think it unreasonable to speculate that many such juveniles will possess delinquency histories or have failed attempts at intervention. The current case law, however, instructs that not all of those juveniles eligible for life sentences should receive them; rather, a life sentence for a juvenile is appropriate only where that defendant is the “rare juvenile offender” whose crime reflects “irretrievable depravity, permanent incorrigibility, or irreparable corruption beyond the possibility of rehabilitation.” (Emphases added.) Holman, 2017 IL 120655 ; Montgomery v. Louisiana, 577 U.S. at ___, ___, 136 S. Ct. 718 , 734 (2016). Indeed, the Court has clarified that it is not sufficient for a sentencing judge to merely “consider the juvenile’s youth”; rather, the penological justifications for a life sentence without parole entirely collapse for the juvenile offender, unless that offender is the “rare” child whose crime reflects more than “unfortunate yet transient immaturity.” (Internal quotation marks omitted.) Montgomery, 577 U.S. at ___, 136 S. Ct. at 734. While express findings of incorrigibility are not required (id. at ___, 136 S. Ct. at 735), sentencing courts must still “determine” and somehow express, after considering the defendant’s youth and the enumerated attendant circumstances, that “the defendant’s conduct showed irretrievable depravity, permanent incorrigibility, or irreparable corruption beyond the possibility of rehabilitation.” Holman, 2017 IL 120655 , ¶ 46. In our view, the court did not make those findings here. ¶ 30 Indeed, we note that there were, arguably, glimmers of hope in defendant’s presentence report. He received good grades, he was an enthusiastic participant in group activities, he related to his peers, and he had strong family relationships. The crimes at issue, while horrible and senseless, were consistent with impulsive and immature behavior. The court was able to consider many factors, but it was simply unable to consider defendant’s youth and the attendant circumstances under the framework that has since developed in case law, and did not possess the discretion to impose less than a mandatory de facto life sentence. ¶ 31 In sum, courts look to evolving standards of decency that mark the progress of a maturing society. See Buffer, 2019 IL 122327 , ¶ 16. We are reminded that “children cannot be viewed simply as miniature adults.” J.D.B. v. North Carolina, 564 U.S. 261 , 274 (2011). Certainly, the framework for sentencing juveniles has markedly evolved since defendant’s sentence was imposed here. The court considered some pertinent evidence at sentencing, but it neither had the benefit of the scope of analysis that has since been conducted concerning juvenile culpability, nor had at its disposal the current modifications to sentencing parameters. Miller had been issued only a few months prior to defendant’s sentencing, and Reyes, which held that Miller applied to juveniles receiving de facto life sentences, was not decided until four years later. Further, and as previously discussed, our state’s codification of the Miller factors, the elimination of “mandatory” enhancements for juveniles, and Buffer were all issued after defendant was sentenced. Accordingly, we conclude that defendant is entitled to a new -8-  sentencing hearing under the scheme prescribed by section 5-4.5-105 of the Code. Buffer, 2019 IL 122327 , ¶ 47; see also Reyes, 2016 IL 119271 , ¶ 12. We note that the sentencing judge must not simply claim to have followed the Miller factors; the judge must use those factors to evaluate evidence at the new sentencing hearing to determine whether defendant is “among the rarest of juvenile offenders whose conduct places him [or her] beyond the possibility of rehabilitation.” See, e.g., Reyes, 2020 IL App (2d) 180237 , ¶¶ 31-32. We express no view about the sentence that defendant should ultimately receive; however, “[o]n remand, the trial court could once again impose a de facto life sentence only if it determines that the defendant is beyond rehabilitation.” (Emphasis omitted.) Id. ¶ 32 . ¶ 32 In sum, we affirm defendant’s conviction, vacate his sentence, and remand for resentencing in accordance with this decision. ¶ 33 III. CONCLUSION ¶ 34 For the forgoing reasons, the judgment of the circuit court of Lake County is affirmed in part and vacated in part. The cause is remanded for resentencing. ¶ 35 Affirmed in part and vacated in part. ¶ 36 Cause remanded. -9-

2020-12-03 23:03:28.068239+00

http://www.illinoiscourts.gov/Opinions/AppellateCourt/2020/3rdDistrict/3170705.pdf

Digitally signed by Reporter of Decisions Reason: I attest to Illinois Official Reports the accuracy and integrity of this document Appellate Court Date: 2020.12.03 10:52:26 -06'00' People v. Bland, 2020 IL App (3d) 170705 Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. Caption KEITH BLAND, Defendant-Appellant. District & No. Third District No. 3-17-0705 Filed September 21, 2020 Decision Under Appeal from the Circuit Court of Will County, No. 01-CF-86; the Review Hon. Carmen J. Goodman, Judge, presiding. Judgment Reversed and remanded. Counsel on James E. Chadd, Patricia Mysza, and Lauren A. Bauser, of State Appeal Appellate Defender’s Office, of Chicago, for appellant. James W. Glasgow, State’s Attorney, of Joliet (Patrick Delfino, Thomas D. Arado, and Stephanie L. Raymond, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People. Panel JUSTICE O’BRIEN delivered the judgment of the court, with opinion. Justices Carter and Wright concurred in the judgment and opinion.  OPINION ¶1 The defendant, Keith Bland, appealed the denial of his motion for leave to file a successive petition for postconviction relief. ¶2 I. BACKGROUND ¶3 The defendant was convicted of armed robbery and first degree murder after a jury trial. He was sentenced to consecutive terms of imprisonment of 28 years and 43 years, respectively. His conviction and sentence were affirmed on direct appeal. People v. Bland, No. 3-02-0942 (2004) (unpublished order under Illinois Supreme Court Rule 23). The facts underlying the defendant’s convictions are more fully detailed in that order, but essentially, the defendant and his two codefendants planned to steal guns from the home of the defendant’s father. While committing the robbery, one of the codefendants shot and killed the defendant’s stepmother. ¶4 The defendant filed a pro se petition for postconviction relief, which was dismissed by the trial court as frivolous and patently without merit. The defendant filed an additional affidavit to support his petition, which the trial court considered as a second postconviction petition, also finding it to be frivolous and patently without merit. The defendant appealed both rulings, and this court affirmed. People v. Bland, No. 3-05-0089 (2006) (unpublished order under Illinois Supreme Court Rule 23). ¶5 In 2007, the defendant filed a motion for leave to file a successive postconviction petition, alleging that his postconviction appellate counsel was ineffective for failing to argue several issues in the appeal from the trial court’s denial of his initial postconviction petition. The trial court denied the motion, and this court affirmed. People v. Bland, No. 3-07-0554 (2008) (unpublished order under Illinois Supreme Court Rule 23). ¶6 On July 24, 2017, the defendant filed the instant pro se motion for leave to file a successive postconviction petition, arguing that his 71-year sentence, a de facto life sentence, was unconstitutional as applied to him. The defendant was 19 years old at the time of the murder. The trial court denied the motion, and the defendant appealed. ¶7 II. ANALYSIS ¶8 The defendant argues that the trial court erred in denying him leave to file because Illinois courts only recently recognized that the sentencing principles of Miller v. Alabama, 567 U.S. 460 (2012), applied retroactively to de facto life sentences and potentially applied to those over 18. The State contends that the trial court’s denial of leave was correct because the defendant did not satisfy the cause-and-prejudice test in raising his as-applied challenge, since he was almost 20 years old when the crime was committed. The State also argues that the defendant forfeited the issue because the defendant could have raised the issue on direct appeal. ¶9 Under section 122-1(f) of the Post-Conviction Hearing Act (725 ILCS 5/122-1(f) (West 2016)), a defendant must obtain leave of the trial court before he may obtain review of a second or subsequent postconviction petition on its merits. People v. McDonald, 405 Ill. App. 3d 131 , 135 (2010). To obtain leave to file a successive petition, as a threshold requirement, the defendant must satisfy the cause-and-prejudice test. Id. Under the cause-and-prejudice test, the defendant must demonstrate “cause” for failing to raise the error in prior proceedings and actual “prejudice” resulting from the claimed error. Id. “Cause” has been defined as an -2-  objective factor that impeded defense counsel’s efforts to raise the claim in an earlier proceeding. “Prejudice” has been defined as an error that so infected the entire trial that the defendant’s conviction violates due process. Id. The cause-and-prejudice test for successive postconviction petitions involves a higher standard than the frivolous or patently without merit standard applied to first stage postconviction petitions. People v. Smith, 2014 IL 115946 , ¶ 35. A defendant seeking leave to file a successive petition must submit enough in the way of pleadings and documentation to allow a circuit court to make an independent determination on the legal question of whether adequate facts have been alleged for a prima facie showing of cause and prejudice. Id. ¶ 30. If a defendant fails to adequately allege cause and prejudice, the circuit court does not reach the merits of his successive petition because the cause-and-prejudice test is a procedural prerequisite to obtaining that review. People v. Handy, 2019 IL App (1st) 170213 , ¶ 29. We review de novo the denial of leave to file a successive postconviction petition. People v. Bailey, 2017 IL 121450 , ¶ 13. ¶ 10 In terms of cause to bring an action under Miller, the defendant was convicted in 2002, 10 years prior to the decision in Miller. The State acknowledges this but argues that the defendant has not shown cause why he waited five years after Miller to raise the claim. As our supreme court has noted, Miller created a substantive constitutional rule that applies retroactively. People v. Buffer, 2019 IL 122327 , ¶ 22. In addition, the suggestion that Miller could be applied to those 18 years of age and older was not made until 2015 in People v. Thompson, 2015 IL 118151 , and Miller was not extended to de facto life sentences until 2016 in People v. Reyes, 2016 IL 119271 . Thus, we find that the defendant has shown cause to file his 2017 petition for leave to file a successive postconviction petition. ¶ 11 The State contends that the defendant cannot establish prejudice because (1) he was 19 years old and thus not a juvenile, when he committed the crime and (2) the trial court considered the statutory factors in aggravation and mitigation, including rehabilitation, in sentencing the defendant. ¶ 12 The eighth amendment to the United States Constitution guarantees individuals the right not to be subjected to excessive sanctions. U.S. Const., amend. VIII; Miller, 567 U.S. at 469 . Like the eighth amendment, the proportionate penalties clause of the Illinois Constitution embodies concepts of fairness and proportionality, but it has been interpreted to provide broader protections than the eighth amendment. Ill. Const. 1970, art. I, § 11; People v. Carrasquillo, 2020 IL App (1st) 180534 , ¶ 89. That clause states that “[a]ll penalties shall be determined both according to the seriousness of the offense and with the objective of restoring the offender to useful citizenship.” Ill. Const. 1970, art. I, § 11. ¶ 13 The defendant claims an as-applied challenge under Miller, contending that his 71-year sentence violates both the eighth amendment to the United States Constitution and the proportionate penalties clause of the Illinois Constitution. An as-applied challenge requires a showing that the statute violates the constitution as it applies to the facts and circumstances of the challenging party, while a facial challenge requires a showing that the statute is unconstitutional under any set of facts. Thompson, 2015 IL 118151 , ¶ 36. Our supreme court, in People v. Harris, 2018 IL 121932 , ¶ 61, has foreclosed an eighth amendment facial challenge to offenders 18 years of age and over. However, the court in Harris found that an as-applied challenge under the proportionate penalties clause was premature on direct appeal in that case, and it suggested that an as-applied challenge under Miller had not been foreclosed. Id. ¶ 53. -3- ¶ 14 Since an as-applied challenge is fact specific, it is necessary for the record to be sufficiently developed. Id. ¶ 39. In his petition for leave to file, the defendant alleged that he was only 19 years old at the time of the crime, he was found guilty under a theory of accountability, and he had been diagnosed with an antisocial personality disorder that exhibited symptoms similar to characteristics of juveniles. The defendant also referenced the juvenile studies cited in People v. House, 2015 IL App (1st) 110580 , ¶ 95 (vacated for reconsideration in light of Harris, 2018 IL 121932 ) and on remand in People v. House, 2019 IL App (1st) 110580-B , ¶ 55, appeal allowed, No. 125124 (Ill. Jan. 29, 2020). We find that the defendant pled enough facts to warrant further proceedings on his claim that the tenets of Miller apply to him. See People v. Johnson, 2020 IL App (1st) 171362 (19-year-old defendant’s motion to file successive postconviction petition alleged sufficient facts for an as-applied challenge to survive dismissal). There is nothing in the record that indicates that the trial court considered the defendant’s youth and its attendant characteristics as recognized in Miller. The trial court is the most appropriate tribunal for the type of factual development necessary for the defendant’s as-applied constitutional challenge. Thompson, 2015 IL 118151 , ¶ 38; see People v. Minniefield, 2020 IL App (1st) 170541 , ¶ 47. Thus, we grant the defendant’s motion for leave to file his successive postconviction petition and remand for further proceedings consistent with this opinion. ¶ 15 III. CONCLUSION ¶ 16 The judgment of the circuit court of Will County is reversed and remanded for further proceedings. ¶ 17 Reversed and remanded. -4-

2020-12-03 23:03:29.874185+00

http://www.illinoiscourts.gov/Opinions/AppellateCourt/2020/3rdDistrict/3180391.pdf

Digitally signed by Reporter of Decisions Reason: I attest Illinois Official Reports to the accuracy and integrity of this document Appellate Court Date: 2020.12.03 11:23:23 -06'00' Owens v. Riverside Medical Center, 2020 IL App (3d) 180391 Appellate Court TERRANCE OWENS, Plaintiff-Appellant, v. RIVERSIDE Caption MEDICAL CENTER and UNKNOWN DOCTOR, n/k/a/ Dr. Usman Mustafa, Defendants (Riverside Medical Center, Defendant- Appellee). District & No. Third District No. 3-18-0391 Filed September 21, 2020 Decision Under Appeal from the Circuit Court of Kankakee County, No. 17-L-98; the Review Hon. Adrienne W. Albrecht, Judge, presiding. Judgment Order vacated; cause remanded. Counsel on John P. Ridge, of Kankakee, for appellant. Appeal Matthew A. Arnold, of Hughes, Socol, Pier, Resnick & Dym, Ltd., of Chicago, for appellee. Panel JUSTICE CARTER delivered the judgment of the court, with opinion. Justices McDade and Wright concurred in the judgment and opinion.  OPINION ¶1 This appeal arises from the dismissal of a medical malpractice complaint filed by plaintiff, Terrance Owens, against defendants, Riverside Medical Center and Dr. Usman Mustafa. On appeal, plaintiff argues the trial court erred in granting Riverside Medical Center’s motion to dismiss based on plaintiff’s failure to comply with section 2-622 of the Code of Civil Procedure (Code) (735 ILCS 5/2-622 (West 2016)). Riverside Medical Center argues the trial court did not err in dismissing the complaint with prejudice. We vacate the trial court’s order dismissing plaintiff’s complaint with prejudice and remand for further proceedings. ¶2 I. BACKGROUND ¶3 On September 11, 2017, plaintiff, by way of his attorney, filed a medical malpractice claim against defendants, Riverside Medical Center and a doctor, who was later identified as Mustafa. The allegations in the complaint pertained to alleged negligent medical treatment that plaintiff received on August 31, 2015. Plaintiff’s attorney attached an affidavit to his complaint, filed pursuant to section 2-622 of the Code, stating that he was unable to consult with a health professional prior to the expiration of the statute of limitations and that he would file the affidavit required under section 2-622 of the Code within 90 days. ¶4 On December 27, 2017, the circuit clerk issued a summons to be served on Riverside Medical Center and a summons to be served on Mustafa. The record does not contain proof that either defendant was served. On January 16, 2018, attorney Matthew Arnold entered his appearance in this case on behalf of Riverside Medical Center. ¶5 A. Motion to Dismiss ¶6 On February 1, 2018, Riverside Medical Center filed a motion to dismiss, arguing that plaintiff failed to file an affidavit of merit and health professional’s report for medical malpractice actions as required by section 2-622 of the Code. Plaintiff’s attorney did not file a written response to the motion to dismiss, nor did he file a formal written request for an extension of time to file the section 2-622 documents. ¶7 On March 20, 2018, a hearing on defendant’s motion to dismiss took place. At the outset of the hearing, the trial court stated, “I’m dismissing your complaint.” Plaintiff’s attorney informed the trial court that he had problems identifying the defendant doctor and had personally experienced “some very substantial medical problems” since the filing of the complaint, which resulted in him having trouble working. Plaintiff’s attorney asked for the trial court not to dismiss the complaint because plaintiff “would be outside the statute of limitations” upon refiling. ¶8 The trial court stated, “I just don’t know that I can do anything about it.” The trial court then reiterated, “I just don’t believe I can do anything about it” and stated, “[t]his is not a discretionary matter.” ¶9 Plaintiff’s attorney argued that the trial court had discretion under the statute regarding extending the time for filing of the section 2-622 affidavit of merit and medical professional’s report. Plaintiff’s attorney stated: -2-  “[I]f we could refile it, I—I would agree with your dismissal. But we can’t refile it. My statute [of limitations] has run. And I—I don’t think—I don’t think it’s interpreted the way you’re interpreting it. *** *** So, I would ask you not to dismiss the case because it’s the end of the case if you do. It’s that substantial. I mean, it’s an extreme hardship on—on my client, on me. And basically if you think about it, there’s absolutely no—where’s the prejudice to Riverside Hospital or to this doctor? They don’t’ have to answer it. They don’t have to do anything for—for 30 days until after they get served, and that’s—that’s really what the statute says. So I would—I would certainly ask you to consider that, [Y]our Honor.” ¶ 10 Defendant’s attorney argued that plaintiff’s counsel had not filed a motion to extend time to comply with section 2-622 of the Code, so the trial court had no discretion to do anything other than dismiss the complaint. The trial court stated: “I agree. I don’t have discretion. *** I am sympathetic to your client’s position. I just don’t have discretion. You have to have a 2-622. And—and sometimes there are ways of doing these things. There are way of extending these things. This is a very difficult area of the law that requires that you—I mean, this [statute] is intended to be a gatekeeping mechanism ***. And it’s very clear, I don’t have any discretion. I’m going to allow the motion to dismiss.” ¶ 11 The trial court entered a written order granting defendant’s motion to dismiss with prejudice. ¶ 12 B. Motion to Reconsider ¶ 13 On April 9, 2018, plaintiff filed a motion to reconsider. In the motion, plaintiff requested that the trial court reconsider and vacate its order dismissing the complaint with prejudice and allow plaintiff time to submit a section 2-622 affidavit and report. At the hearing on May 31, 2018, plaintiff’s attorney requested that the trial court reconsider its ruling that section 2-622 mandated a dismissal in this case where (1) there had been “good cause” for the delay in filing the section 2-622 affidavit and (2) the trial court had erred in believing that it had no discretion regarding entering the dismissal. Plaintiff’s attorney further argued that the purpose of section 2-622 was to impose a pleading requirement to reduce frivolous lawsuits and could not be used as a substantive defense to bar a meritorious claim. ¶ 14 The trial court indicated that it understood “all those things” but “there [were] mechanisms that can be employed and that should be employed.” The trial court asked if plaintiff’s attorney had obtained an expert’s opinion. Plaintiff’s attorney indicated that he “stopped” after the case had been dismissed. Plaintiff’s attorney indicated that he had “wanted some time” from the trial court, the trial court “wouldn’t give” him more time, and today he was asking for more time. Plaintiff’s attorney argued that the trial court had erred in believing that it did not have discretion to allow plaintiff additional time to comply with section 2-622 of the Code and requested “30 days, 45 days.” ¶ 15 The trial court noted that the docket entries for the case indicated that the complaint was filed on September 11, 2017, at which time plaintiff’s attorney requested 90 days to file a -3-  section 2-622 affidavit. The trial court indicated plaintiff’s attorney never requested additional time, which he could have done if he required more time to file the affidavit. The trial court also noted that, to date, plaintiff’s attorney had not attempted to hire a medical expert. The trial court again indicated that plaintiff’s counsel could have requested additional time, but he did not do so. The trial court concluded that it could not allow the case to proceed because there had been “no movement toward acquiring a 2-622 expert after the case has been pending since September 11 of 2017.” The trial court denied plaintiff’s motion to reconsider. ¶ 16 Plaintiff appealed. ¶ 17 II. ANALYSIS ¶ 18 On appeal, plaintiff argues that the trial court misinterpreted section 2-622 of the Code by concluding it lacked discretion under the statute when determining whether to grant defendant’s motion to dismiss the complaint with prejudice. Defendant argues that the trial court properly interpreted section 2-622 and did not err in dismissing the complaint with prejudice. ¶ 19 Under section 2-622(a)(1), the plaintiff’s attorney, or the plaintiff if proceeding pro se, must attach to a medical malpractice complaint an affidavit stating that he or she has consulted with a health professional who has opined there is reasonable and meritorious cause for filing the action. Id. § 2-622(a)(1). The health professional’s written report, indicating the grounds for that determination, must also be attached to the complaint. Id. The legislature enacted section 2-622 of the Code in 1985 as part of medical malpractice reform legislation “in response to what was perceived to be a crisis in the area of medical malpractice,” in order to discourage frivolous medical malpractice suits and eliminate frivolous suits before the expenses of litigation mounted. DeLuna v. St. Elizabeth’s Hospital, 147 Ill. 2d 57 , 65 (1992). ¶ 20 More specifically, section 2-622(a) of the Code provides that in a medical, hospital, or other healing art malpractice action, the plaintiff’s attorney (or the plaintiff, if proceeding pro se) “shall file an affidavit, attached to the original and all copies of the compliant,” declaring one of the following: “1. That the affiant has consulted and reviewed the facts of the case with a health professional ***; that the reviewing health professional has determined in a written report, after a review of the medical record and other relevant material involved in the particular action that there is a reasonable and meritorious cause for the filing of such action; and that the affiant has concluded on the basis of the reviewing health professional’s review and consultation that there is a reasonable and meritorious cause for filing of such action. *** A copy of the written report *** must be attached to the affidavit ***. 2. That the affiant was unable to obtain a consultation required by paragraph 1 because a statute of limitations would impair the action and the consultation required could not be obtained before the expiration of the statute of limitations. If an affidavit is executed pursuant to this paragraph, the certificate and written report required by paragraph 1 shall be filed within 90 days after the filing of the complaint. The defendant shall be excused from answering or otherwise pleading until 30 days after being served with a certificate required by paragraph 1. -4-  3. That a request has been made by the plaintiff or his attorney for examination and copying of records pursuant to Part 20 of Article VIII of this Code [see 735 ILCS 5/8-2001 (West 2016) (providing a health care facility must produce a copy of a patient’s medical records no later than 60 days after a request by the patient)] and the party required to comply *** failed to produce such records within 60 days of the receipt of the request. If an affidavit is executed pursuant to this paragraph, the certificate and written report required by paragraph 1 shall be filed within 90 days following receipt of the requested records. All defendants except those whose failure to comply with Part 20 of Article VIII of th[e] Code is the basis for an affidavit under this paragraph shall be excused from answering or otherwise pleading until 30 days after being served with the certificate required by paragraph 1.” 735 ILCS 5/2-622(a) (West 2016). ¶ 21 Section 2-622(g) of the Code provides, “[t]he failure to file a certificate required by this Section shall be grounds for dismissal under Section 2-619.” Id. § 2-622(g). Section 2-619 of the Code provides for the involuntary dismissal of a cause of action based on certain defects or defenses. Id. § 2-619. Generally, we review de novo a dismissal of complaint pursuant to section 2-619 of the Code. Lee v. Berkshire Nursing & Rehab Center, LLC, 2018 IL App (1st) 171344 , ¶ 12. ¶ 22 In this case, plaintiff’s attorney filed an affidavit in accordance with section 2-622(a)(2) of the Code, indicating that the suit was being commenced without the required section 2-622 affidavit and report and that the required documents would be filed within 90 days. See 735 ILCS 5/2-622(a)(2) (West 2016). Plaintiff, however, did not file the required section 2-622 affidavit and report within 90 days of filing the complaint. Thus, plaintiff failed to comply with the requirements for filing a medical malpractice action set forth in section 2-622 of the Code, which was grounds for a dismissal of the complaint. See id. § 2-622(g). ¶ 23 However, a plaintiff’s failure to comply with section 2-622 does not require that the dismissal of the complaint be entered with prejudice. McCastle v. Mitchell B. Sheinkop, M.D., Ltd., 121 Ill. 2d 188 , 192 (1987) (“the legislative history of section 2-622 reveals that the legislature did not intend to require dismissal with prejudice”). In enacting section 2-622, the legislature intended that the trial court have discretion to grant leave to file an amended complaint where the plaintiff seeks to amend the affidavits or where plaintiff initially neglects to file the affidavits. Id. at 193 . Requiring that a dismissal based on a plaintiff’s failure to comply with section 2-622 be entered with prejudice would place form over substance and elevate “a pleading requirement” designed to reduce frivolous lawsuits into a substantive defense that would forever bar a plaintiff’s claim. Id. It is within the sound discretion of the trial court to determine whether to grant leave to plaintiff to amend the pleadings to add the requisite section 2-622 documents. Id. at 194 ; McAlister v. Schick, 147 Ill. 2d 84 , 89 (1992) (“a court has discretion to dismiss a case governed by section 2-622 with or without prejudice”). ¶ 24 In McCastle, the Illinois Supreme Court determined that the trial court abused its discretion because it erroneously believed it had no discretion in determining whether to dismiss a complaint with prejudice where the plaintiff’s attorney failed to attach an affidavit of merit and a health professional’s report, as required by section 2-622 of the Code. McCastle, 121 Ill. 2d 188 . Because the record in McCastle showed that the trial court acted “under the misapprehension that it did not have discretion” and dismissed the complaint with prejudice, -5-  the Illinois Supreme Court vacated the dismissal order and remanded for further consideration. Id. at 194 . ¶ 25 Here, the record indicates that at the outset of the hearing on the motion to dismiss, the trial court stated, “I’m dismissing your complaint.” Thus, the record shows the trial court intended to enter an order dismissing the complaint with prejudice from the outset of the motion hearing. After plaintiff’s attorney argued there had been good cause for his noncompliance with section 2-622, the trial court repeatedly indicated that it did not believe it could do anything about it. The trial court also stated “this is not a discretionary matter” and it had no discretion because plaintiff “ha[d] to have a 2-622.” ¶ 26 At the hearing on plaintiff’s motion to reconsider, the trial court indicated it did not have discretion in relation to the entry of the dismissal with prejudice because plaintiff’s counsel failed to properly request an extension of time. However, at the hearing on defendant’s motion to dismiss, plaintiff’s attorney had requested that the complaint not be dismissed, arguing there had been “good cause” for his failure to comply with section 2-622. See Fox v. Gauto, 2013 IL App (5th) 110327 , ¶ 25 (“[c]ourts have applied the ‘good cause’ standard in situations when a plaintiff has not filed the required [section 2-622] affidavit and report within 90 days after the complaint was filed and the plaintiff sought to extend the time for filing the report and affidavit for some period of time after the initial 90-day period”); Simpson v. Illinois Health Care Services, Inc., 225 Ill. App. 3d 685 , 690 (1992) (if a plaintiff fails to comply with section 2-622 of the Code within the statutory period, the trial court may provide an extension of time if the plaintiff can show good cause for failing to file the documents during the statutory period). The arguments made by plaintiff’s attorney at the motion to dismiss hearing were indicative of a desire for an extension of time to comply with the requirements of section 2-622 of the Code. See McCastle, 121 Ill. 2d at 193-94 (plaintiff’s statement to the trial court at the motion to dismiss hearing that the section 2-622 affidavits “ ‘could be filed and then made available to the court’ ” expressed a “desire that he be given leave to file an amended complaint”). ¶ 27 Here, the trial court had discretion to dismiss the complaint without prejudice and grant plaintiff leave to amend his complaint with regard to the section 2-622 affidavit, leaving the suit pending for further proceedings. See id.; see also Richter v. Prairie Farms Diary, Inc., 2016 IL 119518 , ¶¶ 25, 35 (a dismissal order that grants a plaintiff leave to amend is a dismissal without prejudice and is not a final order); Smith v. Central Illinois Regional Airport, 207 Ill. 2d 578 , 587-89 (2003) (an order dismissing a count without prejudice and giving the plaintiff 60 days to file an amendment was not a final order and left the suit pending for further proceedings, allowing the plaintiff the opportunity to amend, stand on his complaint and seek a dismissal with prejudice, or seek a voluntarily dismissal). Because the record indicates the trial court acted under the misapprehension that it did not have “any discretion,” we vacate the trial court’s order dismissing the case with prejudice and remand this cause for the trial court to exercise its discretion. ¶ 28 III. CONCLUSION ¶ 29 For the foregoing reasons, the judgment of the circuit court of Kankakee County is vacated, and this cause is remanded for further proceedings. ¶ 30 Order vacated; cause remanded. -6-

2020-11-20 19:16:38.862283+00

DOROTHY T. BOGLE, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent Bogle v. Commissioner Docket No. 1665-80. United States Tax Court T.C. Memo 1983-587; 1983 Tax Ct. Memo LEXIS 206; 46 T.C.M. (CCH) 1487; T.C.M. (RIA) 83587; September 22, 1983. *206 P made a gift of stock on condition that the donees pay the gift tax liability on the transfer. The donees paid the gift tax liability, which exceeded P's adjusted basis in the stock. Held, P realized gain measured by the excess of the gift tax liability over her adjusted basis in the stock. Diedrich v. Commissioner,457 U.S. 191">457 U.S. 191 (1982), followed. Joel S. Marcus, for the petitioner. Dennis Brager and Michael R. Morris, for the respondent. SIMPSON MEMORANDUM OPINION SIMPSON, Judge: This matter is before us on the Commissioner's motion for summary judgment.A hearing was held on the motion, at which the petitioner did not appear. The Commissioner determined a deficiency of $298,650.94 in the petitioner's Federal income tax for 1976. The sole issue for decision is whether the petitioner, who made a gift of stock on condition that the donees pay the resulting gift taxes, realized gain to the extent that the gift taxes paid by the donees exceeded the petitioner's adjusted basis in the stock. The facts are not in dispute. The petitioner, Dorothy T. Bogle, was a resident of Roswell, N. Mex., at the time she filed her petition*207 in this case. She filed her Federal income tax return for 1976 with the Internal Revenue Service, Albuquerque, N. Mex. In 1976, the petitioner gave to her son and his wife (the Holesapples) the following shares of stock on the condition that the Holesapples pay the gift tax liability resulting from the transfer: Number of Name of CorporationShares Bogle Farms, Inc.83,300 X Bar Ranch, Inc.166 Big Oak Farms, Inc.83 Mt. Level Farms Co.214 The petitioner's aggregate adjusted basis in the shares at the time of the gift was $187,866.00. On or before November 15, 1976, she filed a Federal gift tax return showing a gift tax due as a result of the stock transfer in the amount of $954,383.77. The Holesapples paid the gift tax with their own money. The Commissioner determined that the petitioner realized a gain of $766,517.77, which amount represented the excess of the gift tax liability paid by the donees over the petitioner's adjusted basis in the stock. In , affg. , revg. a Memorandum Opinion of this Court, the Supreme Court held that "a donor*208 who makes a gift of property on condition that the donee pay the resulting gift taxes realizes taxable income to the extent that the gift taxes paid by the donee exceed the donor's adjusted basis in the property." . The Supreme Court's holding in Diedrich is dispositive of the issue in this case. Accordingly, we will grant the Commissioner's motion for summary judgment. An appropriate order will be issued and decision will be entered for the respondent.

2020-12-03 23:03:28.935712+00

http://www.illinoiscourts.gov/Opinions/AppellateCourt/2020/3rdDistrict/3190384.pdf

Digitally signed by Reporter of Decisions Reason: I attest to Illinois Official Reports the accuracy and integrity of this document Appellate Court Date: 2020.12.03 11:31:52 -06'00' Pence v. Illinois Human Rights Comm’n, 2020 IL App (3d) 190384 Appellate Court JESSICA PENCE, Petitioner, v. THE ILLINOIS HUMAN RIGHTS Caption COMMISSION, THE DEPARTMENT OF HUMAN RIGHTS, and OSF ST. FRANCIS MEDICAL CENTER, Respondents. District & No. Third District No. 3-19-0384 Filed May 7, 2020 Decision Under Petition for review of order of Illinois Human Rights Commission, Review No. 2016-SA-1117. Judgment Affirmed. Counsel on William W.P. Atkins, of Johnson, Bunce & Noble, P.C., Peoria, for Appeal petitioner. Kwame Raoul, Attorney General, of Chicago (Jane Elinor Notz, Solicitor General, and Carson R. Griffis, Assistant Attorney General, of counsel), for respondents Illinois Human Rights Commission and Illinois Department of Human Rights. No brief filed for other respondent.  Panel PRESIDING JUSTICE LYTTON delivered the judgment of the court, with opinion. Justices O’Brien and Wright concurred in the judgment and opinion. OPINION ¶1 Petitioner Jessica Pence appeals the decision of the Illinois Human Rights Commission (Commission), sustaining the Department of Human Rights’ (Department) dismissal of her charge of employment discrimination and failure to accommodate against her employer, respondent OSF St. Francis Medical Center (OSF). On appeal, Pence claims that the decision should be reversed and the charge remanded for further investigation because (1) the Department relied on documents that were not included in Pence’s personnel file, as required by the Personnel Record Review Act (820 ILCS 40/4 (West 2018)), and (2) the Commission based its decision to sustain on credibility determinations in violation of her due process rights. We confirm the Commission’s order. ¶2 I. BACKGROUND ¶3 Under OSF’s “Code of Conduct” policy, employees are required to “demonstrate courtesy, dignity and respect” in their professional interactions and refrain from intimidating, hostile, or harassing behavior. Employees who violate these policies may be disciplined in stages, or levels. Employees disciplined at Levels I and II are informed of the violation and reminded to follow the Code of Conduct; at Level III, the employee is placed on “decision-making leave”; and at Level IV, the employee is discharged. ¶4 In August 2007, OSF hired Pence as an executive assistant. As part of her duties, Pence maintained employee payroll, time sheets, and attendance records. Between 2007 and 2013, Pence received satisfactory evaluations. In 2013, Pence received a Level I discipline. After receiving a series of progressive disciplines, Pence received a Level IV discipline and was discharged on August 5, 2015. At that time, Pence was 59 years old and suffered from hearing loss in one ear. OSF hired a 50-year-old female with no disability to replace Pence. ¶5 In November 2015, Pence filed a discrimination charge with the Department under the Illinois Human Rights Act (Act) (775 ILCS 5/1-101 et seq. (West 2014)). In counts A, B, and D, she alleged that OSF unlawfully discharged her based on her age, gender, and disability. In count C, she claimed that OSF failed to accommodate her hearing loss disability by failing to provide her with a headset to answer the phone. ¶6 The Department’s investigation revealed that in February 2013, Pence received a Level I discipline from her immediate supervisor, Judy Searle, for using profane or abusive language and for her disruptive behavior. According to Pence, the discipline occurred after she raised her voice during a phone call because she had hearing loss in her left ear. Pence requested a headset from Searle later that month because she could not hear when she answered the phone with her left hand. According to Pence, Searle denied her request. Pence stated that she believed the last time she asked about the headset was in October 2014. ¶7 Searle retired in March 2015, and Pence then began working under the supervision of Executive Director Richard Thomas. Thomas told Pence that he would handle payroll and that -2-  it was no longer her responsibility. Pence admitted to the Department investigator that she “stormed” into an office unannounced and was given a Level II discipline by Thomas for “screaming” at the assistant managers in the room in violation of the Code of Conduct. ¶8 According to Thomas, Pence received “coaching,” or constructive instruction, from her supervisor for aggressive and intimidating behavior in October 2010, March 2011, June 2011, July 2011, and July 2014, as required by OSF’s Code of Conduct. Thomas stated that he gave Pence a Level II discipline for “approving her own time cards and for her threatening and intimating behavior toward several members of the leadership team.” Thomas noted a specific instance in which Pence grabbed a list out of a coworker’s hand, pointed her finger in the coworker’s face, and followed the coworker down the hall while “yelling at her.” On another occasion, Pence “barged” into an office where three assistant managers were working and threatened to delete an employee information spreadsheet and to hide important employee information. That incident resulted, in part, in the Level II discipline. After Pence responded to the discipline and submitted an action plan, Thomas sent Pence an e-mail outlining the expectations required of Pence relative to her pattern of behavior that had been perceived as threatening and intimidating. ¶9 In late March 2015, OSF hired Lisa Fuller, who became Pence’s supervisor. After she was hired, Fuller met with Pence and instructed her to seek approval before working any overtime. Pence normally worked from 8 a.m. to 4:30 p.m. She agreed that she would get permission from Fuller before working past 4:30 p.m. ¶ 10 According to Fuller, Pence had to be reminded repeatedly that she needed to seek permission before incurring overtime. On May 5, 2015, Fuller disciplined Pence at a Level III for working overtime without prior approval. Pence admitted that she worked 20 minutes past her scheduled hours but said she stayed late to wait for new computers to arrive at the office. ¶ 11 Fuller also told the Department investigator that she had no knowledge of Pence’s hearing loss disability. Pence did not ask Fuller for a headset for her phone, nor did she notify Fuller of the need for any accommodation. ¶ 12 On August 3, 2015, Fuller held a weekly staff meeting with the employees in her group, including Pence. During the meeting, Pence “became angry and stated that she wanted access to employee calendars and the electronic payroll database. Fuller stated that Pence “threatened to retaliate” if her access was not reinstated. ¶ 13 On August 5, 2015, OSF discharged Pence. According to Fuller, Pence was discharged because she did not display “courtesy, dignity, and respect” for her manager, which violated the Code of Conduct. Pence was replaced by Lisa Koutelis, a 50-year-old female. ¶ 14 In completing its investigation, the Department investigator spoke to Pence, Fuller, Thomas, and Jacki Fugett, counsel for OSF. The Department also reviewed numerous documents (attached to the report as Exhibits A-O), including Pence’s disciplinary actions, coaching reports, Thomas’s e-mail to Pence, Fuller’s notes from the August 3, 2015, staff meeting, and Pence’s discharge letter. None of the exhibits are included in the record on appeal. ¶ 15 In its report, the Department recommended a finding of lack of substantial evidence as to counts A, B, and D. The Department determined that there was no substantial evidence to support Pence’s discriminatory claims because OSF “had a reasonable non-discriminatory reason” for discharging Pence. It noted that OSF discharged Pence for behavior that violated -3-  its Code of Conduct and for failing to seek approval for overtime hours. The Department also recommended a finding of lack of jurisdiction as to count C, noting that Pence last requested a headset in October 2014 but failed to file a charge until November 2015. The Department concluded that count C was untimely because Pence did not file her charge within 180 days of the alleged discrimination. ¶ 16 Pence filed a request for review with the Commission. She argued that the Department ignored her statements and made impermissible credibility determinations by resolving factual disputes in OSF’s favor. She further claimed that, contrary to OSF’s policy requiring communication between an employee and supervisor before an initial discipline, her personnel file did not contain any record of coaching sessions by Searle before her Level I discipline. ¶ 17 In response, the Department agreed that further investigation was necessary, without elaboration, and requested that the Commission vacate the dismissal and remand for additional proceedings. In accordance with the Department’s recommendation, the Commission entered an order reinstating the charge and remanding for further investigation. ¶ 18 On remand, the Department conducted additional interviews and reviewed new documents. In her interview, Pence told the Department that she received the Level I discipline because Searle misunderstood Pence’s reason for raising her voice. According to Pence, she raised her voice over the phone because she suffered from hearing loss in her left ear. Pence also claimed that Searle issued the Level I discipline without any formal coaching, as required by company policy. In response, OSF submitted Searle’s notes showing that Searle and Pence discussed Pence’s aggressive and intimidating behavior on several occasions between October 2010 and July 2011. ¶ 19 Pence also asserted that Fuller “lied” when she said that Pence made demands and acted in an intimidating manner at the August 3, 2015, meeting. Pence did not provide an account of the conversation that occurred at the meeting. As in her initial interview, Fuller described Pence’s behavior in the meeting as “angry” and “threatening.” She stated that Pence demanded access to other employees’ calendars, wanted her payroll duties returned to her, and threatened to retaliate against Fuller if she did not “get her way.” Fuller further stated that Pence’s discharge had nothing to do with her disability. Pence had been warned and her conduct deviated from the Code of Conduct requiring courtesy, dignity, and respect. The Department dismissed Pence’s charge again, following the reasoning of its initial recommendation. ¶ 20 Pence filed a second request for review, arguing that the Department made factual findings unsupported by allowable evidence. Pence claimed that the documents OSF submitted in support of Searle’s coaching sessions between October 2010 and July 2011 had not been disclosed to her when she received her personnel file from OSF in October 2015. As to count C, she argued that she did not admit that she last requested a headset in October 2014. She claimed that during the supplemental interview, she told the Department investigator that she “did not know the exact dates when her requests were made, but [OSF] would have email records of at least some of them.” ¶ 21 The Commission analyzed Pence’s claims of discrimination and lack of accommodation and sustained the Department’s dismissal. In doing so, the Commission rejected Pence’s argument that the Department improperly considered documents that were not in her personnel file as required under the Personnel Record Review Act. The Commission stated that it did not rely on the coaching documents from 2010 and 2011 in sustaining the Department’s dismissal of counts A, B, and D. Although it considered Thomas’s e-mail describing Pence’s history of -4-  threatening and intimidating behavior, the Commission noted that the March 2015 e-mail was included in Pence’s file. As to count C, the Commission agreed that the failure-to-accommodate claim was untimely because Pence informed the Department that she last requested a headset in October 2014. ¶ 22 II. ANALYSIS ¶ 23 A. Personnel Record Review Act ¶ 24 Pence argues that the Department improperly relied on documents related to Searle’s “coaching” sessions that occurred between October 2010 and July 2011 because OSF was prohibited from using them in the proceedings under the Personnel Record Review Act. She claims that the Department’s unlawful use of such documents requires us to reverse the Commission’s order sustaining the dismissal and to remand her charge for further proceedings. ¶ 25 In construing a statute, we look to the statutory language itself and give that language its plain and ordinary meaning. Van Dyke v. White, 2019 IL 121452 , ¶ 46. “Words and phrases should not be construed in isolation but must be interpreted in light of other relevant provisions of the statute.” Id. Courts should construe each word in its context to ensure that no term is rendered superfluous or meaningless. Pouk v. Village of Romeoville, 405 Ill. App. 3d 194 , 197 (2010). Where the language of the statute is clear and unambiguous, courts may not resort to extrinsic aids of construction. In re Detention of Powell, 217 Ill. 2d 123 , 135 (2005). ¶ 26 Section 2 of the Personnel Record Review Act provides that “[e]very employer shall, upon an employee’s request ***, permit the employee to inspect any personnel documents which are, have been or are intended to be used in determining that employee’s qualifications for employment, promotion, transfer, additional compensation, discharge or other disciplinary action.” 820 ILCS 40/2 (West 2018). To promote personnel recordkeeping, section 4 provides that “[p]ersonnel record information which was not included in the personnel record but should have been as required by this Act shall not be used by an employer in a judicial or quasi-judicial proceeding.” Id. § 4. However, information that “was not intentionally excluded from the personnel record may be used by the employer in the proceeding if the employee agrees or has been given a reasonable time to review the information.” Id. ¶ 27 By its plain and ordinary terms, section 4 prohibits an employer from using information that was not included in an employee’s personnel file in a judicial or quasi-judicial proceeding. Illinois courts have concluded that the determination of whether there is substantial evidence to support a charge of discrimination is not a quasi-judicial decision. Graves v. Chief Legal Counsel of the Department of Human Rights, 327 Ill. App. 3d 293 , 295 (2002). Before the Department issues a formal complaint, the proceedings are investigatory, not adjudicatory. Id. When the Department dismisses a charge for lack of substantial evidence, the dismissal occurs during the investigatory or fact-finding stage, including the Commission’s decision to sustain the dismissal. Id.; see also Jabbari v. Human Rights Comm’n, 173 Ill. App. 3d 227 , 233 (1988). The Commission’s determination to sustain the dismissal is not a quasi-judicial decision. The Department’s dismissal and the Commission’s subsequent review of that decision are essentially prosecutorial, i.e., whether there is sufficient evidence to prosecute the charge. See 775 ILCS 5/7A-102(D)(2), (3) (West 2018); id. § 8-103(A). ¶ 28 In this case, section 4 does not apply to the Department’s investigation and dismissal of Pence’s charge or the Commission’s review of the dismissal because those proceedings were not judicial or quasi-judicial in nature. The proceedings are only judicial or quasi-judicial if the -5-  Department determines that there is substantial evidence and files a complaint before the Commission. See id. § 7A-102(D)(4). Because the proceedings before the Department and the Commission were investigatory, section 4 of the Personnel Record Review Act does not apply. ¶ 29 Even if the Personnel Record Review Act applied, the record shows that the Commission did not rely on Searle’s coaching notes in sustaining the Department’s dismissal of Pence’s charge. Pence admits that she received all other documents reviewed by the Department and the Commission, except those related to the coaching incidents in 2010 and 2011. The Commission’s order expressly states that it did not rely on Searle’s coaching notes or consider the incidents as discipline that supported Pence’s discharge. Moreover, the record does not indicate that OSF relied on the coaching incidents when it discharged Pence. The Commission’s decision to sustain the dismissal only discussed Pence’s formal discipline—beginning with the Level I discipline on February 22, 2013, and concluding with the Level IV discharge on August 5, 2015—as its basis for sustaining the Department’s dismissal. Accordingly, Pence cannot show that the Commission considered information that was not included in her personnel file in sustaining the Department’s dismissal of her discrimination charge. ¶ 30 Further, we disagree with Pence’s claim that the Commission considered Searle’s coaching notes when it cited Thomas’s March 2015 e-mail summarizing Pence’s “history of intimidating and threatening behavior.” Thomas’s e-mail does not reference the coaching incidents. Any conclusion that, in considering Thomas’s statement, the Commission considered other inadmissible documentation is speculative. See Wilson v. Department of Professional Regulation, 344 Ill. App. 3d 897 , 907 (2003) (agency’s consideration of inadmissible report reversible only if there was “demonstrable prejudice”). ¶ 31 As the Commission noted, Thomas’s e-mail was included in Pence’s personnel file and submitted as an exhibit in the Department’s initial investigation report. Because the information was part of the personnel file, the Department did not violate the Personnel Record Review Act by admitting it. Therefore, the dismissal did not rely on documents that should have been excluded under section 4 of the Personnel Record Review Act. ¶ 32 B. Credibility Determinations ¶ 33 Pence also claims that the Department made credibility determinations in dismissing her charge in violation of her due process rights, as prohibited by Cooper v. Salazar, No. 98 C 2930, 2001 WL 1351121 , at *4 (N.D. Ill. Nov. 1, 2001). ¶ 34 In Cooper, the crux of the question was whether the Department violated the plaintiffs’ due process rights by making “credibility determinations in making substantial evidence determinations.” Id. at *3. The federal district court concluded that the Department’s determination of whether substantial evidence supported a charge was a quasi-judicial proceeding and issued an injunction against the Illinois Department of Human Rights to “cease permanently from relying on credibility determinations made without affording the rights of confrontation and cross-examination.” Id. at *10. ¶ 35 Since the injunction in Cooper was issued, the Act has been amended to remove the language allowing the Department to resolve “questions of credibility” in determining whether there is a lack of substantial evidence. In other words, section 7A-102(D)(2) of the Act no longer authorizes the Department to make credibility determinations. See Pub. Act 94-146, § 5 -6-  (eff. July 8, 2005) (amending section 7A-102(D)(2) of the Act to delete the language permitting the Department to resolve “questions of credibility”). ¶ 36 Pence claims that despite the federal court injunction and the statutory amendment, the Department proceeded to make credibility determinations against her and in favor of OSF in violation of her due process rights. We disagree. In this case, the Department did not exceed its investigatory authority in determining that there was no substantial evidence to support Pence’s claims of discrimination. See 775 ILCS 5/7A-102(D)(2), (3) (West 2018). ¶ 37 To establish a prima facie case of employment discrimination under the Act, the employee bears the burden of showing by a preponderance of the evidence that (1) she is a member of a protected class, (2) she was meeting her employer’s legitimate business expectations, (3) she suffered an adverse employment action, and (4) the employer treated similarly situated employees outside the class more favorably. Owens v. Department of Human Rights, 403 Ill. App. 3d 899 , 919 (2010). At that point, the burden shifts to the employer to articulate a legitimate, nondiscriminatory reason for the adverse employment decision. Zaderaka v. Illinois Human Rights Comm’n, 131 Ill. 2d 172 , 179 (1989). If the employer meets its burden, the employee must prove by a preponderance of the evidence that the employer’s articulated reason was, in fact, a pretext for unlawful discrimination. Id. ¶ 38 Where an aggrieved person brings a charge under the Act, the Department investigates to determine whether the allegations are supported by substantial evidence. 775 ILCS 5/7A-102(C)(1) (West 2018). “Substantial evidence is evidence which a reasonable mind accepts as sufficient to support a particular conclusion and which consists of more than a mere scintilla but may be somewhat less than a preponderance.” Id. § 7A-102(D)(2). If the Department determines there is no substantial evidence supporting the charge, the charge is dismissed. Id. § 7A-102(D)(3). The charging party may then file a request for review of the dismissal with the Commission or commence an action in circuit court. Id. ¶ 39 Here, Pence did not submit substantial evidence that OSF’s reasons for discharging her were pretextual. The interviews and documents established that OSF discharged Pence because she threatened her coworkers, approved her own timecards, worked overtime without permission, threatened to disclose and delete confidential employee information, and threatened to retaliate against her supervisor if her privileges were not restored. These facts were not disputed, and they articulated a nondiscriminatory reason for OSF’s adverse employment decision. Because there was evidence that OSF’s decision was motivated by Pence’s history of inappropriate behavior rather than her age, gender, or disability, the Department concluded that there was a lack of substantial evidence. That determination did not require the Department to resolve questions of credibility or otherwise violate Pence’s due process rights. ¶ 40 Pence also claims that the Department was required to make credibility determinations in dismissing her failure to accommodate charge. Under the Act, a party must file a charge of discrimination with the Department “[w]ithin 180 days after the date that a civil rights violation allegedly has been committed.” 1 775 ILCS 5/7A-102(A)(1) (West 2016). If a charge The General Assembly amended the Act to extend the time to file a charge of discrimination to 300 1 days, while Pence’s second request for review was pending. Pub. Act 100-1066, § 5 (eff. Aug. 24, 2018) (amending 775 ILCS 5/7A-102(A)(1)). The amendment does not apply to Pence’s charge. See -7-  is untimely, the Department lacks jurisdiction to consider it. Sangamon County Sheriff’s Department v. Illinois Human Rights Comm’n, 233 Ill. 2d 125 , 141 (2009). A party cannot avoid application of the 180-day period by failing to inform the Department and the Commission of the precise dates on which the incidents occurred. Graves, 327 Ill. App. 3d at 299. ¶ 41 Count C of Pence’s charge alleged that OSF failed to accommodate her disability when it refused to provide her with a headset for answering the phone. According to her interview, Pence last requested a headset in October 2014. In her second request for review, she asserted that she did not know the exact dates when her requests were made and stated that OSF “would have email records of at least some of them.” But she failed to provide any evidence to support that claim, and the record refutes her assertion. Pence’s vague statement that she continued to request a headset without precise dates does not allow her to avoid the 180-day jurisdictional limit, nor does it show that the Department made a credibility determination in dismissing the claim as untimely. See id. ¶ 42 In sum, the Commission relied on undisputed evidence in reviewing the Department’s dismissal based on lack of substantial evidence and lack of jurisdiction. The only factual disputes appearing in the record were immaterial and would not have created substantial evidence to support Pence’s charge. Thus, the Commission did not violate the Cooper injunction. ¶ 43 III. CONCLUSION ¶ 44 For the foregoing reasons, the order of the Illinois Human Rights Commission is affirmed. ¶ 45 Affirmed. 775 ILCS 5/7A-102(L) (West 2018) (“The changes made to this Section *** apply to charges filed on or after the effective date of this amendatory Act of the 100th General Assembly.”). -8-

2020-12-03 23:03:32.599341+00

http://www.illinoiscourts.gov/Opinions/AppellateCourt/2019/4thDistrict/4180753.pdf

Digitally signed by Reporter of Decisions Reason: I attest to Illinois Official Reports the accuracy and integrity of this document Appellate Court Date: 2020.12.03 10:44:16 -06'00' In re Julie M., 2019 IL App (4th) 180753 Appellate Court In re JULIE M., a Person Found Subject to Involuntary Admission Caption (People of The State of Illinois, Petitioner-Appellee, v. Julie M., Respondent-Appellant). District & No. Fourth District No. 4-18-0753 Filed December 20, 2019 Rehearing denied January 1, 2020 Decision Under Appeal from the Circuit Court of Champaign County, No. 18-MH-17; Review the Hon. Jason M. Bohm, Judge, presiding. Judgment Affirmed. Counsel on Veronique Baker and Matthew Davison, of Illinois Guardianship & Appeal Advocacy Commission, of Hines, for appellant. Julia Rietz, State’s Attorney, of Urbana (Patrick Delfino, David J. Robinson, and James Ryan Williams, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.  Panel JUSTICE KNECHT delivered the judgment of the court, with opinion. Justices Turner and Harris concurred in the judgment and opinion. OPINION ¶1 In October 2018, the circuit court found respondent, Julie M., subject to involuntary admission on an inpatient basis. Respondent appeals the order, arguing the court erred in denying her motion to dismiss the State’s petition for involuntary admission as untimely filed in violation of sections 3-604 and 3-610 of the Mental Health and Developmental Disabilities Code (Mental Health Code) (405 ILCS 5/3-604, 3-610 (West 2016)). More specifically, respondent contends the facility in which she received both medical treatment and psychiatric treatment was a “mental health facility” that failed to comply with the admission requirements of the Mental Health Code and, as a result, held and treated her involuntarily for longer than the 24-hour period in which a petition for involuntary admission should have been filed. Respondent argues that the admission requirements of the Mental Health Code should have been complied with when her psychiatric treatment began, not when she was medically discharged. Respondent also contends that the circuit court erred when it found, under In re Linda B., 2017 IL 119392 , 91 N.E.3d 813 , that she had the burden of establishing the psychiatric treatment she received was imposed involuntarily. Respondent concedes the issue is moot but argues her appeal falls within the capable-of-repetition-yet-avoiding-review and public-interest exceptions to the mootness doctrine. We affirm. ¶2 I. BACKGROUND ¶3 On October 5, 2018, a petition for involuntary admission under section 3-601 of the Mental Health Code (405 ILCS 5/3-601 (West 2016)) was filed on behalf of respondent, a patient in the cardiovascular unit of Carle Foundation Hospital (Carle). According to the petition, respondent suffered mental illness and needed immediate hospitalization to prevent harm to herself or others. Among the allegations in the petition is the allegation respondent refused treatment or failed to adhere adequately to prescribed treatment because of the nature of her illness. The petition further indicated respondent, in a short period of time, twice received treatment at Carle following suicide attempts: “[Respondent] arrived via [emergency medical services] after a suicidal attempt on 9/14/18. She intentionally ingested 2 AAA batteries and 1 button battery. She has expressed suicidal ideation numerous times during this hospitalization. She reported that she went home from inpatient psychiatric hospitalization, became suicidal again, and intentionally swallowed batteries again with the expressed intent of committing suicide. During this hospitalization, she attempted to harm herself with a piece of plastic cup and trauma shears. She tried to grab for the badge with expressed intent of harming herself. She told [a registered nurse] that ‘I just NEED to cut.’ ” ¶4 A disposition report, authored by Benjamin Gersh, M.D., a consult liaison psychiatrist at Carle, was filed with the circuit court on October 9, 2018. According to the report, respondent was 36 years old and had resided in a supportive living residence in Champaign, Illinois. On August 29, 2018, respondent presented to the emergency room for a “panic attack.” While -2-  awaiting transportation to an inpatient psychiatric facility, respondent swallowed two batteries from a television remote control. At that point, respondent was admitted to Carle and underwent a procedure to remove the battery that did not pass on its own. The psychiatry department consulted with respondent on August 30, 2018, and recommended inpatient psychiatric treatment. On September 7, 2018, respondent was discharged to “OSF 5-East inpatient psychiatric unit” (OSF). While in OSF, respondent was diagnosed with unspecified bipolar disorder, post-traumatic stress disorder, and borderline personality disorder. She was prescribed multiple medications. Three days after her admission, respondent was discharged from OSF. Respondent denied having suicidal ideations on the date of discharge. ¶5 According to the report, on September 14, 2018, respondent arrived at Carle’s emergency department after having swallowed two AAA batteries and one button battery. She was taken to the operating room for an endoscopy procedure. One battery was found in the esophagus. The next day, an endoscopy was performed but no battery was recovered. On September 20, 2018, respondent underwent a colonoscopy for the removal of the remaining two batteries. Doctors found ulcerated areas, possibly due to battery liquid. Because of these injuries, surgical personnel were consulted. On September 21, 2018, surgery was performed, opening respondent’s colon. Three eroded areas and the remaining battery were found. ¶6 Dr. Gersh stated that the psychiatry department consulted with respondent on September 17, 2018, and saw her regularly: “9/19, 9/26, 10/1, 10/2, 10/4, 10/5.” Respondent attempted to hurt herself multiple times with anything she could find in her room. Because of these episodes, respondent “required two sitters.” Dr. Gersh reported “[b]ecause of her high acuity, interdisciplinary team meetings [were held] and a behavioral plan was initiated. The first one was on 10/4.” Dr. Gersh completed the involuntary certificate on October 4, 2018. ¶7 Dr. Gersh further reported on respondent’s lengthy psychiatric history: “Up until this current Carle admission on 9/14, she had been living at Eden Supportive Living. She does not appear to have this option anymore. She has been diagnosed with Borderline personality Disorder; along with major Depressive Disorder, Anxiety Disorder, Bipolar Disorder. She has a long[-]standing history of swallowing objects and cutting. *** I saw her when she was at The Pavilion from 4/13 through 5/21/18. She was there for more than a month and was transferred to McFarland State Psychiatric Facility. During that admission, she swallowed a battery there [and was sent] to the Carle [emergency department], in which an EGD was performed to remove the battery. *** From 11/2 through 11/5/2017, she was at Trinity Regional Medical Center after putting a pencil into her vagina and bladder. She was sent to an inpatient psychiatric unit. On 11/14/17, she was threatening to overdose on pills or insert objects into her vagina. She was sent to Gateway. On 12/7/2017, she broke off a plastic spoon piece into her vagina—she wanted to cut her insides. *** It looks like she was in McFarland as well in September 2017. In June 2017, she ingested batteries and went to a psych unit as well.” ¶8 The disposition report indicated that changes in respondent’s psychiatric medications occurred while she was in Carle. When she was discharged from OSF, respondent was on five psychiatric medications. As of the date of the disposition report, respondent had been taking seven. -3- ¶9 On October 16, 2018, respondent moved to dismiss the petition for involuntary admission. Respondent alleged she was admitted to Carle on September 14, 2018, and treated for the ingestion of batteries and injuries caused by the batteries. Respondent maintained she was medically cleared and fit for transfer to an inpatient psychiatric facility on September 28, 2018, but she remained involuntarily detained by Carle. Because, respondent argues, she was held more than 24 hours without proper documentation, which was not filed until October 4, 2018, she was entitled to release under sections 3-604 and 3-610 of the Mental Health Code. ¶ 10 Two days later, the circuit court held a hearing on respondent’s motion to dismiss and the State’s petition for involuntary admission. Respondent initially called Dr. Gersh to testify. In his role as consult liaison psychiatrist, Dr. Gersh and his team saw patients who “tried to hurt themselves or [were] psychotic or [had] psychiatric presentations of medical complications.” Carle did not have a psychiatric ward but treated psychiatric conditions. Dr. Gersh testified his team included Joseph Corbett, a nurse practitioner who was working on his psychiatric certification. After respondent’s September 14, 2018, admission to Carle, Corbett did not visit with respondent until September 17, 2018. ¶ 11 Dr. Gersh agreed with Corbett’s note recommending, on October 2, 2018, that respondent not be allowed to leave the facility against medical advice (AMA). The note meant that if respondent “expressed a desire to leave, *** then we would have been involved.” Dr. Gersh explained “usually if somebody’s trying to leave [AMA] and it’s somebody who’s tried to kill themselves, if they’re trying to leave, they will call us immediately to come in and do a decisionality examination on said person.” ¶ 12 Respondent next called Corbett to testify. Corbett was asked if respondent was willing to go to an inpatient psychiatry unit voluntarily. Corbett responded, “[D]uring this entire admission, she has all but—she even noted that, yeah, she’s been voluntary this—for this stay, she’s been voluntary to go to in-patient psychiatric hospitalization.” However, when asked if respondent, on September 26, 2018, told him “she would be willing to go to in-patient—an in-patient psychiatric hospital or unit voluntarily,” Corbett replied the record “doesn’t say.” ¶ 13 Corbett testified that, during an October 1 meeting, respondent reported she and her mother were looking at a homeless shelter in which respondent could reside. Respondent was “[t]ired of being stuck in the hospital.” Corbett noted that day that respondent stated, “she was just healing and waiting—just waiting for placement; specifically, regarding in-patient psychiatric hospitalization.” Corbett noted respondent should not be permitted to leave AMA, calling it standard protocol for patients who have demonstrated a risk to themselves. Corbett met with respondent again on October 2, and she told him to leave her room. Corbett complied and did not assess her that day. No notation that day was made on the record showing whether respondent voluntarily accepted treatment. ¶ 14 Renato Alcaraz Jr., an internal medicine hospitalist, testified that he treated respondent at Carle during the period of September 25-30, 2018. Dr. Alcaraz explained respondent was admitted to Carle for the ingestion of three batteries, one of which had to be retrieved via surgery. Laparoscopic surgery was planned, but, due to the inability to locate the battery, an open procedure was performed. While Dr. Alcaraz treated respondent, she was a patient on the medical floor. Respondent had postoperative abdominal pain. The incision had staples and was healing well. Respondent demonstrated no worrisome signs or symptoms around the surgical site. Her vital signs were relatively unremarkable. On September 28, 2018, Dr. Alcaraz’s department determined that respondent was medically stable. During his time treating -4-  respondent, Dr. Alcaraz did not expressly find respondent “medically stable for discharge.” Respondent’s counsel asked if Dr. Alcaraz required a patient’s staples to be removed before the patient is discharged from the hospital. Dr. Alcaraz agreed “there was no conversation about preventing her from being discharged at that point from a medical standpoint.” “[F]rom the 28th of September through the 30th of September,” he was “of the opinion [respondent] was medically stable for discharge.” ¶ 15 Kima Carroll, a registered nurse with Carle, testified she received a message that respondent was determined to be medically stable for discharge on September 28, 2018. Upon receiving such a determination, Carroll reviewed the institutions to which referrals could be sent. In respondent’s case, there were seven or eight institutions listed. Carroll sent necessary information to each of these institutions and followed up with them on September 29. ¶ 16 At the close of respondent’s evidence, the State called Dr. Gersh to testify. The State began questioning Dr. Gersh by asking if he had an opinion as to when respondent was discharged from Carle. Dr. Gersh responded that he felt “she was medically appropriate for transfer to a psych unit on [October 4, 2018].” The term “medical appropriateness” differed from “medical stability.” His decision was based on when respondent’s staples were removed. Dr. Gersh explained respondent tended “to swallow things, so having staples *** in somebody who swallows foreign objects is concerning and she had some serosanguineous leakage from her wound.” Because the local psychiatric facilities were not comfortable accepting “medically complicated people,” it was inappropriate to discharge respondent until October 4, 2018. She had nowhere to go. Respondent’s previous facility would not accept her. Her mother was attempting to find respondent a homeless shelter to reside in. In Dr. Gersh’s opinion, respondent’s “going to a homeless shelter [was] unacceptable.” Respondent’s staples were removed on October 3, 2018. The next day, she was discharged by the resident, which marked the end of her medical stay and respondent transitioned to a “psych stay.” ¶ 17 At the close of the evidence, the circuit court opined, under the Illinois Supreme Court’s decision in Linda B., that respondent had the burden of showing she did not voluntarily receive psychiatric services. The court denied respondent’s motion to dismiss and granted the State’s petition for involuntary admission upon concluding, in part, that respondent failed to show her psychiatric treatment was involuntary: “The more difficult question is, whether that certification on October the 4th was timely done. The law requires that someone who’s being held involuntarily must—the certificate must be filed within 24 hours. She was medically there because of a surgery to remove a battery. The surgery took place on September the 21st. She was then [seen] by Dr. Alcaraz from the 25th to the 30th. It was his opinion that she was medically stable and could be discharged, I believe he testified to, on the 28th. But, he also testified that he co-managed her care with both psychiatry and surgery. And Dr. Gersh testified, the evidence before the Court is that Dr. Gersh testified that she was medically discharged on the 3rd—October the 3rd. The question is whether she—whether prior to that discharge on October the 3rd, her legal status changed; that is, it went from being voluntarily in the hospital to involuntarily in the hospital. And it’s—it is the Respondent’s burden to establish that she was involuntarily there. The testimony and the evidence in this case is that she wanted to leave the hospital, there’s no question about that. But, wanting to leave the hospital, is that the same as being involuntarily in the hospital? Dr.—not Dr.—nurse practitioner Corbett -5-  testified that she wanted to leave but that she was responsive to him telling her that she wasn’t—it wasn’t appropriate for her to leave the hospital yet. That she needed placement before leaving the hospital. I think—I haven’t seen anything that suggests, that demonstrates in the court’s mind that she’s met her burden that she was involuntarily in the hospital. The fact that she didn’t want to be there is true of every person, I think, in the hospital. That doesn’t mean they’re involuntarily there. So—and I’m basing that decision on the reading of both [Linda B.] and [In re Andrew B., 386 Ill. App. 3d 337 , 896 N.E.2d 1067 (2008)], and it’s in the Andrew B. case that it appears the Court adopted a fairly technical definition of admission. The Court said that physical presence in a hospital or even a mental health facility does not mean that you’re involuntarily there. People can be there for a variety of reasons. And it’s only when that becomes involuntarily so, which in this case once she was discharged from the hospital, then she would be admitted under the—once she was medically discharged from the hospital on October 3rd, that is when the Court finds she was admitted for purposes of the Act. The certificate was filed within 24 hours of that, so the motion to dismiss will be denied.” The circuit court ordered respondent be hospitalized at McFarland Mental Health Center and Carle and the period of hospitalization not exceed 90 days. ¶ 18 This appeal followed. ¶ 19 II. ANALYSIS ¶ 20 A. Mootness ¶ 21 As both parties agree, this appeal is moot because respondent’s underlying 90-day admission period expired. See In re Andrew B., 237 Ill. 2d 340 , 346, 930 N.E.2d 934 , 938 (2010). Respondent argues that this court may nevertheless consider her appeal pursuant to an exception to the mootness doctrine. Respondent points to two exceptions she contends apply to this appeal: (1) the capable-of-repetition-yet-evading-review exception (In re Benny M., 2017 IL 120133 , ¶ 19, 104 N.E.3d 313 ) and (2) the public interest exception (see Linda B., 2017 IL 119392 , ¶ 19). The State disagrees, maintaining neither exception applies. ¶ 22 There are two elements to the capable-of-repetition-yet-evading-review exception: (1) the duration of the challenged action must be too short to be fully litigated before its end and (2) a reasonable expectation the same complainant will again be subject to the same action. Benny M., 2017 IL 120133 , ¶¶ 19-20. This exception applies when resolution of the issue would likely affect a future case involving the same respondent. In re Alfred H.H., 233 Ill. 2d 345 , 359, 910 N.E.2d 74 , 82 (2009). ¶ 23 Here, the 90-day duration is too short to allow review on appeal. The first element is met. Benny M., 2017 IL 120133 , ¶ 19. As to the second element, respondent argues her history establishes a reasonable expectation she will be subject again to the same conduct by Carle. Respondent emphasizes that within days of being discharged from Carle for swallowing batteries, she returned to Carle for a suicide attempt swallowing batteries. Respondent further maintains, as here, there is no indication Carle complied with the Mental Health Code during her earlier stay. ¶ 24 The State disagrees, arguing a decision in this case would have no effect on a future case, if any, involving respondent. According to the State, if respondent is admitted for medical -6-  treatment and refuses mental health treatment, she need only request discharge, which would trigger Carle to either discharge respondent or pursue an involuntary admission under the Mental Health Code. The State contends we need not resolve the appeal as respondent can avail herself of the protection of the Mental Health Code, and any failure to do so would be on respondent. ¶ 25 This appeal involves the interpretation of the Mental Health Code and a determination of whether its protections apply to a patient who is receiving simultaneous medical care and psychiatric treatment in a place deemed a “mental health facility.” In support of its contentions in this appeal, the testimony and the State’s arguments demonstrate that Carle believed it need not comply with the statutory voluntary or involuntary admission requirements under the Mental Health Code before providing inpatient psychiatric treatment to respondent because respondent had been admitted as a medical patient. Given respondent’s history, there is a reasonable expectation she will return to Carle in need of simultaneous medical and psychiatric treatment again. A decision on the merits will affect how respondent is treated when in Carle, or a similar institution, again for both medical and psychiatric conditions. A resolution of this issue will likely have some bearing on future litigation involving respondent. See Alfred H.H., 233 Ill. 2d at 360 . Both requirements of the mootness exception for issues that are capable of repetition yet evading review are met here. ¶ 26 B. Statutory Authority ¶ 27 The Mental Health Code is the exclusive means by which a person who is mentally ill may be admitted to a mental health facility. In re Gardner, 121 Ill. App. 3d 7 , 10, 459 N.E.2d 17 , 20 (1984); see 405 ILCS 5/3-200(a) (West 2016) (“A person may be admitted as an inpatient to a mental health facility for treatment of mental illness only as provided in this Chapter ***.”). Its “elaborate and complex system of procedures” were designed to protect the rights of those with mental illness. Gardner, 121 Ill. App. 3d at 10 . ¶ 28 The Mental Health Code provides two means for voluntary admission to a mental health facility for treatment of mental illness, each with different consequences for the facility and the patient. An “informal admission” is authorized upon a patient’s “request without making formal application therefor if, after examination, the facility director considers that person clinically suitable for admission upon an informal basis.” 405 ILCS 5/3-300(a) (West 2016). If a recipient is admitted informally, the facility must inform him or her “in writing and orally at the time of admission of his right to be discharged from the facility at any time during the normal daily day-shift hours of operation.” (Emphasis added.) Id. § 3-300(b). The facility also must determine whether a potential recipient is clinically appropriate for such an admission. See id. § 3-300(a), (c). ¶ 29 The second means is governed by section 3-400 of the Mental Health Code, for the “[v]oluntary admission to mental health facility.” Id. § 3-400. The requirements for this type of admission are more rigorous. Under section 3-400(a), a person “may be admitted to a mental health facility as a voluntary recipient for treatment of a mental illness upon the filing of an application with the facility director of the facility if the facility director determines and documents in the recipient’s medical record that the person (1) is clinically suitable for admission as a voluntary recipient and (2) has the capacity to consent to voluntary admission.” Id. § 3-400(a). -7-  To be found to have capacity, the recipient must be able to understand he or she may request discharge at any time and the discharge “is not automatic.” Id. § 3-400(b)(2). Upon a written request for discharge, the facility must, within five business days, discharge the recipient or initiate commitment proceedings. Id. § 3-400(b)(3). ¶ 30 Involuntary admissions are authorized by section 3-600 of the Mental Health Code: “A person 18 years of age or older who is subject to involuntary admission on an inpatient basis and in need of immediate hospitalization may be admitted to a mental health facility pursuant to this Article.” Id. § 3-600. Section 3-601(a) mandates that a petition be filed with a facility director of a mental health facility. Id. § 3-601(a). Section 3-602 requires that the petition be accompanied by a certificate stating the respondent is subject to involuntary admission on an inpatient basis and requires that the immediate hospitalization be signed by a “physician, qualified examiner, psychiatrist, or clinical psychologist” who examined the respondent not more than 72 hours before admission. Id. § 3-602. ¶ 31 Section 3-604 sets a deadline for the filing of a petition for involuntary admission—a deadline that is at issue in this case: “No person detained for examination under this Article on the basis of a petition alone may be held for more than 24 hours unless within that period a certificate is furnished to or by the mental health facility. If no certificate is furnished, the respondent shall be released forthwith.” Id. § 3-604. ¶ 32 Additional safeguards during the involuntary admission process are provided in the Mental Health Code. For example, section 3-206 requires the facility director of the mental health facility to provide the address and phone number of the Guardianship and Advocacy Commission when “a person is admitted or objects to admission, and whenever a recipient is notified that his legal status is to be changed.” Id. § 3-206. Section 3-208 provides that when a certificate must be filed for involuntary admission, the individual conducting an examination must inform the person being examined of the purpose of the examination, his or her right not to talk to the examiner, and that any statements made may be used at a court hearing on the issue of whether he or she is subject to involuntary admission. Id. § 3-208. Moreover, section 3-202(a) mandates that mental health facilities maintain adequate records regarding a patient’s admission and change in status. Id. § 3-202(a). ¶ 33 C. In re Linda B. ¶ 34 Central to the resolution of this matter is the supreme court’s decision in Linda B. In that case, like here, the respondent arrived “at the hospital with interrelated psychiatric and medical problems,” received psychiatric treatment while having been admitted medically, and was subject to a petition for involuntary admission to a mental health facility. Linda B., 2017 IL 119392 , ¶¶ 3, 5, 20. Given the factual similarities of the two cases and the precedential authority of the supreme court’s opinion, a summary of Linda B. is appropriate for resolution of this appeal. ¶ 35 In Linda B., the respondent was admitted to a medical floor at Mt. Sinai Hospital (Mt. Sinai) on April 22, 2013, where she also received psychiatric treatment. Id. ¶ 5. On May 9, 2013, the mental health facility director at Mt. Sinai filed a petition seeking the involuntary admission of the respondent to a treatment facility. Id. ¶ 3. Supporting the petition were certificates showing respondent was mentally ill and immediate hospitalization was necessary -8-  to prevent harm to the respondent or others. Id. ¶ 4. The respondent suffered paranoid delusions, refused medical and psychiatric medications, and was violent with medical staff. Id. ¶ 36 At the June 11 hearing on the petition for involuntary commitment, a psychiatrist testified the respondent received treatment for both medical and psychiatric conditions. Id. ¶¶ 5-6. The respondent had been admitted to Mt. Sinai earlier that same year “ ‘with similar presentation.’ ” Id. ¶ 6. When asked on cross-examination if the respondent was recommended for nursing home placement due to mental health reasons or medical reasons, the psychiatrist stated the respondent’s mental health conditions prevented her from taking care of her medical condition. Id. ¶ 8. ¶ 37 When asked if a May 28, 2013, note by the psychiatrist indicated the respondent was ready for discharge from Mt. Sinai, the psychiatrist responded that the respondent was on the medical floor waiting to be admitted to a nursing home and did not need to be transferred to an inpatient psychiatric unit. Id. ¶ 9. The respondent needed a one-to-one sitter while on the medical floor. Id. ¶ 38 After the State rested on its petition for involuntary admission, the respondent’s counsel moved to dismiss the petition based on the fact that the petition was filed well beyond 24 hours after the respondent’s admission, when respondent was admitted to the medical floor of Mt. Sinai on April 22, 2013, but was also treated psychiatrically. Id. ¶ 10. The State was permitted to reopen its case to present evidence as to the motion to dismiss. Id. ¶ 11. The psychiatrist testified “ ‘[w]e don’t submit any petitions for any other patients unless we start believing that patients need, either psychiatric admission or [a] patient needs treatment against their will.’ ” Id. ¶ 39 The circuit court denied the motion to dismiss and granted the State’s petition for involuntary admission. Id. ¶¶ 12-13. On appeal to the First District Appellate Court, the judgment of the circuit court was affirmed. Id. ¶ 15. Of note, the First District concluded “the medical floor of the hospital, arguably, was not a ‘mental health facility’ within the meaning of the statute, irrespective of whether psychiatric treatment was rendered there.” Id. (citing In re Linda B., 2015 IL App (1st) 132134 , ¶ 23, 29 N.E.3d 406 ). ¶ 40 The Illinois Supreme Court observed the appeal before it focused on two questions. The first was whether Mt. Sinai’s medical floor qualified as a “mental health facility” under the Mental Health Code. The second was what constitutes an admission under section 3-611 (405 ILCS 5/3-611 (West 2016)), which mandates, “ ‘[w]ithin 24 hours, excluding Saturdays, Sundays and holidays’ ” after a respondent’s involuntary admission, the facility director must file, in part, a petition, certificates, and proof of service of the petition and a statement of rights to the respondent. In re Linda B., 2017 IL 119392 , ¶¶ 26, 28. ¶ 41 In consideration of the first question, our supreme court observed that the “respondent’s psychiatric treatment and supervision on the medical floor were at least as comprehensive and structured as anything she might have received in the psychiatric unit.” Id. ¶ 36. Our supreme court concluded “[i]n those instances in which a facility or section of a facility provides psychiatric treatment to a person with mental illness—as was the case here—it qualifies as a ‘mental health facility’ for purposes of the Mental Health Code’s application.” Id. ¶ 37. In reaching this decision, the court noted its repeated acknowledgements that “the administration of involuntary mental health services involves a ‘massive curtailment of liberty.’ ” (Internal quotation marks omitted.) Id. ¶ 38 (quoting In re Robert S., 213 Ill. 2d 30 , 46, 820 N.E.2d 424 , 434 (2004), quoting In re Barbara H., 183 Ill. 2d 482 , 496, 702 N.E.2d 555 , 561 (1998), -9-  quoting Vitek v. Jones, 445 U.S. 480 , 491 (1980)). And it further observed that the purpose of the Mental Health Code’s “procedures is to provide adequate safeguards against unreasonable commitment.” Id. The court observed “one might well understand how a patient could be treated psychiatrically, involuntarily, in facilities not specifically designated as ‘mental health facilities’ and thus be deprived of the Mental Health Code’s safeguards.” Id. ¶ 39. ¶ 42 While noting the respondent could well have been deprived of the Mental Health Code’s safeguards, the court ultimately ruled against the respondent, after observing it did not “know” she was so deprived as the record did not show before the petition was filed the respondent was an involuntary recipient of psychiatric services at Mt. Sinai. (Emphasis in original.) Id. ¶ 40. The court focused on the absence in the record of the capacity in which respondent was admitted, as either a voluntary or involuntary recipient of treatment. Id. ¶ 41. The court observed that the record only demonstrated “bare-bones evidence of physical admission to the hospital, with some evidence of communication between hospital personnel and unidentified family members of [the] respondent.” Id. ¶ 42. This bare-bones evidence suggested the respondent may have been persuaded to go to the hospital voluntarily and treatment may have been consensual. Id. ¶ 43 The Linda B. court then held it was the respondent’s burden to show she was in the hospital involuntarily. Id. ¶ 43. The court concluded so upon citing case law related to an appellant’s burden on appeal: “It is well established that, on appeal, the party claiming error has the burden of showing any irregularities that would justify reversal. [Citation.] Error is never presumed by a reviewing court; it must be affirmatively shown by the record. [Citation.] It is the appellant’s burden to present a sufficiently complete record of the proceedings at trial to support a claim of error, and any doubts that may arise from the incompleteness of the record will be resolved against the appellant.” Id. ¶ 44 The court then held the respondent failed to meet that burden. Id. ¶ 49. The court observed that to establish the filing of the petition was untimely, the respondent had to show the initial period of hospitalization and psychiatric treatment was involuntary, which the record did not show. Id. ¶ 44. ¶ 45 Citing Andrew B., the Linda B. court acknowledged the legal status of a voluntary recipient of mental health services may change while one is in a mental health facility. Id. ¶¶ 48-49. Having found the respondent failed to demonstrate her entry to the facility or her initial treatment was involuntary, she failed to demonstrate error occurred. Id. ¶ 49. The court affirmed the involuntary admission of the respondent. Id. ¶ 51. ¶ 46 D. Merits ¶ 47 Respondent argues the petition for involuntary admission was untimely. According to respondent, Linda B. establishes Carle, in its psychiatric treatment of her, was a mental health facility as defined by the Mental Health Code. As such, respondent argues, Carle was required to comply with the Mental Health Code’s mandates regarding admission and it failed to do so, resulting in her confinement and psychiatric treatment without the provision of the safeguards of the Mental Health Code. Respondent emphasizes she was admitted for a suicide attempt on September 14, 2018, and the record shows psychiatric treatment began no later than September 17, 2018. Not until October 4, 2018, well beyond the statutory 24-hour mandate, according to respondent, did Carle file the petition for respondent’s involuntary commitment. - 10 - ¶ 48 The State frames the initial question to be resolved on appeal as “whether a facility must comply with the admission procedures of the [M]ental [H]ealth [C]ode in order to provide mental health treatment to an individual that is already admitted to the facility for medical treatment.” The State argues the facility does not. While conceding Carle “appears to be” a mental health facility, the State argues respondent was not admitted to Carle for mental health treatment but for medical treatment of the physical injuries resulting from the ingestion of three batteries. The apparent triggering event for its need to comply with the Mental Health Code’s admission was, according to the State, the determination respondent was ready to be discharged medically. Under this argument, the State maintains it was not until October 3, 2018, when respondent was discharged medically, that Carle had to proceed for an involuntary admission. ¶ 49 We agree with respondent that the Mental Health Code requires facilities that provide mental health treatment, i.e., mental health facilities, comply with the Mental Health Code’s admission procedures, even if a recipient has already been admitted to the facility for medical treatment. Linda B. involves a similar respondent, one admitted to an emergency department of a hospital while presenting with medical and psychiatric conditions. Id. ¶ 5. The resolution of that appeal establishes that a facility providing mental health treatment to patients must comply with the Mental Health Code, even when that facility is also providing medical treatment. No exception to the Mental Health Code was carved out for patients, like Linda B.’s respondent, who had been admitted for medical reasons. Indeed, such an exception would undermine the holding of Linda B., as the question of timeliness would have readily been resolved with the recognition the respondent was being treated medically and, therefore, no petition for involuntary admission would have been required. ¶ 50 The exception suggested by the State would result in the unusual scenario where psychiatric patients with no medical conditions are entitled to the protections of the Mental Health Code, while psychiatric patients for whom the severity of their mental illness results in self-harming or suicide attempts are not entitled to the same protections when being treated for physical injuries related to or caused by their mental illness. A mental health facility cannot hide behind a “medical care” shield to permit it to provide mental health services without the protections of the Mental Health Code and deny protections of the Mental Health Code to those patients who most need it. ¶ 51 We further reject the State’s contention that “[i]t would be absurd, unjust, and inconvenient to require treatment facilities to comply with the admission requirements of the [M]ental [H]ealth [C]ode every time an individual who has already been admitted for medical treatment also wants to receive mental health treatment.” (Emphasis in original.) Such an assertion belies the purpose of the Mental Health Code and the legislature’s intent to safeguard those subjected to or seeking inpatient mental health treatment. If facilities that fall within the definition of “mental health facility” want to provide inpatient psychiatric treatment, it is not absurd, unjust, or inconvenient to expect those facilities to comply with the admission procedures and thus ensure its patients are voluntarily receiving services or must be subjected to involuntary commitment. Here, although respondent was receiving medical treatment due to the physical injuries resulting from the ingestion of batteries, she was also subjected to significant psychiatric treatment, which included consultations with a psychiatric team, “sitters,” and psychotropic medications. She was entitled to the protections of the Mental Health Code. - 11 - ¶ 52 The State further contends we must affirm the circuit court, as respondent, like the one in Linda B., failed to meet her burden of showing her mental health treatment was involuntary. The State emphasizes respondent could have simply requested discharge or refused treatment, but she did not. Had she done so, according to the State, it could have filed the petition for involuntary admission sooner. However, as she did not, the State contends the petition was not untimely. ¶ 53 Respondent argues the circuit court improperly placed too much emphasis on the latter part of the Linda B. decision and found she carried the burden of establishing the treatment was involuntary. Respondent contends that to read Linda B. in this manner would undermine the language that expressly found that the Mental Health Code applies to facilities that provide mental health treatment and render the application of its safeguards meaningless. ¶ 54 Linda B.’s analysis regarding which party bears the burden of establishing voluntariness or involuntariness is concerning. In Linda B., our supreme court affirmed the denial of the respondent’s motion to dismiss upon concluding she failed to meet the burden of establishing her physical entry and initial treatment were involuntary. Id. ¶ 49. Upon finding the respondent carried this burden, the court, while discussing the proceedings in the circuit court, observed: “[i]n order to establish untimely filing of the May 9 petition, [the] respondent had to establish that her initial period of hospitalization and psychiatric treatment was involuntary.” Id. ¶ 44. While setting forth the respondent’s burden in the circuit court, the only analysis of that burden involves consideration of an appellant’s burden on appeal: “It is well established that, on appeal, the party claiming error has the burden of showing any irregularities that would justify reversal. [Citation.] Error is never presumed by a reviewing court; it must be affirmatively shown by the record. [Citation.] It is the appellant’s burden to present a sufficiently complete record of the proceedings at trial to support a claim of error, and any doubts that may arise from the incompleteness of the record will be resolved against the appellant.” Id. ¶ 43. No analysis was provided as to whether the recipient of mental health treatment or the provider of said treatment would carry this burden before the circuit court. The Linda B. court did not address the procedural process or burden shifting that might result from the filing of a petition for involuntary admission and a subsequent motion to dismiss. Nor did the court weigh policy considerations in the determination of which party should shoulder that burden, whether it be the mental health patient whose conditions are of such severity as to warrant a petition for involuntary commitment or the mental health facility that could secure proof of voluntariness by complying with the Mental Health Code, which obligates such facilities to (1) provide the application and accept or decline it based on the applicant’s capacity (405 ILCS 5/3-400, 3-401(b), 3-405(a) (West 2016)), (2) permit discharge or file an involuntary petition (id. § 3-400(b)), (3) maintain appropriate documentation (id. § 3-202(a)), and (4) seek an affirmance of a voluntary recipient’s status after 30 days (id. § 3-404). ¶ 55 Whatever the analysis, we are bound by the supreme court’s holding that respondent carried the burden of showing her admission and treatment were involuntary. Respondent has argued she has done so. Respondent emphasizes the absence of any documentation filed by Carle seeking her admission until after her medical discharge. However, that fact also existed in Linda B. See Linda B., 2017 IL 119392 , ¶ 41. Respondent emphasizes that her treatment included “sitters” and daily contact with psychiatric treatment providers. Those facts, too, existed in Linda B. See id. ¶¶ 4-5, 7. The facts that she would not speak to Corbett on one day, - 12 -  she no longer wanted to be in the hospital, and the absence of any notation of “voluntary treatment” in Corbett’s notes do not establish that respondent was involuntarily receiving psychiatric treatment. As in Linda B., there is insufficient evidence to establish her admission and treatment at Carle were involuntary. We must affirm the circuit court’s judgment. ¶ 56 While we affirm, we also note that Linda B. was decided September 21, 2017. Carle had one year to change its practices and to understand it was a “mental health facility” for purposes of the Mental Health Code and this patient. We conclude it was disingenuous for Carle to argue otherwise. One would hope, in future cases, Carle will strictly observe the admission requirements of the Mental Health Code and not, instead, rely on the individual to raise the issue. ¶ 57 III. CONCLUSION ¶ 58 We affirm the circuit court’s judgment. ¶ 59 Affirmed. - 13 -

2020-06-05 15:00:13.600706+00

http://www.ca2.uscourts.gov/decisions/isysquery/bef8bf6f-5917-43cf-8e9c-2ba59c4b1fb3/4/doc/17-4159_opn.pdf

17-4159-cr USA v. Estevez 1 UNITED STATES COURT OF APPEALS 2 FOR THE SECOND CIRCUIT 3 ------ 4 August Term, 2018 5 (Argued: May 2, 2019 Decided: June 5, 2020) 6 Docket No. 17-4159-cr 7 ____________________________________________________ 8 UNITED STATES OF AMERICA, 9 Appellee, 10 - v. - 11 RANDY ESTEVEZ, 12 Defendant-Appellant.* 13 ____________________________________________________ 14 Before: KEARSE, WESLEY, and CHIN, Circuit Judges. 15 * The Clerk of Court is directed to amend the official caption to conform with the above.  1 Appeal from a judgment of the United States District Court for the 2 Southern District of New York, Colleen McMahon, Chief Judge, convicting defendant, 3 a previously convicted felon, of being in possession of a firearm from on or about 4 February 21, 2016, through on or about February 26, 2016, in violation of 18 U.S.C. 5 § 922(g)(1), and sentencing him principally to 100 months' imprisonment. On appeal, 6 defendant contends principally that the district court erred in giving the jury a 7 general unanimity charge rather than, as he requested, instructing the jury that it 8 must unanimously agree on the particular date or dates on which he possessed the 9 firearm within the period alleged. He also asserts substantive and procedural 10 challenges to his sentence. Finding no basis for reversal, we affirm. 11 Affirmed. 12 AMANDA KRAMER, Assistant United States Attorney, 13 New York, New York (Geoffrey S. Berman, United States 14 Attorney for the Southern District of New York, Kiersten A. 15 Fletcher, Sarah K. Eddy, Assistant United States Attorneys, 16 New York, New York, on the brief), for Appellee. 17 BRUCE R. BRYAN, Syracuse, New York, for Defendant- 18 Appellant. 2  1 KEARSE, Circuit Judge: 2 Defendant Randy Estevez, who had been convicted of a felony in 2015, 3 appeals from a judgment entered in the United States District Court for the Southern 4 District of New York convicting him, following a jury trial before Colleen McMahon, 5 Chief Judge, of being in possession of a firearm from on or about February 21, 2016, 6 through on or about February 26, 2016, in violation of 18 U.S.C. § 922 (g)(1), and 7 sentencing him principally to 100 months' imprisonment, to be followed by a three- 8 year term of supervised release. On appeal, Estevez principally challenges his 9 conviction, contending that the district court erred in giving the jury a general 10 instruction that its verdict must be unanimous, rather than, as he requested, 11 instructing that the jury must agree unanimously on a particular date or dates on 12 which he possessed the firearm in the six-day period of possession alleged in the 13 indictment. He also challenges his sentence, contending that there was insufficient 14 evidence to warrant an enhancement for possessing the firearm in connection with 15 another felony offense, and that his 100-month prison term is substantively 16 unreasonable. Finding no merit in Estevez's contentions, we affirm. 3  1 I. BACKGROUND 2 The single-count indictment against Estevez alleged, in pertinent part, 3 that in violation of 18 U.S.C. § 922 (g)(1), 4 [f]rom at least on or about February 21, 2016 through on or about 5 February 26, 2016, . . . RANDY ESTEVEZ, the defendant, after 6 having been convicted in a court of a crime punishable by 7 imprisonment for a term exceeding one year, knowingly did 8 possess . . . a firearm . . . , to wit, a loaded 9 millimeter Stallard 9 Arms semiautomatic pistol . . . . 10 (Superseding Indictment ("Indictment") ¶ 1 (emphasis added).) The case grew out of 11 shootings in the Bronx, New York, on those two dates. 12 A. The Evidence at Trial 13 The government's evidence at trial as to the events of February 2016 was 14 presented principally through the testimony of law enforcement personnel and 15 cooperating witness Brandon Curley, together with security camera videos, DNA and 16 ballistics evidence, cellphone records, and cell-site data. The record, taken in the light 17 most favorable to the government, shows the following. 4  1 1. The February 21 Shooting 2 In the early evening of February 21, New York City Police Department 3 ("NYPD") officers responded to reports of shots fired in the vicinity of an IHOP 4 restaurant located at 232nd Street and Broadway (the "IHOP"). They found no one 5 injured, but they recovered a bullet fragment and two shell casings outside the 6 restaurant. Security camera footage of the IHOP parking lot shortly before 6:00 p.m. 7 showed a "muzzle flash" of gunfire and showed the suspected shooter running from 8 the scene. (Trial Transcript ("Tr.") at 68.) However, as the shooter's face was not 9 shown clearly, NYPD was unable to identify him using facial recognition software. 10 (See id. at 72-73 .) 11 2. The February 26 Shooting 12 a. The Testimony of Curley 13 Brandon Curley testified that Estevez was a friend he had known for 14 nearly a decade (see Tr. 231, 234), with whom he would hang out and "[s]moke weed," 15 i.e., marijuana (id. at 236; see id. at 243 ). In January of 2016, Estevez had suggested to 16 Curley that they rob a drug dealer known as "AB"; the plan had been that Estevez 17 would call AB and arrange a meeting to purchase marijuana, and that Curley--with 5  1 a gun provided by Estevez--would interrupt the sale and rob AB, but "make it look 2 like" he was also robbing Estevez. (Id. at 243-45.) However, Curley and Estevez 3 abandoned the plan when one of Curley's friends, a seller for AB, learned of the 4 scheme and persuaded them not to interfere with his source of income. (See id. 5 at 244-45.) 6 Curley testified that on February 26 at approximately 1:00 a.m., while he 7 was with a group of friends outside a building at 3340 Bailey Avenue (the "3340 8 Building" or "Building"), he received a call from Estevez, who proposed that the two 9 of them rob a neighborhood marijuana dealer called "Sharkey." (Id. at 262-64.) Curley 10 purported to agree, saying that Estevez should "hurry up and come now" to meet him 11 in front of the Building, and that Estevez did not need to bring a gun because they 12 could just beat Sharkey up. (Id. at 262-64.) 13 Despite that conversation, Curley, having been told that Estevez "always 14 has a gun on him," expected that Estevez would bring a gun. (Tr. 263-64.) Curley also 15 testified, however, that he never actually intended to help Estevez rob Sharkey; 16 instead, he planned to take Estevez's gun if one was brought, and then Curley and a 17 friend would beat up and rob Estevez. (See id. at 266 .) 6  1 Estevez arrived minutes later, and Curley, learning that Estevez was in 2 fact armed, asked to see the "grip"--local slang for "gun" (id. at 269; see id. at 345 ). 3 Estevez passed the gun to Curley and then reached over and undid the safety device 4 that would prevent the gun from firing. (See, e.g., id. at 272 .) Seizing the opportunity, 5 Curley pointed the gun at Estevez and demanded that he take off his coat; Estevez 6 instead lunged at Curley and the two began grappling over the gun. (See id. 7 at 272-73.) In the ensuing struggle, two shots were fired, one of them striking Estevez 8 near the hip. Estevez eventually gained control of the gun, and Curley fled. 9 b. Other Evidence About February 26 and February 21 10 The scuffle between Curley and Estevez prompted a 911 call reporting 11 that shooting had occurred near the 3340 Building. NYPD officers quickly arrived; 12 they sought information from the wounded Estevez, who responded to a few of their 13 questions but not others. Estevez was taken to a hospital and questioned further; his 14 outer clothing was taken by the police as evidence. Meanwhile, back at the 3340 15 Building, officers found a black firearm--a Stallard Arms nine-millimeter 16 semiautomatic pistol (the "Firearm")--under a white van parked near the Building. 17 (See Tr. 62, 97-98, 103.) 7  1 Later that morning, an NYPD detective, being informed of the 911 call 2 and the gun found under the van, went to the 3340 Building to view its security 3 camera videos for the period shortly before the recorded time of the 911 call. On the 4 Building videos, he saw, inter alia, two people engaging in a struggle; thereafter he 5 saw a person (whom he later identified as Estevez) holding a gun in his hands, and 6 then saw him walk toward the white van, crouch, and appear to throw an object 7 under the van. (See id. at 127-28, 134-36, 149 .) 8 The detective proceeded to view video from security cameras at a nearby 9 deli or bodega. One video showed the man who had just crouched by the white van, 10 walk in front of the deli. A few minutes later, the detective saw an NYPD anticrime 11 unit arriving at the Building, and he saw the man who had thrown the object under 12 the white van approach the crime squad officers. (See id. at 137-38 .) 13 After viewing the deli's videos, the detective returned to the precinct and 14 performed some computer checks. (See Tr. 153.) As a result of his investigation, the 15 detective, who had not known or ever seen Estevez, learned what Estevez looked like. 16 (See id. at 162 .) He "conclude[d]" that it was "Randy Estevez" who had "approached 17 the white van and put what appeared to be an object underneath that white van." (Id. 18 at 150.) 8  1 Estevez was arrested later that day on New York State charges of 2 criminal possession of a gun. He was subsequently indicted on the present federal 3 felon-in-possession charge. 4 Forensic testing revealed the presence of Estevez's DNA on the Firearm's 5 trigger guard. Ballistics analysis determined that the two discharged shell casings 6 recovered from the scene of the February 21 shooting at the IHOP had been fired from 7 the Firearm. The government also introduced evidence, based on cellphone records 8 and cell-site location data, that at the times of the February 21 and 26 shootings, 9 Estevez's cellphone had been near the locations of those shootings. 10 3. Estevez Telephone Conversations During Pretrial Detention 11 The government also introduced in evidence audio recordings of 12 telephone calls made by Estevez from jail in the days after his arrest, and it provided 13 transcriptions as aids (see, e.g., Government Exhibit ("GX") 70-T, with "RE" referring 14 to Randy Estevez, "UM" referring to an unidentified male speaker, and bracketed 15 material denoting the transcriber's notes). During a recorded conversation on 16 February 28, Estevez said he believed he would avoid being charged--that it was 9  1 "looking like a piece of cake, like, they don't got nothing on me" (GX 70-T at 3)--but 2 discussed the incident in part as follows: 3 RE: . . . I had the grip, then he was like "let me see that, 4 nigga." And tried to snatch shit, that's how we started tussling with 5 the shit . . . . 6 UM: What, what, what I'm saying, you don't think they gon' 7 run a ballistic, check on that thing? 8 RE: Aw, now the police? 9 UM: Yeah. 10 RE: I'm saying this shit, look like I'm beating this shit, bro. 11 UM: Well, they got ya handprints on it. 12 (Id. at 2 (emphases added); see, e.g., Tr. 269, 345 (in that neighborhood, "grip" was 13 slang for "gun").) 14 In a March 1 call, there was more discussion of the gun. Estevez said: 15 RE: They could've found the gun . . . they could've found the 16 shit under the van and just put two and two together and said I put it 17 there . . . . 18 .... 19 UM: . . . what else, what else. . . . did they mention anything 20 about that Broadway shit too? 21 [Voice says: you have one minute left] 10  1 RE: No, no, no. 2 UM: That's good. 3 (GX 72-T at 3 (emphases added).) The government argued in summation that "that 4 Broadway shit" was a reference to the February 21 shooting at the IHOP on 5 Broadway, and that the conversations evinced both concern that Estevez had been 6 linked to that shooting and relief that there had been no ballistics comparison (see 7 Tr. 579; see also id. at 593 (reminding the jury of the ballistics evidence that the shots 8 on February 21 at the IHOP and those on February 26 near the 3340 Building were 9 fired from the same gun). 10 4. The Defense 11 Estevez did not testify or present any evidence, although he argued as 12 an affirmative defense that his possession of the Firearm on February 26 had been 13 fleeting and necessary, as a response to an attack launched on him by Curley. 14 B. Verdict and Sentence 15 The jury, given a general instruction that it must be unanimous in its 16 verdict (see Part II.A. below), found Estevez guilty on the sole count alleged in the 11  1 Indictment. As discussed in Part II.B. below, he was sentenced principally to 100 2 months' imprisonment, to be followed by three years of supervised release. 3 II. DISCUSSION 4 On appeal, Estevez contends principally that the district court erred in 5 denying his request for a particularized, rather than a general, unanimity instruction, 6 and he challenges his sentence as procedurally and substantively unreasonable. We 7 find no merit in his contentions. 8 A. The Unanimity Instruction 9 Estevez asked the trial court to instruct the jury that in order to find him 10 guilty, it must agree unanimously that he possessed the Firearm on a particular date. 11 Insisting that all jurors needed to agree either that he possessed the Firearm on 12 February 21 or that he possessed it on February 26 (or that he possessed it on both 13 dates), Estevez proposed a charge that included the following language: 14 The sole count in this indictment charges that the defendant 15 committed the crime he is charged with on two different dates, February 16 21, 2016 and February 26, 2016, and at two different locations. 12  1 To find the defendant guilty, you must agree unanimously on 2 which particular date and location the defendant possessed the 3 firearm as a previously convicted felon. 4 If some of you were to find that the government has proved 5 beyond a reasonable doubt that the defendant possessed the 6 firearm as described on February 21, 2016, and the rest of you 7 were to find that the government has proved beyond a reasonable 8 doubt that the defendant possessed the firearm as previously 9 described on February 26, 2016, then there would be no 10 unanimous agreement on whether the defendant is guilty of the 11 one count in the indictment. 12 (Letter from Richard W. Barton, Esq., to Judge McMahon dated February 24, 2017, at 3 13 (emphases added).) Estevez proposed that the jury be given a verdict sheet on which 14 it would be required to specify which date or dates, and which location or locations, 15 the jurors had agreed on unanimously. 16 The court denied this request and gave the jury the following general 17 unanimity instruction: 18 The verdict must represent the considered judgment of each 19 of the twelve of you. In order to return a verdict, all twelve of you 20 have to agree. You have to be unanimous. We do not have nine- 21 to-three verdicts in criminal cases. It's twelve to nothing. 22 (Tr. 668.) 23 Estevez contends that he is entitled to a new trial on the ground that the 24 Indictment charged him with two crimes in its single count and hence was 13  1 duplicitous, see generally United States v. Sturdivant, 244 F.3d 71 , 75 & n.3 (2d Cir. 2001) 2 (a "duplicitous" complaint, i.e., one alleging two or more separate crimes in a single 3 count, potentially prejudices the defendant by creating uncertainty as to which of the 4 charged crimes the jury unanimously found proven). Estevez contends that the court 5 erred in declining to instruct the jury that it was "required to make special findings" 6 "unanimous[ly] on the date and location of the alleged possession by Estevez of a 7 firearm." (Estevez brief on appeal at 19, 18.) We disagree. 8 1. Appellate Review of Jury Instructions 9 "The propriety of a jury instruction is a question of law that we review 10 de novo. . . . A jury instruction is erroneous if it misleads the jury as to the correct legal 11 standard or does not adequately inform the jury on the law." United States v. 12 Wilkerson, 361 F.3d 717 , 732 (2d Cir. 2004) ("Wilkerson") (internal quotation marks 13 omitted); see, e.g., United States v. Ferguson, 676 F.3d 260 , 275 (2d Cir. 2011) 14 ("Ferguson"); United States v. Applins, 637 F.3d 59 , 72 (2d Cir. 2011) ("Applins"). 15 Similarly, "[t]he propriety of the district court's refusal to provide 16 requested jury instructions is a question of law that we review de novo." United States 17 v. Gonzalez, 407 F.3d 118 , 122 (2d Cir. 2005) ("Gonzalez"); see United States v. McCarthy, 14  1 271 F.3d 387 , 396 (2d Cir. 2001). A defendant who requested an instruction the court 2 declined to give "bears the burden of showing that the requested instruction 3 accurately represented the law in every respect and that, viewing as a whole the 4 charge actually given, he was prejudiced." Applins, 637 F.3d at 72 (internal quotation 5 marks omitted); see, e.g., Wilkerson, 361 F.3d at 732 ; Gonzalez, 407 F.3d at 122 ; United 6 States v. Dove, 916 F.2d 41 , 45 (2d Cir. 1990). 7 2. Instructions as to the Requirement of Jury Unanimity 8 "Federal crimes are made up of factual elements, which are ordinarily 9 listed in the statute that defines the crime," and a jury "cannot convict unless it 10 unanimously finds that the Government has proved each element." Richardson v. 11 United States, 526 U.S. 813 , 817 (1999); see, e.g., Fed. R. Crim. P. 31(a); see generally 12 Ramos v. Louisiana, 140 S. Ct. 1390 , 1396-97 (2020). However, the "jury need not always 13 decide unanimously which of several possible sets of underlying brute facts make up 14 a particular element." Richardson, 526 U.S. at 817 . 15 As to how the jury should be instructed in this respect, "[w]e have, time 16 and again, held that a general charge regarding unanimity is ordinarily sufficient to 17 protect the defendant's right to a unanimous verdict." United States v. Trupin, 117 F.3d 15  1 678, 687 (2d Cir. 1997); see, e.g., United States v. Natelli, 527 F.2d 311 , 325 (2d Cir. 1975) 2 (district court sufficiently informed the jurors "that they must be unanimous on 3 whatever specifications they find to be the predicate of the guilty verdict"); United 4 States v. Chandler, 98 F.3d 711 , 717 (2d Cir. 1996) (district court, refusing a request to 5 require the jurors to "agree on a particular theory of how the defendant violated the 6 law," sufficiently "instruct[ed] the jury that it must return a unanimous verdict"); 7 United States v. Harris, 8 F.3d 943 , 945 & n.2 (2d Cir. 1993) (district court sufficiently 8 instructed that "'as always, your verdict must be unanimous. . . . [Y]our verdict must 9 be unanimous on each count.'"); Ferguson, 676 F.3d at 280 (district court sufficiently 10 instructed that "'it is necessary that each juror agrees to [the verdict]'" (brackets in 11 Ferguson)). "'A general instruction on unanimity is sufficient to insure that such a 12 unanimous verdict is reached, except in cases where the complexity of the evidence 13 or other factors create a genuine danger of jury confusion.'" Id. (quoting United v. 14 Schiff, 801 F.2d 108 , 114-15 (2d Cir. 1986)); see, e.g., United States v. Jackson, 479 F.3d 485 , 15 491 (7th Cir. 2007) ("Johnny Jackson") ("a general unanimity instruction is sufficient in 16 the absence of a complex set of facts or a broad and ambiguous indictment that could 17 easily confuse a jury as to the need for unanimity"). 16  1 3. Elements of the Offense of Possession Under 922(g)(1) 2 Section 922(g)(1) provides, in pertinent part, that it is "unlawful for any 3 person . . . who has been convicted in any court of[] a crime punishable by 4 imprisonment for a term exceeding one year"--i.e., a felony--to "possess in or affecting 5 [interstate or foreign] commerce, any firearm." 18 U.S.C. § 922 (g)(1). A sentence of 6 up to 10 years' imprisonment is prescribed for any person who "knowingly violates" 7 that section. Id. § 924(a)(2). The elements of the offense with which Estevez was 8 charged are thus (1) his knowing prior conviction of a felony, (2) his knowing 9 subsequent possession of a firearm, and (3) the firearm's nexus with commerce. As 10 Estevez and the government stipulated that he had been convicted of a felony in July 11 2015 and that the Firearm had traveled in or affected interstate or foreign commerce, 12 the disputed issue was possession. 13 The Indictment alleged that Estevez possessed the Firearm "from at least 14 on or about February 21, 2016 through on or about February 26, 2016." Estevez 15 contends that "[t]he crime of possession [i]s complete in a single moment," and that the 16 Indictment in its single count thus alleged that he committed "separate crimes" on 17 those two dates. (Estevez brief on appeal at 18, 31 (emphasis added).) Estevez's use 18 of the word "complete" is correct in the sense that from the very moment a previously 17  1 convicted felon begins his knowing possession of a firearm (one having a nexus with 2 commerce), he is subject to prosecution under § 922(g)(1). Cf. Ball v. United States, 470 3 U.S. 856 , 862 (1985) (upon "recei[pt], a firearm is necessarily possessed" (internal 4 quotation marks omitted)). But in suggesting that "complete" in that single moment 5 means finished or ended, Estevez misconceives the nature of possession and of 6 prohibitions against possession. 7 Possession may or may not be brief, but it is not the kind of 8 instantaneous event that typically is concluded the moment it occurs; rather 9 possession is conduct that normally spans some period of time. "The offense 10 proscribed by section 922(g)(1) is not the felon's 'acquisition' of a firearm" but rather 11 "is the felon's possession of a firearm." United States v. Dillard, 214 F.3d 88 , 94 n.5 (2d 12 Cir. 2000) ("Dillard"). "Indeed, it seems undeniable that in the case of many convicted 13 felons, the reason why they possess guns illegally is to be able to use them in future 14 acts or threats of violence." Id. at 100 n.12. Thus, "possession" of a firearm "is a 15 continuing offense." United States v. Waters, 23 F.3d 29 , 36 (2d Cir. 1994); accord Johnny 16 Jackson, 479 F.3d at 491 ("[p]ossession of a firearm is a continuing offense which ceases 17 only when the possession stops" (internal quotation marks omitted)). "The offense 18  1 continues to be committed as long as the felon continues to be in possession." Dillard, 2 214 F.3d at 94 n.5. 3 As possession is a continuing offense, "[t]he continuous possession of the 4 same gun does not amount to a series of crimes, but rather constitutes a single 5 offense." United States v. Towne, 870 F.2d 880 , 886 (2d Cir. 1989). Indeed, in order to 6 convict a defendant "on two separate counts of being a felon in possession, the 7 government would have . . . to prove that he lost possession of the gun at some point 8 between the two charged dates." Johnny Jackson, 479 F.3d at 491 (emphasis in 9 original); cf. United States v. Praddy, 725 F.3d 147 , 157-58 (2d Cir. 2013) (government 10 is not entitled to claim that a defendant continuously possessed a firearm after it had 11 been seized from him upon his arrest). 12 In considering an allegation that a single offense of possession was 13 committed during a specified time period, the jury may properly return a verdict of 14 guilty if it finds unanimously that the defendant possessed the firearm at any point 15 during that period. See generally Richardson, 526 U.S. at 817 (the "jury need not always 16 decide unanimously which of several possible . . . underlying brute facts make up a 17 particular element"); see, e.g., Johnny Jackson, 479 F.3d at 487, 491 (where the indictment 18 charged the defendant with "possessing a firearm '[o]n or about July 12, 2004, through 19  1 July 15, 2004,'" it "charged not multiple offenses under one count of being a felon in 2 possession, but a single course of illegal conduct that spanned three days. . . . If half of the 3 jurors found that Jackson possessed the gun on July 12 and half found that he 4 possessed it on July 15, the jury would still be unanimous that he possessed a gun 5 between July 12 and July 15--which is exactly what the indictment charged." (last 6 emphasis in Johnny Jackson; other emphases added)). 7 4. The Present Case 8 The case against Estevez was not complex. It was commenced with a 9 simple one-count, one-paragraph indictment that charged him with being a felon in 10 possession of the specified Firearm in the six-day period from February 21, 2016 11 through February 26. There was no indication in either the Indictment or the trial 12 evidence that Estevez lost possession of the gun between those two dates. The 13 government's evidence created a strong and uncomplicated record, including first- 14 hand testimony by Curley, video evidence from security cameras, and Estevez's own 15 postarrest recorded telephone statement, that Estevez possessed the Firearm on 16 February 26; ballistics evidence that the Firearm had been fired at the Broadway 17 IHOP on February 21; cell phone records and cell-site data indicating that Estevez 20  1 was in the vicinity of those February 21 and 26 shootings; and scientific tests revealing 2 that the Firearm bore Estevez's DNA. 3 We conclude that the indictment properly charged, and the government 4 proved, the single offense of Estevez's possession of the Firearm during the period 5 alleged. The instruction requested by Estevez would have incorrectly charged the 6 jury that the Indictment charged him with two offenses rather than one. As 7 possession is a continuing offense, the jury was not required unanimously to pinpoint 8 a precise time at which Estevez possessed the Firearm within the period alleged. The 9 general unanimity charge delivered by the district court was correct and adequate. 10 And if there were error, we would conclude, given the overwhelming evidence that 11 Estevez possessed the Firearm on February 26, that the error was beyond a reasonable 12 doubt harmless. We see no basis for overturning the jury's verdict. 13 B. Sentencing Contentions 14 Estevez contends that the imprisonment component of his sentence, 100 15 months, is both (a) procedurally unreasonable, arguing that there was error in district 16 court's calculation of the range recommended by the Sentencing Guidelines 17 ("Guidelines"); and (b) substantively unreasonable, arguing principally that the court 21  1 failed to take into account his youth, disadvantaged background, and abusive 2 treatment he experienced while held in youth detention facilities. Both sets of 3 contentions are to be reviewed under the abuse-of-discretion standard. See, e.g., Gall 4 v. United States, 552 U.S. 38 , 41 (2007); United States v. Cavera, 550 F.3d 180 , 187 (2d Cir. 5 2008) (en banc) ("Cavera"); United States v. McGinn, 787 F.3d 116 , 129 (2d Cir. 2015) 6 ("McGinn"); United States v. Rigas, 583 F.3d 108 , 114 (2d Cir. 2009) ("Rigas"). Abuse of 7 discretion may be found where the court has made either an error of law or a clearly 8 erroneous finding of fact, or where its ruling "cannot be located within the range of 9 permissible decisions." E.g., United States v. Flores, 945 F.3d 687 , 704 (2d Cir. 2019) 10 (internal quotation marks omitted); McGinn, 787 F.3d at 129 (internal quotation marks 11 omitted); Rigas, 583 F.3d at 114 (internal quotation marks omitted). 12 1. The Guidelines Calculation 13 To the extent pertinent to this appeal, the district court's calculations, 14 under the 2016 version of the Guidelines, ultimately set Estevez's offense level at 22 15 and his criminal history category at VI; the Guidelines-recommended range of 16 imprisonment was thus 84-105 months (see Sentencing Transcript, December 20, 2017 17 ("S.Tr."), at 34). The offense-level calculation included a four-step enhancement on 22  1 the basis that Estevez possessed the Firearm in connection with another felony 2 offense. Estevez contends that there was insufficient evidence to support this 3 enhancement. We disagree. 4 The guideline in question calls for a four-step increase in offense level if 5 the defendant either 6 possessed any firearm . . . in connection with another felony 7 offense; or possessed . . . any firearm . . . with knowledge, intent, 8 or reason to believe that it would be used or possessed in 9 connection with another felony. 10 Guidelines § 2K2.1(b)(6)(B). "In General," this provision "appl[ies] if the firearm . . . 11 had the potential of facilitating[] another felony offense." Guidelines § 2K2.1 12 Application Note 14(A). "'Another felony offense'" is defined in pertinent part to 13 "mean[] any federal[ or] state . . . offense, other than the . . . firearms possession . . . 14 offense, punishable by imprisonment for a term exceeding one year, regardless of 15 whether a criminal charge was brought, or a conviction obtained." Id. Application 16 Note 14(C). In imposing an enhancement under § 2K2.1(b)(6)(B), the sentencing court 17 need not recite each element of the "[]other felony offense," so long as it makes 18 findings sufficient to permit meaningful appellate review. See United States v. Legros, 19 529 F.3d 470 , 474 (2d Cir. 2008). 23  1 Estevez's trial counsel opposed application of this guideline, arguing that 2 Curley's testimony should not be believed, and that the record showed only that 3 Estevez hoped to commit a robbery "at some nebulous time in the future" (S.Tr. 16). 4 His appellate counsel argues that "Estevez had agreed" with Curley that "they would 5 not use a gun to commit the robbery" of Sharkey, and that "the robbery never 6 occurred" (Estevez brief on appeal at 20). Their arguments are meritless. 7 First, the trial court--"the relevant trier of fact" with respect to sentencing 8 (S.Tr. 34)--credited Curley's trial testimony (see, e.g., id. at 12), and the record squarely 9 contradicts counsel's suggestion that Estevez's aspirations for robbing Sharkey 10 focused on some nebulous time in the future. Estevez called Curley at 1 a.m. on 11 February 26 to suggest robbing Sharkey; Curley, purporting to agree, "told [Estevez] 12 to hurry up and come now" (Tr. 264). Estevez arrived within minutes. (See, e.g., GX 13 70-T at 2 (after arriving, Estevez "tussl[ed]" with Curley over the gun); Tr. 134, 144-45 14 (in the Building security camera video, the NYPD detective saw two people tussling, 15 and thereafter recognized Estevez at 1:13:08).) That Estevez had intended to rob 16 Sharkey immediately was clear, not clouded. 17 Second, the fact that the robbery of Sharkey never actually occurred is 18 irrelevant. Under New York State law, attempt to commit robbery is a felony, 24  1 punishable by a prison term exceeding one year. See N.Y. Penal Law §§ 10.00 , 110.05, 2 160.05, 160.10, 160.15. Estevez acknowledges that, with respect to § 2K2.1(b)(6)(B), the 3 district court found that "'the firearm was possessed by the defendant in connection 4 with another felony offense'" on February 26, "'specifically, an attempt to commit a 5 robbery.'" (Estevez brief on appeal at 15, 21 (quoting S.Tr. 31-32, and noting that the 6 court instructed that Estevez's presentence report ("PSR") be amended to so state) 7 (emphasis ours).) 8 Estevez's only apparent effort to suggest that the evidence was 9 insufficient to support the court's finding that he possessed the Firearm in connection 10 with attempted robbery is his argument that in his call to Curley suggesting that they 11 rob Sharkey, Curley said that Estevez did not need to bring a gun and "Estevez 12 replied 'all right.'" (E.g., Estevez brief on appeal at 36 (quoting Tr. 264).) However, 13 it is undisputed that when Estevez went to meet his presumed accomplice Curley on 14 February 26 he "brought a loaded nine-millimeter semiautomatic pistol" (Estevez brief 15 on appeal at 6). The court found that "the reason why" Estevez had brought the 16 Firearm with him was that "the gun was going to come in handy that night . . . 17 because they were going to commit a robbery" (S.Tr. 34); "he was in the process of 18 committing a crime of attempted robbery" (id. at 12 (emphasis added)). The district 25  1 court committed no error in inferring that Estevez brought the Firearm in order to 2 have it with him for the planned robbery of Sharkey. Estevez's possession of the 3 loaded Firearm plainly had the "potential of facilitating" an attempted robbery. 4 Estevez does not argue that his conduct was otherwise insufficient to 5 constitute the crime of attempted robbery, nor would we agree with such an 6 argument. Under New York law, "[a] person is guilty of an attempt to commit a 7 crime when, with intent to commit a crime, he engages in conduct which tends to 8 effect the commission of such crime." N.Y. Penal Law § 110.00 . "In order to constitute 9 an attempt, the defendant's conduct must have passed the stage of mere intent or 10 mere preparation to commit a crime . . . . In other words, the defendant must have 11 engaged in conduct that came dangerously near commission of the completed crime 12 . . . ." People v. Naradzay, 11 N.Y.3d 460 , 466 (2008) (internal quotation marks omitted). 13 In Naradzay, the defendant, who planned to shoot a woman who had spurned him, 14 bought a shotgun, borrowed a car, drove to her street, and exited the car armed with 15 the loaded shotgun. (See id. at 463-64 .) But he was unsure of the exact location of her 16 house. (See id. at 464 .) While walking up the street, he was observed by someone 17 who called 911; he was arrested after a responding officer saw him standing on the 18 shoulder of the road, near the woman's driveway, the shotgun having been placed 26  1 next to a snowbank. (See id. at 464-65 .) His convictions for both attempted murder 2 and attempted burglary were affirmed. The Court rejected the defendant's contention 3 that his actions "did not come 'dangerously near' commission of burglary and 4 murder," id. at 466 , despite the fact that "he had not yet picked up the shotgun [which 5 he had, of course, brought with him, or] walked onto [the woman's] property[,] or 6 tried to enter her home," id. at 467 . 7 In the present case, the district court could likewise find that Estevez had 8 committed the crime of attempting to rob Sharkey. Estevez plainly intended to rob 9 Sharkey; he had called Curley precisely to enlist Curley's assistance in that robbery. 10 Although the record does not indicate that Estevez knew Sharkey's exact 11 whereabouts, Sharkey was a known drug dealer in the neighborhood; and when 12 Estevez called Curley at 1 a.m. on February 26 to suggest that they rob Sharkey, 13 Curley's purportedly enthusiastic response--"come now" and "hurry up"--plainly 14 implied that Sharkey could be robbed in or near the 3340 Building. It was clearly 15 permissible for the district court to infer that Estevez so understood that implication 16 and that he did hurry, arriving minutes later, carrying his loaded Firearm, expecting 17 to see or find Sharkey shortly and to rob him. The court did not err in inferring that 27  1 Estevez had gone sufficiently beyond mere intent or mere preparation to be 2 dangerously near commission of his planned robbery. 3 In sum, we see no error in the district court's finding that Estevez 4 possessed the Firearm on February 26 "because they were going to commit a robbery" 5 "that night," or with the court's conclusion that Estevez had brought the Firearm 6 because it would "come in handy" for the attempted robbery. We see no error of law 7 or abuse of discretion in the court's application of the § 2K2.1(b)(6)(B) enhancement. 8 2. Substantive Reasonableness 9 Estevez asserts that his 100-month prison term is substantively 10 unreasonable (see Estevez brief on appeal at 41-53), principally pointing to the facts 11 that he was only 19 years of age at the time of his present crime, too young to be 12 expected to have the maturity and judgment of an adult; that he had a disadvantaged 13 youth, in that he was "frequently assaulted" when he was "held in custody in juvenile 14 detention facilities for an extended period of his teenage years" (id. at 45-46); and that 15 in light of his youth at the time of most of his prior convictions, his Guidelines 16 criminal history "overstated the seriousness of his prior criminal conduct" (id. at 49). 28  1 We will "'set aside a district court's substantive determination' as to an 2 appropriate sentence 'only in exceptional cases where the trial court's decision cannot 3 be located within the range of permissible decisions.'" United States v. McIntosh, 753 4 F.3d 388 , 394 (2d Cir. 2014) (quoting Cavera, 550 F.3d at 189 (emphasis in Cavera)). The 5 "substantive unreasonableness standard[] in appellate review" is "deferential to 6 district courts and provide[s] relief only in the proverbial 'rare case'" in which the 7 sentence, "although procedurally correct, . . . was [so] shockingly high, shockingly 8 low, or otherwise unsupportable as a matter of law" as to "damage the administration 9 of justice." Rigas, 583 F.3d at 123 . This is not such a case. 10 Estevez's sentencing contentions were argued at length, at and prior to 11 sentencing; and the record indicates that the court considered his contentions and 12 addressed the pertinent sentencing factors it was required to consider under 18 U.S.C. 13 § 3553(a), in determining an appropriate sentence that would be sufficient, but not 14 greater than necessary, to comply with the statutory purposes of sentencing. The PSR 15 prepared on Estevez had calculated that his offense level was 28 and concluded that 16 the Guidelines-recommended range of imprisonment was 140-175 months, but 17 capped at 120 months by the 10-year statutory maximum for the offense. The district 18 court's acceptance of some of Estevez's arguments reduced his offense level to 22, 29  1 thereby lowering the range to 84-105 months. The court also recalculated Estevez's 2 criminal history points, although without similar effect. The PSR had calculated that 3 Estevez had 18 criminal history points, which placed him in criminal history category 4 VI--the highest Guidelines category. The court, over the government's objection, 5 declined to include in the calculation Estevez's first conviction for robbery, which 6 reduced his number of criminal history points to 15; however, his criminal history 7 was so extensive that he remained in category VI. 8 The court observed that Estevez had earned an extraordinarily "high 9 criminal history category" for one so young--i.e., by the age of 19 (S.Tr. 34). It noted 10 that whenever he got out of prison--"out on supervision" or "out under the thumb of 11 law enforcement"--he "went right back to doing what [he] had been doing before." 12 (Id. at 22.) 13 Although Estevez argues that because of his youth at the time of most of 14 his prior convictions, the PSR overstated the "seriousness of his prior criminal 15 conduct" (Estevez brief on appeal at 49), the court appropriately declined to conflate 16 Estevez's personal characteristics with the nature of his crimes. It noted that "so far 17 you spent your entire life doing nothing but violent things." (S.Tr. 21.) Indeed, of 18 Estevez's nine prior convictions, one was for gun possession, and six were for robbery 30  1 or assault. The court stated, "I accept that terrible things happened to you in your 2 life," and "I agree that the teenage brain is not completely formed." (Id.) And it stated, 3 "at one level I can sympathize"; "[b]ut I feel a responsibility to society to protect the 4 members of society from someone who is behaving the way that you have behaved." 5 (Id. at 22.) 6 Mr. Estevez has led a very, very violent young life. He has 7 demonstrated repeatedly his contempt for authority, his inability 8 or his unwillingness to follow the rules, including the rules on 9 multiple occasions when he was on parole. This does not leave 10 the Court feeling sanguine that he is a particularly good candidate 11 now, or anytime in the near future, for being in the community 12 under supervision. 13 (S.Tr. 33.) Noting that its revised Guidelines calculations resulted in a recommended 14 imprisonment range of 84 to 105 months, the court sentenced Estevez to 100 months, 15 stating, 16 I conclude that a sentence toward the high end of the guidelines 17 is appropriate but not greater than necessary, given the history 18 and characteristics of the defendant, the nature of the crime, the 19 need to impress upon the defendant the seriousness of his 20 behavior, and as I have said several times, the need to protect 21 society. 22 (Id. at 34.) 31 1 In sum, the record shows that the district court considered the § 3553(a) 2 factors, considered Estevez's sentencing contentions, and, after weighing the relevant 3 factors, imposed a sentence that was well within the bounds of its discretion. We see 4 no unreasonableness in his sentence. 5 CONCLUSION 6 We have considered all of Estevez's arguments on this appeal and have 7 found them to be without merit. The judgment is affirmed. 32

2020-12-03 23:03:33.461812+00

http://www.illinoiscourts.gov/Opinions/AppellateCourt/2020/4thDistrict/4190385.pdf

Digitally signed by Reporter of Decisions Reason: I attest to Illinois Official Reports the accuracy and integrity of this document Appellate Court Date: 2020.12.03 11:39:44 -06'00' In re Estate of White, 2020 IL App (4th) 190385 Appellate Court In re ESTATE OF MAHLON O. WHITE, Deceased (Robert Hubner; Caption St. Paul’s Catholic Church, Danville, Illinois; Schlarman Academy Foundation; OSF Healthcare Foundation; and Young Men’s Christian Association of Danville, Illinois, Petitioners-Appellees, v. The Illinois Great Rivers Conference of the United Methodist Church, Respondent-Appellant). District & No. Fourth District No. 4-19-0385 Filed February 27, 2020 Decision Under Appeal from the Circuit Court of Vermilion County, No. 16-P-227; Review the Hon. Charles C. Hall, Judge, presiding. Judgment Reversed. Counsel on John A. Kauerauf, of Sorling Northrup, of Springfield, for appellant. Appeal James A. Martinkus, of Erwin, Martinkus & Cole, Ltd., of Champaign, for appellee Robert Hubner. No brief filed for other appellees.  Panel JUSTICE KNECHT delivered the judgment of the court, with opinion. Justices Cavanagh and Holder White concurred in the judgment and opinion. OPINION ¶1 Respondent, the Illinois Great Rivers Conference of the United Methodist Church, formerly known as the Central Conference of the United Methodist Church of Illinois, appeals from the trial court’s order finding Richard S. White had granted Mahlon O. White the power to dispose of Richard’s interest in certain farmland by testamentary devise. On appeal, respondent argues we should reverse the trial court’s order, as the plain language of Richard’s will does not demonstrate he intended to grant Mahlon a testamentary power of disposition. We agree and reverse. ¶2 I. BACKGROUND ¶3 Richard and Mahlon White were brothers who owned separate undivided interests as tenants in common in approximately 416 acres of farmland in Vermilion County. ¶4 In 1995, Richard died, leaving a will. Richard’s will provided the following: “THIRD: I devise all of my real estate to my brother, MAHLON O. WHITE, and his wife, MARY WHITE, for their lifetime and the lifetime of the survivor; provided, however, that they shall have full right to sell or dispose of such real estate during their lifetime and to use the proceeds for whatever purpose they may desire. FOURTH: In the event both Mahlon O. White and Mary White shall predecease me or in the event at the time of the death of the survivor of Mahlon O. White and Mary White, my real estate has not been sold or otherwise disposed of, then all of my real estate shall be liquidated and the monies received from such liquidation, together with any monies received from the sale of personal property (if Mahlon O. White and Mary White have predeceased me) shall be distributed as follows: A. $10,000.00 to BOSWELL CEMETERY, Boswell, Indiana, to be used for the maintenance and upkeep of said cemetery. B. The balance to be paid over to the CENTRAL CONFERENCE OF THE UNITED METHODIST CHURCH of Illinois.” ¶5 In December 2016, Mahlon died, having been predeceased by his wife, Mary White. Mahlon left a will and three codicils thereto. With respect to the approximate 416 acres of farmland in Vermilion County, Mahlon’s will devised a specific portion of the farmland to Robert Hubner and then granted Hubner the right to purchase the remainder of the farmland upon certain terms and conditions. The proceeds from any purchase were to be distributed equally to St. Paul’s Catholic Congregation, Schlarman High School Foundation, Provena United Samaritans Medical Center Foundation, and Danville Family YMCA. Mahlon’s will was admitted to probate, and an independent executor was appointed. ¶6 In June 2018, the independent executor of Mahlon’s estate filed a petition for instruction concerning the ownership of the approximate 416 acres of farmland in Vermilion County. The -2-  petition alleged that, in March 2017, Hubner sought to exercise his right to purchase the farmland not specifically devised to him. Written arguments were filed by interested parties, Hubner and respondent. ¶7 In May 2019, the trial court entered a written order finding Mahlon had been granted under Richard’s will the power to dispose of Richard’s interest in the farmland by testamentary devise, which he duly exercised by drafting a will devising a specific portion of the farmland to Hubner and granting Hubner the right to purchase the remainder thereof. The court reached this finding by focusing on the language Richard used in his will that granted Mahlon the power to “dispose of” Richard’s interest in the farmland and the fact Black’s Law Dictionary (rev. 4th ed. 1968) defined “[d]ispose of” as to “alienate or direct the ownership of property, as disposition by will.” ¶8 This appeal followed. ¶9 II. ANALYSIS ¶ 10 On appeal, respondent argues we should reverse the trial court’s order finding Mahlon had the power to dispose of Richard’s interest in the farmland by testamentary devise as the plain language of Richard’s will does not demonstrate he intended to grant a testamentary power of disposition. Hubner disagrees, maintaining Richard intended to grant Mahlon a testamentary power of disposition based on his use of the language “dispose of” and its dictionary definition. ¶ 11 We review de novo a trial court’s legal conclusions as to the construction and legal effect of a will. Ernest v. Chumley, 403 Ill. App. 3d 710 , 714, 936 N.E.2d 602 , 606 (2010). When construing a will, a court’s primary objective is to ascertain and give effect to the intent of the testator. Harris Trust & Savings Bank v. Beach, 118 Ill. 2d 1 , 3, 513 N.E.2d 833 , 834 (1987). “A testator’s intent is most clearly evidenced by considering the plain, ordinary meaning of the words used within the four corners of the entire instrument itself.” Ernest, 403 Ill. App. 3d at 714 . ¶ 12 It is undisputed Richard devised his interest in the farmland to Mahlon as a life estate with a power of disposition. “[A]s a general rule, where a power of disposal accompanies a devise of a life estate, the power of disposal is only co-extensive with the estate which the devisee takes under the will, and means such disposal as a tenant for life could make, unless the will contains words indicating that a larger power was intended.” In re Estate of Cashman, 134 Ill. 88 , 92, 24 N.E. 963 , 963 (1890). A tenant for life can ordinarily only make inter vivos dispositions. Accordingly, we must look to the language of Richard’s will to determine whether Richard intended to grant a larger power of disposition—a testamentary power of disposition. ¶ 13 Richard’s will does not explicitly grant Mahlon the right to dispose of Richard’s interest in the farmland by will. To find that Richard intended to grant a testamentary power of disposition, the trial court relied upon the language in Richard’s will granting Mahlon the right to “dispose of” Richard’s interest in the farmland and the dictionary definition of that language. The court failed, however, to consider the language in Richard’s will qualifying the right to dispose of the farmland. Richard granted Mahlon and Mary the right to “dispose of [his interest in the farmland] during their lifetime.” (Emphasis added.) The qualifying language indicates Richard contemplated any disposition to occur while Mahlon or Mary were alive. -3-  While wills are drafted during one’s lifetime, any disposition under a will occurs only after the testator dies. Thompson v. J.D. Thompson Carnation Co., 279 Ill. 54 , 61, 116 N.E. 648 , 650 (1917) (“[T]he binding force of a will comes from the fact that it is the last expressed purpose of the testator in regard to the disposition of his property after his own death. While he lives it is without force or value, but it begins to speak when he ceases to do so and is thereafter heard in his stead.” (Internal quotation marks omitted.)). Given the qualifying language, we cannot conclude that the language granting Mahlon the right to “dispose of” Richard’s interest in the farmland evinces an intent to grant a testamentary power of disposition. See Burkholder v. Burkholder, 412 Ill. 535 , 539, 107 N.E.2d 729 , 731 (1952) (“The testator here delineated the devise to his wife with the phrase, ‘to be by her used and disposed of during her natural life,’ thus limiting the power of disposition to her lifetime, and precluding a disposition by will.” (Emphasis omitted.)). ¶ 14 In fact, we are convinced from our review of Richard’s will that Richard intended his interest in the farmland to be used solely for Mahlon’s and Mary’s benefit while they were alive. The language used in the will indicates Richard contemplated Mahon and Mary benefiting from the use of the farmland during “their lifetime,” which included the possibility of Mahlon or Mary having to dispose of the property and “to use the proceeds for whatever purpose they may desire.” Richard further provided for the event in which Mahlon and Mary had not sold or otherwise disposed of his interest in the farmland and named the entities the farmland should thereafter benefit. We find nothing in Richard’s will to conclude that Richard intended to grant Mahlon a testamentary power of disposition that would allow third parties named by Mahlon to benefit from Richard’s interest in the farmland after Mahlon’s death and cut out the remainderman named by Richard. ¶ 15 We find Richard devised his interest in the farmland to Mahlon and Mary as a life estate with a lifetime power of disposition. Because neither Mahlon nor Mary exercised that power of disposition, Richard’s interest in the farmland should pass in accordance with the terms of Richard’s will. ¶ 16 III. CONCLUSION ¶ 17 We reverse the trial court’s order. ¶ 18 Reversed. -4-

2020-12-03 23:03:34.322362+00

http://www.illinoiscourts.gov/Opinions/AppellateCourt/2020/3rdDistrict/3180096.pdf

Digitally signed by Reporter of Decisions Reason: I attest to Illinois Official Reports the accuracy and integrity of this document Appellate Court Date: 2020.12.03 10:30:34 -06'00' Hatcher v. Hatcher, 2020 IL App (3d) 180096 Appellate Court JULIA C. HATCHER and JOANNA KRAUS, Plaintiffs-Appellants, Caption v. JAMES G. HATCHER; RICHARD N. GENTRY Jr., as Representative of the Estate of Cynthia Hatcher, Deceased; and R&W APARTMENTS, LLC, an Illinois Limited Liability Company, Defendants (Richard N. Gentry Jr., as Representative of the Estate of Cynthia Hatcher, Deceased, Defendant-Appellee). District & No. Third District No. 3-18-0096 Filed August 31, 2020 Decision Under Appeal from the Circuit Court of Peoria County, No. 13-L-164; the Review Hon. Michael McCuskey, Judge, presiding. Judgment Affirmed. Counsel on Stephen M. Buck, of Quinn, Johnston, Henderson, Pretorius & Cerulo, Appeal of Peoria, for appellants. Christopher J. Spanos, of Westervelt, Johnson, Nicoll & Keller, LLC, of Peoria, for appellee.  Panel JUSTICE CARTER delivered the judgment of the court, with opinion. Justices O’Brien and Wright concurred in the judgment and opinion. OPINION ¶1 Plaintiffs, Julia C. Hatcher and Joanna Kraus, and their sister, Maria Martin, were named beneficiaries of a testamentary trust created by their grandfather, James G. Hatcher (testator). Also named as a beneficiary of the trust was the plaintiffs’ stepmother, defendant Cynthia Hatcher (now deceased, with Cynthia’s estate substituted as a defendant). Plaintiffs filed an unjust enrichment claim against Cynthia’s estate in relation to distributions made from the trust estate to Cynthia by the trustee, her husband, James G. Hatcher. 1 Following a bench trial, the trial court entered a judgment in favor of Cynthia’s estate regarding plaintiffs’ unjust enrichment claim. Plaintiffs filed a motion to reconsider, which the trial court denied. Plaintiffs appealed, arguing that the trial court erred in entering a judgment in favor of Cynthia’s estate regarding their unjust enrichment claim and erred in denying their motion to reconsider. We affirm the judgment of the circuit court. ¶2 I. BACKGROUND ¶3 On January 28, 1992, a testamentary trust was created by plaintiffs’ paternal grandfather by virtue of his last will and testament. The trust was to become effective upon the testator’s death and was to terminate after 20 years. The plaintiffs’ grandfather died on November 4, 1992. ¶4 In the will, the plaintiffs’ grandfather gave all his books, pictures, clothing, and articles of household or personal use or ornament, household furnishings and effects, and any other tangible personal property, to his two sons (James G. Hatcher (James) and William Hatcher (Bill)) to be divided equally. Their grandfather devised and bequeathed half of the “rest, residue and remainder” of his real and personal property to Bill, per stirpes, and the other half to James, “as Trustee of the James G. and Helen C. Hatcher Trust, to be held by him in trust, for the uses and purposes and with the powers and duties following.” The terms of the trust provided: “The Trustee [s]hall pay so much of the net income of the trust estate as he shall in his sole discretion determine in installments of equal or unequal amounts at his sole discretion no less than quarterly to [the testator’s] daughter-in-law, Cynthia Hatcher, so long as she shall so remain in status, and [the testator’s] granddaughters, Julia Hatcher, Maria Martin, and Joanna Hatcher [(James’s three daughters from his marriage with his first wife who had passed away)]. Any income not distributed shall be added to principal no less than annually. The Trustee shall have the power to encroach upon the principal of the trust estate for the benefit of any one or more of the beneficiaries of the trust as in his sole discretion he shall determine, whether because of sickness, accident or otherwise, and for educational purposes. As far as practicable any distribution of principal made by my Trustee to a grandchild pursuant to the 1 James’s middle name differs from that of his father, the testator, who was also named James G. Hatcher. -2-  foregoing power of encroachment, shall be charged, without interest, against any share to which such grandchild shall become entitled upon the termination of the trust.” ¶5 Under the terms of the trust, upon its termination 20 years after the testator’s death, “the Trustee shall divide and distribute the trust estate into such number of equal shares as my [sic] be necessary and sufficient to provide one such share for each of my granddaughter beneficiaries who shall then be living, and one equal share for the then living descendants, collectively, of each of my granddaughter beneficiaries who may then be dead, which shares shall again be distributed to such descendants, per stirpes.” The terms of the trust also indicated that the trustee “shall have full power and authority to do any and all things necessary or proper to manage and control the property” of the trust. ¶6 During the 20-year life of the trust, James distributed $311,682.25 of the trust’s income and $97,012 of the trust’s principal to his wife, Cynthia. The distributions were made into a bank account jointly held by Cynthia and James. In making the distributions, James mainly considered their joint debts. No distributions were made to any of the other beneficiaries. ¶7 On July 13, 2013, plaintiffs filed a five-count complaint, which was subsequently amended twice as to counts I, II, and III, and amended three times as to count IV. Counts I, II, and III, were brought against James, as the trustee, for his failure to provide an accounting during the 20-year life of the trust, for a breach of James’s fiduciary duty to remain impartial and loyal, and for a breach of James’s fiduciary duty to avoid self-dealing. Count IV alleged an unjust enrichment claim against James and Cynthia. Count V was brought against R&W Apartments, LLC, 2 for a constructive trust. Only count IV is at issue in this appeal. ¶8 In the third-amended count IV, plaintiffs alleged that James and Cynthia had been unjustly enriched because James, as trustee, breached his fiduciary duties to plaintiffs and abused his discretion by “making all distributions of income and principle of the Trust solely to his wife, Cynthia Hatcher.” The plaintiffs alleged that James, as trustee, paid trust funds to Cynthia into James and Cynthia’s joint bank account, and then James used the funds for his own personal benefit, paying for such things as repairs on his personal residence, personal expenses, entertainment, and recreation. The plaintiffs alleged that the funds that had been distributed to Cynthia were made in violation of James’s fiduciary duties of impartiality, loyalty, and avoidance of self-dealing, which resulted in James and Cynthia being unjustly enriched by more than $400,000. Plaintiffs alleged that they have a “superior claim to the funds,” Cynthia was unjustly enriched by her “receipt and acceptance” of the income and principle distributions, and plaintiffs were denied income and principle distributions to which they were entitled. ¶9 On August 18, 2017, after a two-day bench trial, the trial court found James did not breach his fiduciary duties of impartiality and loyalty because under the unambiguous language of the trust, James had “unfettered discretion” to distribute the funds of the trust. However, the trial 2 The trust owned a 55% interest in two apartment buildings. James took out a loan from the trust and executed a $58,300 promissory note in favor of the trust, which was signed by him and purportedly signed by Cynthia (but never proven to have been signed by Cynthia). James used the money for him and Cynthia to purchase the remaining 45% interest in the apartment buildings. James subsequently transferred both his and Cynthia’s 45% ownership interest and the trust’s 55% ownership interest in the apartment buildings into an LLC—R&W Apartments, LLC. Upon Cynthia’s death, Cynthia’s portion of her and James’s 45% ownership interest was transferred to James. -3-  court found that James breached his fiduciary duty of accounting and that the breach was so egregious that James was not entitled to any of the fees or compensation he had taken throughout the duration of the trust. The trial court also found that James breached his fiduciary duty against self-dealing with regard to the manner in which he established the R&W Apartments, LLC. The trial court determined that a constructive trust had to be established and the property had to be sold. The trial court did not enter a final judgment pertaining to James or R&W Apartments, LLC, due to pending issues pertaining to the constructive trust and the sale of the property. ¶ 10 As for the unjust enrichment claim in count IV, the trial court entered a judgment in favor of Cynthia’s estate and against plaintiffs. The trial court made a finding pursuant to Illinois Supreme Court Rule 304(a) (eff. Mar. 8, 2016) that the order entered in favor of Cynthia’s estate on the unjust enrichment claim was final and appealable and there was no just reason to delay an appeal. Plaintiffs filed a motion to reconsider, which the trial court denied. Plaintiffs appealed the judgment entered in favor of Cynthia’s estate and against plaintiffs on count IV and appealed the order denying their motion to reconsider. ¶ 11 II. ANALYSIS ¶ 12 On appeal, plaintiffs argue that the trial court erred in denying their unjust enrichment claim asserted against Cynthia’s estate. Plaintiffs first contend the trial court erred in determining that the trustee had “unfettered discretion” in making the distributions of principal and income to Cynthia and further erred by finding a lack of proof as to Cynthia’s unjust enrichment. In response, the representative of Cynthia’s estate argues that plaintiffs failed to prove Cynthia unjustly received and retained a benefit and failed to prove the amount of any such alleged benefit to Cynthia. ¶ 13 A reviewing court will apply a de novo review to the trial court’s interpretation of the terms of a trust. In re Estate of Lee, 2017 IL App (3d) 150651 , ¶ 31. In construing a trust, a court must determine the settlor’s intent and give effect to that intent if it is not contrary to public policy. Peck v. Froehlich, 367 Ill. App. 3d 225 , 231 (2006). To determine the settlor’s intent, courts examine the plain and ordinary meaning of the terms of the instrument, considering the entire document. Fifth Third Bank, N.A. v. Rosen, 2011 IL App (1st) 093533 , ¶ 23. “[T]he provisions of a will or trust should not be read in isolation.” Id. ¶ 14 What may constitute an abuse of discretion by the trustee depends on the terms of the discretion and on “ ‘the settlor’s purposes in granting the discretionary power and in creating the trust.’ ” Peck, 367 Ill. App. 3d at 231 (quoting Restatement (Third) of Trusts § 50(2), at 258 (2003)). The purpose of the trust and the grant of power to the trustee must be read together. Id. Where the settlor intends a particular purpose, it would be improper to ignore that purpose and conclude that the trustee had unfettered discretion. Id. However, it is possible for a trust to indicate an intent to bestow a gift only when the gift falls within the discretion of the trustee. See Rubinson v. Rubinson, 250 Ill. App. 3d 206 , 213-14 (1993) (rejecting a trust beneficiary’s argument that a recital of the settlor’s intent to express her love for her grandchildren and children prevented the trustees from divesting the beneficiary of her beneficial interest where the terms of the trust granted broad discretion to the trustees to decide whether and when to pay the trust beneficiaries). ¶ 15 To state a cause of action upon a theory of unjust enrichment, a plaintiff must allege that the defendant has unjustly retained a benefit to the plaintiff’s detriment and that defendant’s -4-  retention of the benefit violates fundamental principles of justice, equity, and good conscience. HPI Health Care Services, Inc. v. Mt. Vernon Hospital, Inc., 131 Ill. 2d 145 , 160 (1989). A plaintiff alleging an unjust enrichment claim may be seeking to recover a benefit the plaintiff gave directly to the defendant or one which was transferred to the defendant by a third party. See id. at 161 . To establish that the retention of a benefit conferred upon the defendant by a third-party constituted an unjust enrichment, a plaintiff must show that (1) the benefit should have been given to the plaintiff, but the third party mistakenly gave it to the defendant instead, (2) the defendant procured the benefit from the third party through some type of wrongful conduct, or (3) the plaintiff for some other reason had a better claim to the benefit than the defendant. Id. at 161-62 . ¶ 16 In this case, neither party contends that the language of the trust is ambiguous. Our review of the trust language indicates an intent by the testator for the trustee to have the sole discretion in determining whether and when to distribute a benefit to any of the beneficiaries. Here, the language of the trust indicated that James, as trustee, “shall pay” as much of the net income of the trust “as he shall in his sole discretion determine in installments of equal or unequal amounts at his sole discretion no less than quarterly” to Cynthia and to the testator’s granddaughters. The plaintiffs argue that this language required some amount of income be paid to all beneficiaries on at least a quarterly basis. We conclude, however, that the terms of the trust granted James authority to pay “so much of the net income of the trust estate as he shall in his sole discretion determine,” which included the authority to make no distributions. ¶ 17 The language of the trust also gave James, as trustee, the power to encroach upon the principal of the trust estate for the benefit of any of the beneficiaries “as in his sole discretion he shall determine.” Plaintiffs argue that the trustee’s power to encroach on the principal was restricted by the phrase “whether because of sickness, accident or otherwise, and for educational purposes.” Plaintiffs argue that the word “otherwise” is related to the word “accident” and, therefore, did not give James unfettered discretion to encroach upon the principal. Plaintiffs contend that the lack of a serial comma (also known as an “Oxford” comma) following the word “accident” limits the word “otherwise” as being related to the word “accident.” We, however, conclude that the word “otherwise” bears no such limitation. ¶ 18 “ ‘The serial comma [is the comma that] separates items, including the last from the next to last, in a list of more than two.’ ” Heyliger v. People, 66 V.I. 340 , 351 (2017) (quoting Bryan A. Garner, The Elements of Legal Style 15 (2d ed. 2002)). “[I]t is entirely common and accepted in American English for the final item in a list to not be preceded by a comma.” Princeton Excess & Surplus Lines Insurance Co. v. Hub City Enterprises, Inc., 418 F. Supp. 3d 1060 , 1066-67 (M.D. Fla. 2019). Although the use of a serial comma can aid in interpretation, “caution should be exercised in utilizing it as a controlling interpretive tool for the reason that its use is entirely optional and not universal.” Heyliger, 66 V.I. at 351-52. ¶ 19 In this case, the language of the trust gave James, as trustee, the authority to encroach upon the principal of the trust for the benefit of any of the beneficiaries “as in his sole discretion he shall determine.” James’s discretion to encroach upon the principal of the trust was not limited to education, accident, or sickness. He was also authorized to “otherwise” encroach upon the principal to benefit a beneficiary. The term “otherwise” is listed within a series with “sickness” and “accident.” Thus, James had the authority to encroach upon the principal of the trust for the benefit of Cynthia as in his sole discretion he determined, even if not for specifically for sickness, accident, or education. -5- ¶ 20 Consequently, plaintiffs cannot show that (1) a benefit should have been given to them but was mistakenly given to Cynthia, (2) Cynthia procured a benefit from James through wrongful conduct, or (3) plaintiffs had a better claim to the benefit than Cynthia. Therefore, the trial court did not err in entering a judgment in favor of Cynthia’s estate and against plaintiffs on count IV for unjust enrichment. ¶ 21 III. CONCLUSION ¶ 22 The judgment of the circuit court of Peoria County is affirmed. ¶ 23 Affirmed. -6-

2020-12-04 00:00:23.693976+00

http://www.ca10.uscourts.gov/opinions/20/20-1309.pdf

FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit FOR THE TENTH CIRCUIT December 3, 2020 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA, Plaintiff - Appellee, v. No. 20-1309 (D.C. No. 1:19-CR-00027-RM-1) RICHARD ANGEL GONZALES, (D. Colo.) Defendant - Appellant. _________________________________ ORDER AND JUDGMENT* _________________________________ Before HARTZ, KELLY, and BACHARACH, Circuit Judges. _________________________________ This matter is before the court on the government’s motion to enforce the appeal waiver in Richard Angel Gonzales’s plea agreement. We grant the government’s motion and dismiss the appeal.1 Gonzales pleaded guilty to assault on a federal officer in violation of 18 U.S.C. § 111 (a)(1) and (b), and the district court sentenced him to 77 months’ imprisonment. Although his plea agreement contained a broad appeal waiver, Gonzales filed an appeal. The government now seeks to enforce that waiver. * This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 1 Although this appeal was consolidated with Appeal No. 20-1308 for procedural purposes, our disposition applies to the present appeal only.  In reviewing a motion to enforce an appeal waiver, we consider: “(1) whether the disputed appeal falls within the scope of the waiver of appellate rights; (2) whether the defendant knowingly and voluntarily waived his appellate rights; and (3) whether enforcing the waiver would result in a miscarriage of justice.” United States v. Hahn, 359 F.3d 1315 , 1325 (10th Cir. 2004) (en banc) (per curiam). The miscarriage-of-justice exception applies: “[1] where the district court relied on an impermissible factor such as race, [2] where ineffective assistance of counsel in connection with the negotiation of the waiver renders the waiver invalid, [3] where the sentence exceeds the statutory maximum, or [4] where the waiver is otherwise unlawful.” Id. at 1327 (internal quotation marks omitted). In response to the government’s motion, Gonzales, through counsel, acknowledges that the conditions under Hahn for enforcing the waiver are satisfied. See Resp. at 2-3 (stating that “it cannot be contested that this appeal falls within the scope of the appeal waiver in the plea agreement,” that “the record does not show any evidence that Gonzales did not knowingly and voluntarily waive his appellate rights,” and that “the district court did not rely upon an impermissible factor and the sentence was within the statutory maximum”).2 He contends only that “[t]he record here is insufficient to fully consider” whether Gonzales received ineffective assistance of 2 Gonzales does not contend “that the waiver is otherwise unlawful.” Hahn, 359 F.3d at 1327 . We thus do not address this component of the miscarriage-of- justice exception. See United States v. Porter, 405 F.3d 1136 , 1143 (10th Cir. 2005) (noting the court need not address an uncontested Hahn factor). 2 counsel. Id. at 3. He therefore requests that “dismissal of this appeal be without prejudice to his asserting ineffective assistance of counsel in a later §2255 motion.” Id. We have recognized that “a defendant must generally raise claims of ineffective assistance of counsel in a collateral proceeding, not on direct review,” including “where a defendant seeks to invalidate an appellate waiver based on ineffective assistance of counsel.” United States v. Porter, 405 F.3d 1136 , 1144 (10th Cir. 2005). Based on the response from Gonzales’s counsel as well as our independent review of the record, we grant the government’s motion to enforce the appeal waiver and dismiss this appeal. Entered for the Court Per Curiam 3

2021-01-27 07:15:09.819639+00

http://www.search.txcourts.gov/RetrieveDocument.aspx?DocId=17870&Index=%5c%5c10%2e20%2e4%2e7%5cTamesIndexes%5ccoa05%5cOpinion

Dismissed and Opinion Filed January 19, 2021 In The Court of Appeals Fifth District of Texas at Dallas No. 05-20-00401-CV LRF1 DALLAS LOGISTICS 1 LLC, Appellant V. CITY OF CARROLLTON AND BRETT KING, BUILDING OFFICIAL OF THE CITY, IN HIS OFFICIAL CAPACITY, Appellees On Appeal from the 14th Judicial District Court Dallas County, Texas Trial Court Cause No. DC-19-09123 MEMORANDUM OPINION Before Justices Partida-Kipness, Pedersen, III, and Goldstein Opinion by Justice Partida-Kipness Before the Court is the parties’ joint motion to dismiss the appeal based on settlement. See TEX. R. APP. P. 42.1(a). We grant the motion and dismiss the appeal. See id. /Robbie Partida-Kipness/ ROBBIE PARTIDA-KIPNESS 200401F.P05 JUSTICE  Court of Appeals Fifth District of Texas at Dallas JUDGMENT LRF1 DALLAS LOGISTICS 1 LLC, On Appeal from the 14th Judicial Appellant District Court, Dallas County, Texas Trial Court Cause No. DC-19-09123. No. 05-20-00401-CV V. Opinion delivered by Justice Partida- Kipness. Justices Pedersen, III and CITY OF CARROLLTON AND Goldstein participating. BRETT KING, BUILDING OFFICIAL OF THE CITY, IN HIS OFFICIAL CAPACITY, Appellees In accordance with this Court’s opinion of this date, we DISMISS the appeal. As agreed by the parties, we ORDER that each party bear its own costs of this appeal. Judgment entered this 19th day of January, 2021. –2–

2020-06-05 15:00:15.537496+00

http://www.ca2.uscourts.gov/decisions/isysquery/bef8bf6f-5917-43cf-8e9c-2ba59c4b1fb3/3/doc/19-1649_opn.pdf

19-1649-cv Ortiz v. Ciox Health LLC UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term 2019 (Argued: March 9, 2020 Decided: June 5, 2020) Docket No. 19-1649-cv HECTOR ORTIZ, in his capacity as Temporary Administrator of the Estate of Vicky Ortiz, individually and on behalf of all others similarly situated, Plaintiff-Appellant, v. CIOX HEALTH LLC, successor in interest to IOD INC., and THE NEW YORK AND PRESBYTERIAN HOSPITAL, Defendants-Appellees, IOD INC. and COLUMBIA PRESBYTERIAN MEDICAL CENTER, Defendants. ∗ ∗ The Clerk of the Court is respectfully directed to amend the official caption to conform to the above.  ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK Before: CHIN, SULLIVAN, AND NARDINI, Circuit Judges. Appeal from a judgment of the United States District Court for the Southern District of New York (Cote, J.) in favor of defendants-appellees dismissing plaintiff-appellant's claims for damages for violation of New York Public Health Law § 18(2)(e), which provides that health care providers may impose only a "reasonable charge," not to exceed "seventy-five cents per page," for copies of medical records. The district court held that Section 18(2)(e) does not provide a private right of action. DECISION RESERVED AND QUESTION CERTIFIED. SUE J. NAM (Michael R. Reese and George V. Granade, on the brief), Reese LLP, New York, New York, for Plaintiff-Appellant. JOHN HOUSTON POPE, Epstein Becker & Green, P.C., New York, New York, for Defendant-Appellee The New York and Presbyterian Hospital. -2-  JAY P. LEFKOWITZ, Kirkland & Ellis LLP, New York, New York (Jodyann Galvin, Hodgson Russ LLP, Buffalo, New York, on the brief), for Defendant- Appellee Ciox Health LLC, successor in interest to IOD, Inc. ___________ PER CURIAM: Pursuant to Section 18 of the New York Public Health Law, patients in New York State have a right to access their medical records. Health care providers may impose a "reasonable charge" for copies of such records, but the charge may not exceed "seventy-five cents per page." N.Y. Pub. Health Law § 18 (2)(e). In this case, plaintiff-appellant Hector Ortiz ("Ortiz"), as temporary administrator of the estate of Vicky Ortiz ("Ms. Ortiz"), sues defendants- appellees The New York and Presbyterian Hospital ("NYPH") and Ciox Health LLC ("Ciox") for damages for purported violations of Section 18(2)(e). The district court (Cote, J.) dismissed the claims, concluding that no private cause of action exists for violations of Section 18(2)(e). Ortiz appeals. An unresolved question of New York law is presented: Whether Section 18(2)(e) of the New York Public Health Law provides a private right of action. Because this unresolved question implicates significant state interests -3- and is determinative of this appeal, we reserve decision and certify the question to the New York Court of Appeals. BACKGROUND The facts alleged in the First Amended Complaint are assumed to be true for purposes of this appeal. See Cruz v. TD Bank, N.A., 711 F.3d 261 , 264 (2d Cir. 2013). On or about October 26, 2016, counsel for Ms. Ortiz requested her medical records from NYPH for use in pending litigation. NYPH had arranged for IOD, Inc. ("IOD"), a predecessor in interest to Ciox, to fulfill requests for copies of medical records and to bill patients for that service. IOD provided Ms. Ortiz her medical records, charging her $1.50 per page for the copies. Ms. Ortiz's attorney informed NYPH that, pursuant to Section 18, it could not charge her more than $0.75 a page. Ms. Ortiz nevertheless paid the overcharge because she needed the records for her lawsuit. Shortly after paying the bill, Ms. Ortiz filed the instant action in state court, and, soon thereafter, Ciox refunded the amount charged in excess of the statutory maximum. On May 30, 2017, the case was removed to the court below. After Ms. Ortiz filed an amended complaint, Ciox and NYPH moved to dismiss. By -4- opinion and order dated February 22, 2018, the district court granted the motions as to all claims except the Section 18 claim. Thereafter, Ms. Ortiz passed away and Ortiz was substituted into the case in her stead. On October 31, 2018, Ciox and NYPH filed motions for judgment on the pleadings to dismiss the remaining cause of action. By opinion and order entered May 7, 2019, the district court granted the motions on the ground that Section 18(2)(e) does not provide a private cause of action. Judgment was entered the same day, and this appeal followed. DISCUSSION Ortiz argues that the district court erred in concluding that there was no private right of action under Section 18. As discussed further below, we reserve decision and certify to the New York Court of Appeals because the issue turns on an important and unanswered question of New York law and we are unable to predict how the Court of Appeals would rule. I. Public Health Law § 18 Section 18 of the Public Health Law provides that a "qualified person" has a right of access to "patient information" from a "health care provider." N.Y. Pub. Health Law § 18 (2)(d). It further provides that "[t]he -5- provider may impose a reasonable charge for all inspections and copies, not exceeding the costs incurred by such provider, provided . . . [that] the reasonable charge for paper copies shall not exceed seventy-five cents per page." Id. § 18(2)(e). Though Section 18 is silent as to the existence of a private right of action, the Legislature expressly provided for enforcement remedies in the Public Health Law: fines and an Article 78 proceeding. Section 12 provides that violations of the Public Health Law may result in a civil penalty, imposed by the Commissioner of Health and payable to the state. See id. § 12(1)(a), (c) (noting that such penalties may not exceed $2,000, except where the violation results in "serious physical harm to any patient," in which case the penalty may be increased up to $10,000); see also id. § 12(5) (authorizing the attorney general to seek injunctive relief upon request by the Commissioner of Health). 1 Section 13 1 Section 12(6), revised effective April 1, 2020, establishes that "[i]t is the purpose of this section to provide additional and cumulative remedies, and nothing herein contained shall abridge or alter rights of action or remedies now or hereafter existing." N.Y. Pub. Health Law § 12 (6). This revision does not resolve the issue of the existence of an implied cause of action. Cf. Lawrence v. State, 688 N.Y.S.2d 392 , 395-96 (Ct. Cl. 1999) (noting, in response to a similar provision in the Public Officers Law, that "[w]here . . . the Legislature addressed the issue of civil remedies and chose not to clearly create a new private right of action in the statute, it would be imprudent for a court to add by implication a provision that it is reasonable to assume the Legislature intentionally omitted"). -6- provides that private citizens, among others, may bring an Article 78 proceeding to enforce compliance with the relevant provisions of the Public Health Law. See id. § 13. 2 Under New York law, where a statute does not contain an express grant of a private right of action, a plaintiff "can seek civil relief in a plenary action based on a violation of the statute 'only if a legislative intent to create such a right of action is fairly implied in the statutory provisions and their legislative history.'" Cruz v. T.D. Bank, N.A., 22 N.Y.3d 61 , 70 (2013) (quoting Carrier v. Salvation Army, 88 N.Y.2d 298 , 302 (1996)). This determination is made by considering: "(1) whether the plaintiff is one of the class for whose particular benefit the statute was enacted; (2) whether recognition of a private right of action would promote the legislative purpose; and (3) whether creation of such a 2 Section 18 contains additional provisions that bear on the availability of remedies. See id. §§ 18(3)(f) (where access to information is denied, providing right to commence special proceeding in Supreme Court to require provider to make information available), 18(11) ("No proceeding shall be brought or penalty assessed, except as provided for in this section, against a health care provider, who in good faith, denies access to patient information."), 18(12) ("No health care provider shall be subject to civil liability arising solely from granting or providing access to any patient information in accordance with this section."). -7- right would be consistent with the legislative scheme." Sheehy v. Big Flats Cmty. Day, Inc., 73 N.Y.2d 629 , 633-34 (1989). 3 II. Certification We may certify a question to the New York Court of Appeals where that court "has not spoken clearly on an issue and we are unable to predict, based on other decisions by New York courts, how the Court of Appeals would answer a certain question." Tire Eng'g & Distribution L.L.C. v. Bank of China Ltd., 740 F.3d 108 , 114 (2d Cir. 2014) (internal quotation marks omitted); see also 22 N.Y.C.R.R. § 500.27(a). Our decision to certify a question to the Court of Appeals is discretionary; in exercising that discretion, we consider whether: (1) the New York Court of Appeals has not squarely addressed an issue and other decisions by New York courts are insufficient to predict how the Court of Appeals would resolve it; (2) the statute's plain language does not indicate the answer; (3) a decision on 3 The parties do not dispute that Ms. Ortiz was a qualified person under Section 18, and that she was a member of the class of persons for whose benefit the statute was enacted and thus meets the first Sheehy factor. The district court concluded that the second and third Sheehy factors were not met here. As to promoting the legislative purpose, after reviewing the legislative history, the district court concluded that it was "debatable" that recognition of a private right of action would promote the legislative purpose of controlling patient costs because the threat of civil lawsuits against providers would likely increase medical costs. App'x at 87-88. As to consistency with the legislative scheme, the district court concluded that, in light of the specific administrative and judicial remedies established in the Public Health Law, it is likely that the Legislature considered and rejected a private right of action for Section 18. -8-  the merits requires value judgments and important public policy choices that the New York Court of Appeals is better situated than we to make; and (4) the question certified will control the outcome of the case. Simmons v. Trans Express Inc., 955 F.3d 325 , 331 (2d Cir. 2020) (internal quotation marks omitted). Here, each of these factors weighs in favor of certification. First, the Court of Appeals has not decided the specific question at issue and there is insufficient precedent from other New York courts to predict how the Court of Appeals would resolve the issue. See CFTC v. Walsh, 618 F.3d 218 , 231 (2d Cir. 2010) (observing that certification is appropriate where an issue has not been litigated often enough in New York courts to give rise to "sufficient precedents . . . to make a determination concerning [its] proper outcome" (internal quotation marks and alterations omitted)). Ortiz relies principally on a decision of the Appellate Division, First Department, which indeed held that there is a private right of action under Section 18. See Feder v. Staten Island Univ. Hosp., 711 N.Y.S.2d 719 (1st Dep't 2000). In Feder, however, the First Department upheld the trial court's holding that plaintiffs could assert a private right of action under Section 18 in one sentence, without analysis, as it simply held that it was affirming "for the reasons stated by [the trial court]." Id. The parties do not cite -9- to any other New York cases directly on point. See Ruzhinskaya v. HealthPort Techs., LLC, 942 F.3d 69 , 73 (2d Cir. 2019) (noting absence of authoritative state court interpretations of Section 18). In the absence of clear guidance from the New York Court of Appeals, we are reluctant to conclude that the First Department's one-sentence discussion resolves the matter. See CFTC, 618 F.3d at 231 . Second, the plain language of Section 18 does not directly speak to the question at issue. Third, the answer to the question turns on a policy determination that the Court of Appeals is best suited to make. As the district court discussed, in amending the Public Health Law, the legislature weighed a number of competing interests: the right of patients to access their medical information; the burden that would be imposed on medical providers as a consequence of this access (including the cost of providing access and the threat of litigation); and the impact on the Medicaid system. As noted above, the legislature did provide certain remedies for violations of Section 18, and the availability of a private cause of action for damages in addition to the express remedies could, of course, affect the balance the legislature endeavored to strike. The question, then, is - 10 - what did the legislature intend, and given the competing state interests at stake, that question is better answered by the New York Court of Appeals. Finally, the answer will control the outcome of the case. Not only will the answer be determinative of Ortiz's statutory claim, but "resolution of the certified question may well dispose of the case entirely." Ajdler v. Province of Mendoza, 890 F.3d 95 , 105 (2d Cir. 2018) (internal quotation marks omitted). Specifically, a New York Court of Appeals decision that no private cause of action exists under Section 18 would be fatal to Ortiz"s unjust enrichment claim -- the only other claim he raises on appeal. See Broder v. Cablevision Sys. Corp., 418 F.3d 187 , 203 (2d Cir. 2005) (acknowledging that "[w]hen a plaintiff does not possess a private right of action under a particular statute, and does not allege any actionable wrongs independent of the requirements of the statute, a claim for unjust enrichment is properly dismissed as an effort to circumvent the legislative preclusion of private lawsuits for violation of the statute" (internal quotation marks and alterations omitted)). CONCLUSION For the reasons stated above, we reserve decision and certify the following question to the New York Court of Appeals: - 11 -  Does Section 18(2)(e) of the New York Public Health Law provide a private right of action for damages when a medical provider violates the provision limiting the reasonable charge for paper copies of medical records to $0.75 per page? The Court of Appeals is not limited to the particular question stated. Rather, the Court of Appeals may modify the certified question and may direct the parties to address any other issues that may pertain to the circumstances presented in this appeal. This panel retains jurisdiction and will consider any issues that remain on appeal once the New York Court of Appeals has ruled. It is therefore ORDERED that the Clerk of this Court transmit to the Clerk of the Court of Appeals of the State of New York a Certificate, as set forth below, together with complete sets of briefs and appendices, and the records filed in this Court by the parties. CERTIFICATE The foregoing is hereby certified to the Court of Appeals of New York pursuant to Second Circuit Local Rule 27.2 and New York Codes, Rules, and Regulations Title 22, § 500.27(a), as ordered by the United States Court of Appeals for the Second Circuit. - 12 -

2020-12-04 06:07:56.563048+00

https://www.nebraska.gov/apps-courts-epub/public/viewOpinion?docId=N00007494PUB

Nebraska Supreme Court Online Library www.nebraska.gov/apps-courts-epub/ 12/04/2020 12:07 AM CST - 862 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports IN RE INTEREST OF SETH C. Cite as 307 Neb. 862 In re Interest of Seth C., a child under 18 years of age. State of Nebraska, appellee, v. Seth C., appellant. ___ N.W.2d ___ Filed November 20, 2020. No. S-20-026. 1. Juvenile Courts: Appeal and Error. An appellate court reviews juve- nile cases de novo on the record and reaches its conclusions indepen- dently of the juvenile court’s findings. 2. Statutes: Appeal and Error. Statutory interpretation is a question of law, which an appellate court resolves independently of the trial court. 3. Statutes: Legislature: Intent. In construing a statute, a court must determine and give effect to the purpose and intent of the Legislature as ascertained from the entire language of the statute considered in its plain, ordinary, and popular sense. 4. Statutes. A court must give effect to all parts of a statute, and if it can be avoided, no word, clause, or sentence will be rejected as superfluous or meaningless. 5. Statutes: Legislature: Intent. Components of a series or collection of statutes pertaining to a certain subject matter are in pari materia and should be conjunctively considered and construed to determine the intent of the Legislature, so that different provisions are consistent, har- monious, and sensible. 6. Juvenile Courts: Minors. The foremost purpose and objective of the Nebraska Juvenile Code is to promote and protect the juvenile’s best interests. 7. ____: ____. The Nebraska Juvenile Code must be liberally construed to serve the best interests of juveniles who fall within it. 8. Juvenile Courts: Restitution: Words and Phrases. The word “includ- ing,” as used in Neb. Rev. Stat. § 43-286 (1)(a) (Supp. 2017), introduces examples, not an exhaustive list, and connotes that the provided list  - 863 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports IN RE INTEREST OF SETH C. Cite as 307 Neb. 862 of components is not exhaustive and that there are other items includ- able that are not specifically enumerated. 9. Juvenile Courts: Restitution. The Nebraska Juvenile Code shall be construed to offer selected juveniles the opportunity to take direct per- sonal responsibility for their individual actions by reconciling with the victims and fulfilling the terms of any resulting agreement which may require restitution and community service. 10. ____: ____. Neb. Rev. Stat. § 43-286 (1)(a) (Supp. 2017) contains a non- exhaustive list of what terms and conditions a juvenile court may order. 11. Juvenile Courts. A juvenile court has broad discretion as to the disposi- tion of a delinquent child. 12. ____. A juvenile court proceeding is not a prosecution for a crime, but a special proceeding that serves as an ameliorative alternative to a crimi- nal prosecution. 13. Juvenile Courts: Restitution: Records. Strict rules of evidence do not apply at dispositional hearings in juvenile cases, but a court’s order imposing restitution must still be supported by the record. 14. Juvenile Courts: Restitution. A restitution order imposed in an appro- priate manner serves the salutary purpose of making the offender under- stand that he or she has harmed not merely society in the abstract, but also individual human beings, and that he or she has a responsibility to the victim. This salutary purpose would be undermined by the imposi- tion of a restitution order that the juvenile is financially unable to pay. 15. Juvenile Courts: Restitution: Proof. When a juvenile court enters an order of restitution, the court may use any rational method of fixing the amount of restitution, as long as the amount is rationally related to the proofs offered at the dispositional hearing, and the amount is consistent with the purposes of education, treatment, rehabilitation, and the juve- nile’s ability to pay. Appeal from the Separate Juvenile Court of Lancaster County: Reggie L. Ryder, Judge. Affirmed. Joe Nigro, Lancaster County Public Defender, and Megan Kielty for appellant. No appearance for appellee. Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.  - 864 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports IN RE INTEREST OF SETH C. Cite as 307 Neb. 862 Funke, J. Seth C. appeals an order of restitution entered by the sepa- rate juvenile court after Seth admitted to an amended allega- tion of disturbing the peace and quiet of another person. As a term of probation, the juvenile court ordered Seth to pay $500 in restitution for the victim’s medical expenses. Seth argues that the Nebraska Juvenile Code does not authorize a juvenile court to order restitution for medical expenses incurred by a victim. 1 We disagree and affirm the order of restitution for medical expenses. BACKGROUND On August 9, 2018, the State filed a juvenile petition in the separate juvenile court of Lancaster County alleging that Seth was a juvenile as defined under Neb. Rev. Stat. § 43-247 (Reissue 2016) and further alleging that Seth had committed conduct that would constitute assault in the third degree. Seth denied the allegation in the petition. On October 4, 2018, the juvenile petition was amended by interlineation to allege that Seth disturbed the peace and quiet of another person. That same day, Seth entered an admission to the amended petition. On October 16, the juvenile court entered an order of adjudication finding Seth to be a juvenile as defined by § 43-247(1), continuing his disposition to a later date and ordering the preparation of a predisposition investiga- tion report. According to police reports included with the predisposi- tional report, Seth and the victim were occupants in different vehicles involved in a road rage incident. Once both vehicles came to a stop, Seth got out of his vehicle, went to the vic- tim’s vehicle, and began punching the victim while the victim was still sitting in his vehicle. The victim was punched four to five times in the head before he got out of his vehicle and confronted Seth. Seth claimed that it was a mutual fight and 1 See Neb. Rev. Stat. § 43-286 (1)(a)(i) (Supp. 2017).  - 865 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports IN RE INTEREST OF SETH C. Cite as 307 Neb. 862 that the victim’s hand was injured when the victim punched a concrete median. In June 2019, the juvenile court entered an “Agreement and Order of Probation” placing Seth on probation and outlining specific terms and conditions Seth was to complete. One of the terms required Seth to “pay restitution as ordered.” On December 12, 2019, a restitution hearing was held where evidence in the form of medical bills was received and testi- mony from the victim’s mother was given. The medical bills showed that the victim received treatment from a local hospi- tal and that $3,330.96 was still due and owing. The victim’s mother testified that though insurance paid for a portion of the medical expenses, the remaining balance had not been paid. Additionally, a victim impact statement was received which indicated that the medical expenses stemmed from the injury the victim sustained during the altercation with Seth. Seth testified that at the time of the hearing, he was 18 years of age and would be turning 19 in January 2020. He further testified that he was working approximately 40 hours per week at a wage of $10 per hour, for a net income of $800 to $900 per month. Seth also testified that he was living in an apartment with his girlfriend and received no financial support from his parents. He explained that he pays his own bills, which include monthly expenses of $375 for rent, $60 for his phone, and other costs for groceries and clothing. Because Seth was less than a month from turning 19 years old and because of Seth’s current financial status, the court acknowledged that it would be unrealistic to expect Seth to pay the full amount of restitution, $3,330.96, in the time he had remaining on probation. However, the court determined it would be in Seth’s rehabilitative interests to make a good faith effort to make the victim and his family whole. In response, Seth argued that under § 43-286, the juvenile court was autho- rized to order restitution for stolen or damaged property, but was not authorized to order restitution for medical expenses incurred as the result of physical damages (bodily injury).  - 866 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports IN RE INTEREST OF SETH C. Cite as 307 Neb. 862 In its order filed on December 13, 2019, the juvenile court rejected Seth’s argument. The court stated that the “very nature of the statute gives the court broad discretion as to what those terms may be.” The court opined that the inclusion of the pro- visions of restitution and community service programs in the statute provides mere examples of what the court may order, not the exclusive list of what the court is authorized to order. The court ordered Seth to pay restitution to the victim in the amount of $500, again noting that although Seth should be required to pay the full amount of restitution, the circumstances did not allow for it. Seth appeals. ASSIGNMENTS OF ERROR Seth assigns, restated, renumbered, and consolidated, that the juvenile court erred in finding that (1) an order of restitu- tion for bodily injury was authorized by statute, (2) there was sufficient evidence to support an order of restitution, and (3) Seth had the ability to pay the ordered restitution. STANDARD OF REVIEW [1,2] An appellate court reviews juvenile cases de novo on the record and reaches its conclusions independently of the juvenile court’s findings. 2 Statutory interpretation is a question of law, which an appellate court resolves independently of the trial court. 3 ANALYSIS Statutory Authority In his first assignment of error, Seth asserts that the lan- guage of § 43-286 authorizes a juvenile court to order res- titution only for any property stolen or damaged and that as such, the court lacked the requisite statutory authority to order Seth to pay restitution for the medical expenses the victim incurred. We recognize that as a statutorily created court of 2 In re Interest of Octavio B. et al., 290 Neb. 589 , 861 N.W.2d 415 (2015). 3 In re Interest of Marcella G., 287 Neb. 566 , 847 N.W.2d 276 (2014).  - 867 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports IN RE INTEREST OF SETH C. Cite as 307 Neb. 862 limited and special jurisdiction, a juvenile court has only such authority as has been conferred on it by statute. 4 But we dis- agree that the statutes authorizing dispositions in juvenile cases are as limited as Seth argues. [3-5] A court determines a statute’s meaning based on its text, context, and structure. 5 In construing a statute, a court must determine and give effect to the purpose and intent of the Legislature as ascertained from the entire language of the statute considered in its plain, ordinary, and popular sense. 6 A court must give effect to all parts of a statute, and if it can be avoided, no word, clause, or sentence will be rejected as superfluous or meaningless. 7 Components of a series or collec- tion of statutes pertaining to a certain subject matter are in pari materia and should be conjunctively considered and construed to determine the intent of the Legislature, so that different pro- visions are consistent, harmonious, and sensible. 8 [6,7] As we have routinely said, the foremost purpose and objective of the Nebraska Juvenile Code is to promote and protect the juvenile’s best interests. 9 Additionally, the Nebraska Juvenile Code must be liberally construed to serve the best interests of juveniles who fall within it. 10 Section 43-286, in relevant part, provides: (1) When any juvenile is adjudicated to be a juvenile described in subdivision (1), (2), or (4) of section 43-247: (a)(i) . . . The court may continue the dispositional por- tion of the hearing, from time to time upon such terms 4 See In re Interest of Donald B. & Devin B., 304 Neb. 239 , 933 N.W.2d 864 (2019). 5 Ash Grove Cement Co. v. Nebraska Dept. of Rev., 306 Neb. 947 , 947 N.W.2d 731 (2020). 6 Id. 7 Id. 8 First State Bank Neb. v. MP Nexlevel, ante p. 198, 948 N.W.2d 708 (2020). 9 In re Interest of Veronica H., 272 Neb. 370 , 721 N.W.2d 651 (2006). 10 See id. See, also, Neb. Rev. Stat. § 43-2 ,128 (Reissue 2016).  - 868 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports IN RE INTEREST OF SETH C. Cite as 307 Neb. 862 and conditions as the court may prescribe, including an order of restitution of any property stolen or damaged or an order requiring the juvenile to participate in commu- nity service programs, if such order is in the interest of the juvenile’s reformation or rehabilitation . . . . [8] Section 43-286(1)(a) uses the word “including” when it lists what the court may order as part of the disposition. We note that it is a widely accepted interpretation that the word “including” introduces examples, not an exhaustive list. 11 In fact, we have previously stated that the word “include,” as used in a statute, connotes that the provided list of components is not exhaustive and that there are other items includable that are not specifically enumerated. 12 Thus, it is clear and consist­ ent with our jurisprudence that the word “including,” as used in § 43-286(1)(a), connotes that the provided list of terms and conditions that the court may order is not exhaustive and that there may be other terms and conditions that are includ- able but not specifically enumerated in the statute. In other words, § 43-286(1)(a) does not limit the types of restitution a juvenile court may order to only restitution for property stolen or damaged. [9] Further, Neb. Rev. Stat. § 43-246 (3) (Reissue 2016) provides that the Nebraska Juvenile Code shall be construed to reduce the possibility of juveniles committing future law ­violations through the provision of social and rehabili- tative serv­ices to such juveniles. Additionally, according to § 43-246(4), the Nebraska Juvenile Code shall be construed to offer selected juveniles the opportunity to take direct personal responsibility for their individual actions by reconciling with the victims and fulfilling the terms of any resulting agreement which may require restitution and community service. 11 Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 132 (2012). 12 State v. Jedlicka, 305 Neb. 52 , 938 N.W.2d 854 (2020). See Stephens v. Stephens, 297 Neb. 188 , 899 N.W.2d 582 (2017).  - 869 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports IN RE INTEREST OF SETH C. Cite as 307 Neb. 862 Because §§ 43-246(3) and (4) and 43-286(1)(a) all relate to the juvenile code, § 43-286(1)(a) must be construed so as to maintain a sensible and consistent scheme with § 43-246(3) and (4). We believe it is consistent with the language of § 43-246(3), which makes reference to reducing the possibil- ity of the juvenile’s committing additional law violations, and § 43-246(4), which makes reference to requiring juveniles to make amends in various ways, including paying restitution, to interpret the reference to restitution for stolen or damaged property as merely one example of an offense for which the juvenile court could order restitution. [10] As a result, we conclude that § 43-286(1)(a) contains a nonexhaustive list of what terms and conditions a juvenile court may order when continuing disposition and that statuto- rily, the court was authorized to order Seth to pay restitution for medical expenses. However, we must also consider whether ordering restitution was in the interest of Seth’s reformation and rehabilitation. [11,12] As we previously indicated, § 43-286(1)(a) allows a juvenile court to prescribe certain terms and conditions as long as it is in the interest of the juvenile’s reformation or rehabili- tation. Additionally, a juvenile court has broad discretion as to the disposition of a delinquent child. 13 We have long recog- nized that a juvenile court proceeding is not a prosecution for a crime, but a special proceeding that serves as an ameliorative alternative to a criminal prosecution. 14 When liberally construing the Nebraska Juvenile Code, we conclude that requiring Seth to pay restitution for the victim’s medical bills is essential for Seth’s reformation and rehabilita- tion, because it gives Seth the opportunity to take direct per- sonal responsibility for his actions. Seth’s first assignment of error is without merit. 13 See In re Interest of J.M., 223 Neb. 609 , 391 N.W.2d 146 (1986). 14 In re Interest of Brandon M., 273 Neb. 47 , 727 N.W.2d 230 (2007).  - 870 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports IN RE INTEREST OF SETH C. Cite as 307 Neb. 862 Sufficiency of Evidence Seth’s second assignment of error contends that even if the juvenile court has the statutory authority to order restitution for medical expenses, the State presented insufficient evidence to support the award of restitution. In particular, Seth argues that there was insufficient evidence to find that the victim’s injuries were caused by Seth and that $500 was the appropriate amount of restitution. Seth is correct that there is evidence in the record that the victim’s injuries may have occurred when the victim struck a concrete median during the incident. Nonetheless, we conclude that the State presented sufficient evidence to prove the vic- tim’s physical injuries were caused by Seth. It is undisputed that Seth admitted to the allegation of dis- turbing the peace and quiet of another person stemming from the altercation with the victim. It is also undisputed that Seth was the initial physical aggressor in the incident, because the police reports show that Seth got out of his vehicle, walked over to the victim’s vehicle, and began punching the victim. Seth struck the victim four to five times before the victim got out of his vehicle and took Seth to the ground. As such, the record supports that the victim’s injuries were caused by Seth. As to the amount of the medical damages, Seth points to the fact that the medical bills do not indicate or list the victim’s injuries and that the only details regarding how the victim sus- tained the injuries, and the type of injuries the victim suffered, are found in the victim impact statement, which was filled out by the victim’s mother. Seth argues that the victim impact statement is hearsay and therefore not admissible evidence to be considered by the court. [13] According to Neb. Rev. Stat. § 43-283 (Reissue 2016), strict rules of evidence do not apply at dispositional hear- ings. As such, Seth’s hearsay argument lacks merit. However, we have said that despite § 43-283, a court’s order imposing restitution must still be supported by the record. 15 15 Id.  - 871 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports IN RE INTEREST OF SETH C. Cite as 307 Neb. 862 Here, the juvenile petition alleged that the incident occurred on April 10, 2018; the medical bills indicate that the victim received treatment that same day; and the victim’s mother testified that $3,330.96 of the medical bills remains outstand- ing. Additionally, despite the evidence as to the unpaid portion of the medical bills, the court ordered Seth to pay restitution only in the amount of $500. Therefore, we conclude that on the record before us, there is sufficient evidence to support the amount of restitution which Seth was required to pay to the victim. Seth’s second assignment of error has no merit. Ability to Pay Restitution Seth’s third assignment of error is that the juvenile court erred in finding he had the ability to pay the $500 in restitution. [14] We have previously stated that a restitution order “‘imposed . . . in an appropriate manner serves the salutary purpose of making the offender understand that he has harmed not merely society in the abstract but also individual human beings, and that he has a responsibility to’ the victim.” 16 We have also recognized that this “salutary purpose” would be undermined by the imposition of a restitution order that the juvenile is financially unable to pay. 17 [15] In In re Interest of Laurance S., 18 we noted that § 43-286(1)(a) does not prescribe any particular method by which to determine whether restitution is appropriate or the amount of restitution to be awarded. We further noted that when a juvenile court enters an order of restitution, the court should consider, among other factors, the juvenile’s earning 16 In re Interest of Laurance S., 274 Neb. 620 , 625, 742 N.W.2d 484 , 489 (2007) (quoting In re Brian S., 130 Cal. App. 3d 523 , 181 Cal. Rptr. 778 (1982)). 17 In re Interest of Laurance S., supra note 14. 18 Id.  - 872 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports IN RE INTEREST OF SETH C. Cite as 307 Neb. 862 ability, employment status, financial resources, and other obli- gations. 19 Ultimately, we concluded that juvenile courts may use any rational method of fixing the amount of restitution, as long as the amount is rationally related to the proofs offered at the dispositional hearing, and the amount is consistent with the purposes of education, treatment, rehabilitation, and the juve- nile’s ability to pay. 20 At the restitution hearing in this matter, Seth testified that he works around 40 hours per week, earns around $800 to $900 per month (after taxes), and pays approximately $435 in various bills. The order of restitution was filed on December 13, 2019, and because Seth would reach the age of majority in January 2020, the court ordered him to pay $500 by that date. Seth contends that the court was essentially asking him to pay an amount more than he could afford, thus undermining the salutary purpose of restitution. In the original order of probation, the court ordered Seth to pay restitution in an amount to be determined. At the December 2019 hearing, evidence substantiated the total amount of resti- tution to be $3,330.96. Based upon the short time Seth could remain on probation, the court reduced the amount of resti- tution to $500. Additionally, the evidence showed that after paying his monthly expenses, Seth had approximately $500 to $600 of disposable income remaining each month. As such, the court took into consideration the fact that Seth would not be able to pay the full amount of restitution of $3,330.96 and reduced the restitution to an amount Seth would be able to pay. Therefore, we conclude that the juvenile court ordered restitution in an amount rationally related to the proofs offered at the dispositional hearing and that the amount was consist­ ent with the purposes of education, treatment, rehabilitation, and the juvenile’s ability to pay. As such, the court did not 19 Id. 20 Id.  - 873 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports IN RE INTEREST OF SETH C. Cite as 307 Neb. 862 violate the salutary purpose of ordering Seth to pay restitution in the amount of $500. Seth’s third assignment of error has no merit. CONCLUSION We conclude that the language of § 43-286(1)(a) contem- plates a nonexhaustive list of examples of terms and conditions that a juvenile court may order, and thus the juvenile court had the authority to order restitution for medical expenses as long as such order was in the interest of the juvenile’s reformation or rehabilitation. We find there was sufficient evidence in the record to support a finding that Seth caused the victim’s inju- ries and to support the amount of restitution ordered, that Seth had the ability to pay the $500 in restitution, and that the order to pay such restitution was made in the interest of Seth’s refor- mation and rehabilitation. Accordingly, we affirm the order of the juvenile court. Affirmed.

2020-01-17 22:02:15.035093+00

Black

*121OPINION. Black: Petitioners in their petitions and amended petitions asserted the errors set forth in our opening statement and numbered one to seven, inclusive. They filed with their petitions the deficiency letters upon which such petitions were respectively based. They alleged in the petitions the facts which they expected to prove with respect to their various contentions. There is alleged in none of the petitions or amended petitions anything which would indicate that the Board does not possess jurisdiction to hear and determine the issues presented, nor is there anything in the evidence to show that *122the Board does not have jurisdiction. At the hearing counsel for the petitioners made the following statement: Ur. Weeks: Before proceeding with the trial, I want to make a suggestion of want of jurisdiction on the part of the Board over the tax liability of the wives in this case, upon the ground that there has been no deficiency letter sent to them. Your Honor will see from the amended petitions that the deficiency letter was addressed, respectively, to C. A. Bryan and wife and L. J. Bryan and wife, and in the calculations attached in the statement of the deficiency it is proposed in one lump sum, and upon the authority of the J. A. Staley ease, it seems to me there is no deficiency which is covered by the Board’s jurisdiction. It will be perceived that two objections were made to the letters— first, that they were addressed to “ 0. A. Bryan and wife ” and to “ L. J. Bryan and wife,” respectively, and, second, that these letters proposed a lump-sum deficiency against each husband and wife. The letters were issued pursuant to section 214 of the Revenue Act of 1926, the pertinent part of which reads: Sec. 274. (a) 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 (not counting Sunday as the sixtieth day) the taxpayer may file a petition with the Board of Tax Appeals for a redetermination of the deficiency. ⅜ * * It is first argued that instead of mailing two letters respondent should have mailed four letters — that is, one to each petitioner. It is not claimed that the letters were not sent by registered mail nor is it asserted that they were not mailed to the proper addresses. In this connection it is to be noted that in their respective returns for the year 1919, the only returns filed in evidence, C. A. Bryan and his wife gave the same address, as also did L. J. Bryan and his wife. Not only were the letters mailed to the proper addresses but they were actually received by the very persons to whom they were addressed and within the 60-day period all the addressees filed petitions before the Board seeking a review of the deficiencies therein asserted. Petitioners rely on J. A. Staley, 9 B. T. A. 932. We do not think that case is controlling in the instant case. We hold that the deficiency letters sufficiently complied with the statute and that we have jurisdiction to hear these appeals. There is no merit to the contention that the deficiency letters asserted a lump-sum deficiency against each husband and wife. The deficiency letters clearly showed what deficiencies were asserted against each taxpayer and are a sufficient compliance with the statutes. Cf. American Auto Trimming Co. v. Commissioner, 37 Fed. (2d) 801. *123On the merits of the case it is contended by the respondent that the assignment by the Bryan brothers to their wives of their interests in the Hobbs lease was not made in good faith and was ineffectual for the purpose of avoiding taxation on the profit made in the acquisition and sale of the lease. The facts in connection with this transaction have been fully stated in our foregoing findings of fact, and need not be repeated here. It is clear, to us that notwithstanding the methods used by the Bryans in transferring the Hobbs lease to their wives and they in turn, joined by their husbands fro forma,, transferring it to the Livingston Oil Corporation, there was a profit of approximately $400,000 to the two marital communities, and this profit is taxable to the respective parties in the years when the respective payments were received. The transfer by the Bryans to their wives was made after they had already entered into a binding contract to sell the lease to the Livingston Oil Corporation for a consideration of $415,000. All the terms of sale had been agreed upon and $25,000 of the purchase price had been paid to the Bryan husbands. The attorneys for the Livingston Oil Corporation had approved the title to the Hobbs lease in O. A. and L. J. Bryan, and actual drilling on the lease had begun by the purchaser, the Livingston Oil Corporation, and the sale was thereby consummated. Under these circumstances, the assignment by the Bryans to their wives of the Hobbs lease and their subsequent assignment to the Livingston Oil Corporation was entirely ineffective to defeat the tax on the original transaction and we so hold. John S. Gullborg, 5 B. T. A. 628; Taylor Oil & Gas Co., 15 B. T. A. 609; B. P. Bailey et al., 18 B. T. A. 105; Davidson & Case Lumber Co. v. Motter, 14 Fed. (2d) 137. Respondent assessed fraud penalties against petitioners for the year 1919. The burden of proof to establish fraud is upon respondent and after a careful reading of all the evidence, we conclude that such burden has not been sustained. So much of the deficiencies for 1919 as consist of fraud penalties asserted under section 250 (b) of the Revenue Act of 1918 are disapproved and should be eliminated. The last question presented is what taxable gain, if any, petitioners made by reason of their acquisition of stock in the Bryan Oil Corporation, hereafter referred to as the Bryan Co. Respondent has determined that petitioner C. A. Bryan received stock of the Bryan Co. of the par value of $280,294.96 and that petitioner L. J. Bryan received stock of the same company of the par value of $211,013.71. He has further determined that the stock had a *124fair market value of par. He based his determination largely on the fact that during the period June, 1920, to April, 1921, Sibley & Co. and Ogilvy & Co. sold 184,959½ shares of the stock at par. They remitted to the Bryan Co. the net proceeds of the sale in the sum of $159,188.42. He contends that these sales show that the stock had a fair market value of 100 cents on the dollar. We are not impressed by this contention. The sales were made far from home and to persons who had no knowledge of the condition of the company. The sales were the result of high-pressure methods. The stock was often sold on the installment plan; other sales were made by taking other stock in exchange. The sales were made in small blocks and to farmers and factory operatives. Under the contract between these agents and the Bryan Co. the stock was to net the corporation 85 cents on the dollar and commissions were not to exceed 80 per cent of the sale price. These commissions were such as to promote sales at fictitious prices. The stock was never sold on a stock exchange and neither of the selling agents undertook to underwrite the stock. As said in Fruen Investment Co., 2 B. T. A. 542: “All these circumstances show conclusively to our minds that the stock was not considered worth par by the persons in best position to know its value.” We there held that sales similar to those under consideration did not prove market value. This is in harmony with the decisions of the courts. In Phillips v. United States, 12 Fed. (2d) 598 (affd. 24 Fed. (2d) 195), it is said: Tile test is the fair market value. This may be defined to be the value of the property in money as between one who wishes to purchase and one who wishes to sell; the price at which a seller willing to sell at a fair price, and a buyer willing to buy at a fair price, both having reasonable knowledge of the facts. (Italics supplied.) See also Heiner v. Crosby (C. C. A.), 24 Fed. (2d) 191. Applying the above to the facts before us, it can not be said that the farmers and factory operatives living in Illinois, Michigan, and Ohio who purchased or traded in for small lots of this stock had a reasonable or any knowledge of the condition of the Bryan Co. or of its properties or prospects. We take notice of the eagerness of some people to risk part of their earnings in oil, gold, and similar stock. To such people the question is not a matter of value but of speculation. It is a pertinent fact that no attempt was made at this time to sell this stock at par in the home market. Such a privilege as that was reserved for those who resided at a distance and who were not acquainted with the affairs of the company. Under these circumstances we are of opinion that the sales by Ogilvy and Sibley do not establish the market value of the stock. Nor are we impressed by the fact that the Bryans offered to buy out the Imperial stockholders at par. This will be discussed hereafter. The fact that petitioner *125L. J. Bryan, when he saw that the brokers could not sell the stock as contemplated, tried to dispose of some of his own stock at 50 cents and then at 25 cents and could find no purchaser does not show the market value of the stock in March and April, 1920. The fact that in October, 1921, the executive committee resolved that the selling price of the stock should thereafter be $1.50 per share is additional evidence of high-pressure methods. The stock could not then be sold at par. This is sufficient evidence that it could not be sold at a premium. Notwithstanding the fact that the sales of Sibley and Ogilvy did not establish the fair market value of the stock, we are of opinion that the stock had a real market value. There were large and valuable assets behind the stock which, in our opinion, gave it such value. In the absence of testimony of persons conversant with all the facts which go to make up value, we have the right to ascertain the value of property behind the stock or the value placed on the stock by persons who were in position to know its true value. Phillips v. United States, and Heiner v. Crosby, both supra. Here we have the stipulation in the contract between the Bryans and the trustees of the Imperial Co. In making that contract, the parties dealt at arm’s length. The Bryans had been acting in the management of the Imperial Co. and were thoroughly conversant with the values of its properties. In that contract it was expressly agreed that the net value of the assets of the Imperial Co. was the amount of $368,972.58. This value, placed upon these assets by the parties who possessed knowledge of all the facts and who made it the basis of their contract, carries far more weight than the testimony of expert witnesses given nine years after the event. To these assets the Bryans contributed two oil leases, which cost them $3,500. No oil was found on these properties and nothing occurred to enhance their value between the date of acquisition and the date they were transferred to the Bryan Co. We have found that their value was their cost. Adding the sum of $3,500 to the net value of the assets of the Imperial Co., we arrive at a total value of the assets of the Bryan Co. of $372,472.58. Against these assets stock was issued in shares of the par value of $1 each to the extent of 751,000 shares. On this basis we have found that the fair market value of each share was 49½ cents. At this point it is contended by petitioners that this value should be offset by the liability of the Bryans to redeem within a certain period the stock of the Imperial Co. at par and also within a certain additional period to redeem the stock of the Bryan Co. at par. On the other hand, respondent asserts that this agreement shows that the stock of the Bryan Co. was worth par. The contract was to redeem the stock of the Imperial Co. The further contract to redeem *126the stock of the Bryan Co. added nothing to this, since the stock of the old company was exchanged for the stock of the new, dollar for dollar par value. We have found that the net assets of the old company equaled the par value of its stock, with the result that the Bryans would lose nothing by such redemption whether they redeemed the new stock or the old. For the same reason, the contract does not show that the new stock was worth par. All that the old stockholders could receive was the value of their respective interests in the old company. What is more vital from the Bryans’ standpoint is that before the organization of the Bryan Co. they contracted with Sibley and Ogilvy to sell the stock of the new company for the purpose of meeting this very obligation and then shifted the burden of their agreement to the Bryan Co., so that they not only could not have lost by such redemption, but in fact had shifted the obligation to redeem onto the new corporation and had entered into a contract to sell treasury stock to others for the very purpose of enabling the company to meet this obligation. We find no merit in these contentions of petitioners and respondent and adhere to the value which we have placed upon the stock of the Bryan Co. in our findings of fact. Upon final computation the basis for the computations of gain by petitioners should be the cost to them of their stock in the Imperial Co. plus the cost of the two leases contributed by them. Against this basis should be placed the value of all the stock acquired by them in the Bryan Co. at a value of 49½ cents per share. The claims of the Bryan wives for deduction of $2,500 each for attorneys’ fees is disallowed. No evidence was introduced to support such a deduction. Reviewed by the Board. Judgment will be entered wilder Rule 50. Murdock concurs in the result only.

2020-12-04 06:07:58.948083+00

https://www.nebraska.gov/apps-courts-epub/public/viewOpinion?docId=N00007489PUB

Nebraska Supreme Court Online Library www.nebraska.gov/apps-courts-epub/ 12/04/2020 12:07 AM CST - 817 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports IN RE INTEREST OF A.A. ET AL. Cite as 307 Neb. 817 In re Interest of A.A. et al., children under 18 years of age. State of Nebraska, appellee, v. Joshua C. appellant. ___ N.W.2d ___ Filed November 20, 2020. Nos. S-20-009, S-20-244. 1. Jurisdiction: Appeal and Error. A jurisdictional question that does not involve a factual dispute is a question of law that an appellate court resolves independently of the conclusions reached by the trial court. 2. Constitutional Law: Due Process. The determination of whether the procedures afforded to an individual comport with constitutional require- ments for due process presents a question of law. 3. Juvenile Courts: Evidence: Appeal and Error. Juvenile cases are reviewed de novo on the record, and an appellate court is required to reach a conclusion independent of the juvenile court’s findings; how- ever, when the evidence is in conflict, an appellate court may consider and give weight to the fact that the trial court observed the witnesses and accepted one version of the facts over the other. 4. Jurisdiction: Final Orders: Appeal and Error. Under Neb. Rev. Stat. § 25-1911 (Reissue 2016), for an appellate court to acquire jurisdiction of an appeal, there must be a final judgment or final order entered by the tribunal from which the appeal is taken. 5. Jurisdiction: Words and Phrases. Subject matter jurisdiction deals with the court’s ability to hear a case. 6. ____: ____. Subject matter jurisdiction is the power of a tribunal to hear and determine a case of the general class or category to which the proceedings in question belong and to deal with the general subject mat- ter involved. 7. Juvenile Courts: Jurisdiction. To obtain jurisdiction over a juvenile and the juvenile’s parents, the court’s only concern is whether the condi- tion in which the juvenile presently finds himself or herself fits within the asserted subsection of Neb. Rev. Stat. § 43-247 (Reissue 2016).  - 818 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports IN RE INTEREST OF A.A. ET AL. Cite as 307 Neb. 817 8. Constitutional Law: Due Process: Parent and Child. The relationship between parent and child is constitutionally protected and cannot be affected without procedural due process. 9. Due Process. The concept of due process embodies the notion of funda- mental fairness and defies precise definition. 10. ____. Due process is flexible and calls for such procedural protections as the particular situation demands. 11. Constitutional Law: Parent and Child. The mere existence of a bio- logical link does not merit substantial constitutional protection; rather, the parental liberty interest in a child stems from the more enduring relationship developed upon a biological parent’s commitment to the responsibilities of parenthood. 12. Constitutional Law: Due Process: Parent and Child. An unwed bio- logical father who has grasped the opportunity to establish a familial relationship with his biological child has an interest in personal contact with his child, which interest is given substantial protection under the Due Process Clause of the 14th Amendment. 13. Parental Rights. When parental control fails, the State must play its part as parens patriae. 14. ____. The rights of parenthood, even of a fit parent, are not beyond limitation by the State’s powers and duties as parens patriae. 15. ____. Where a child is cared for by a fit parent, the State’s interest in caring for the child is de minimis. 16. Parental Rights: Child Custody. Only the paramount interest which the public has in the protection of the rights of the child can subjugate the rights of parents to maintain custody of their children. 17. ____: ____. The parental preference doctrine holds that in a child cus- tody controversy between a biological parent and one who is neither a biological nor an adoptive parent, the biological parent has a superior right to the custody of the child. 18. Parental Rights: Child Custody: Presumptions. Under the parental preference doctrine, unless the State affirmatively shows a parent is unfit or has forfeited the right to custody, due regard for the parent’s natural right to the custody of a child requires that a parent be presump- tively regarded as the proper guardian. 19. Parental Rights: Child Custody: Proof. Only exceptional circum- stances involving proof of serious physical or psychological harm to the child or a substantial likelihood of such harm will negate the superior right of a fit parent who has not forfeited parental rights to custody under the parental preference doctrine. 20. Juvenile Courts: Jurisdiction: Child Custody: Proof. When the allegations of a petition for adjudication invoking the jurisdiction of  - 819 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports IN RE INTEREST OF A.A. ET AL. Cite as 307 Neb. 817 the juvenile court are against one parent only, the State cannot deny the other parent’s request for temporary physical custody in lieu of a foster care placement unless it pleads and proves by a preponderance of the evidence that the other parent is unfit or has forfeited custody or that there are exceptional circumstances involving serious physi- cal or psychological harm to the child or a substantial likelihood of such harm. 21. Parental Rights: Child Custody. Because parental preference derives not simply from biology but from the enduring relationship developed upon a biological parent’s commitment to the responsibilities of parent- hood, children removed from their homes due to the fault or habits of one parent need not immediately and without some minimal investiga- tion be placed with the other biological parent whose status as having an actual relationship of parental responsibility is unknown. 22. Juvenile Courts: Jurisdiction: Parental Rights: Child Custody. The nonoffending parent’s exercise of the parental preference of custody is not entirely unfettered during the juvenile court’s continuing jurisdiction under the juvenile code. 23. Juvenile Courts: Parental Rights. The juvenile court, in the exercise of its parens patriae responsibilities, may develop a transition plan con- stituting a reasonable intrusion of limited duration into the nonoffending parent’s rights to autonomy in the care and custody of the child. 24. Juvenile Courts: Due Process: Parental Rights: Child Custody. It does not violate due process for the juvenile court in its determination of the child’s best interests and in its role as adjudicator of the custody rights between two parents to require the nonoffending parent’s coopera- tion with goals of reunification back into the home from where the child was taken. 25. Due Process: Notice. Procedural due process generally requires that notice be given of such a nature as to reasonably convey the required information. 26. Parental Rights: Child Custody: Notice. In the context of denying parental preference in a placement decision during proceedings under Neb. Rev. Stat. § 43-247 (3)(a) (Reissue 2016), reasonable notice must include the factual bases for seeking to prove that the parent is unfit or has forfeited parental rights or that exceptional circumstances exist involving serious physical or psychological harm to the child or a sub- stantial likelihood of such harm. 27. ____: ____: ____. Allegations as to the fault or habits of the custodial parent do not operate to give notice to the noncustodial parent that the State seeks to rebut that parent’s right to parental preference in its place- ment decisions.  - 820 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports IN RE INTEREST OF A.A. ET AL. Cite as 307 Neb. 817 28. Handicapped Persons: Parent and Child: Parental Rights: Presumptions. There is no presumption that a disabled parent is unfit, that a disabled parent has forfeited parental rights, or that exceptional circumstances exist involving serious physical or psychological harm to the child or a substantial likelihood of such harm because a parent is disabled. 29. Handicapped Persons: Parent and Child: Presumptions. The simple fact that a parent is disabled does not overcome the presumption that the parent is a better caretaker of the parent’s own child than the State is. 30. Juvenile Courts: Jurisdiction: Final Orders: Appeal and Error. A juvenile court is not wholly divested of jurisdiction during the pendency of an appeal from a final order. 31. Courts: Juvenile Courts: Jurisdiction: Appeal and Error. The extent of the continuing jurisdiction of the separate juvenile courts and the county courts sitting as juvenile courts during the pendency of an appeal is not without limits and must be determined by the facts of each case. 32. Juvenile Courts: Jurisdiction: Parental Rights. The juvenile courts’ continuing jurisdiction does not include the power to terminate a juve- nile’s relationship with the child’s parents. 33. Judges: Recusal: Time. The issue of judicial disqualification is timely if submitted at the earliest practicable opportunity after the disqualifying facts are discovered. 34. Judges: Recusal: Presumptions. There exists a presumption of judicial impartiality, and a party alleging that a judge acted with bias or preju- dice bears a heavy burden of overcoming that presumption. 35. Judges: Recusal. A judge’s opinions based on facts presented dur- ing a hearing, even if those opinions are stated before the hearing’s conclusion, are not indicative of bias by the judge unless they display a deep-seated favoritism or antagonism that would make fair judg- ment impossible. Appeal from the Separate Juvenile Court of Lancaster County: Reggie L. Ryder, Judge. Judgment in No. S-20-009 reversed, and cause remanded with directions. Judgment in No. S-20-244 affirmed. Matt Catlett, of Law Office of Matt Catlett, for appellant. Douglas J. Peterson, Attorney General, C.J. Roberts, Special Assistant Attorney General, and Patrick Condon, Lancaster County Attorney, and Haley N. Messerschmidt for appellee.  - 821 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports IN RE INTEREST OF A.A. ET AL. Cite as 307 Neb. 817 Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ. Freudenberg, J. I. NATURE OF CASE Upon allegations that the mother had endangered her 6-year- old child who was living with her, the Nebraska Department of Health and Human Services (DHHS) was given temporary legal and physical custody of the child and his half siblings, who were placed together in temporary foster care. No allega- tions were made against the child’s legal father, who did not at that time live with the child and did not have notice of the hearing on temporary custody. There was an acknowledgment of paternity, and the father had lived with and helped support the child and his mother for approximately 5 years up until the father developed Guillain-Barre syndrome approximately 7 months before the petition for adjudication was filed. After the father became aware that his child was in foster care, he moved for temporary physical placement, which the juvenile court denied. The court reasoned that the father was “unfit” for placement at that time due to his unwillingness to cooperate with DHHS in forming a placement plan that addressed con- cerns stemming from a physical disability. In case No. S-20-009, the father appeals the denial of his motion for placement, arguing that the State did not sustain its burden to affirmatively prove him unfit by a preponder- ance of the evidence before depriving him of his fundamental liberty and privacy interests in caring for and guiding his child without undue interference. He also challenges the jurisdic- tion of the juvenile court based upon filing dates and scriv- ening details pertaining to the ex parte order removing the children from the mother’s home. While his appeal in case No. S-20-009 was pending, the court proceeded with adjudica- tion of the child over the father’s objection. In the appeal in case No. S-20-244, the father argues that his appeal in case No. S-20-009 divested the juvenile court of jurisdiction to issue the adjudication order.  - 822 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports IN RE INTEREST OF A.A. ET AL. Cite as 307 Neb. 817 II. BACKGROUND Joshua C., the legal father of B.C., appeals in case No. S-20-009 from the juvenile court’s order denying his motion for temporary physical placement of B.C. in his home pending the adjudication of B.C. under a petition making allegations of endangerment by the mother. In case No. S-20-244, Joshua appeals from the court’s subsequent order adjudicating B.C. due to the fault or habits of B.C.’s mother. We have consoli- dated the two cases, Nos. S-20-009 and S-20-244, for purposes of oral argument and disposition. 1. October 14, 2019, Ex Parte Emergency Temporary Order (a) Motion On October 14, 2019, a Monday, a motion for an ex parte order for emergency temporary custody was file stamped in the separate juvenile court of Lancaster County. Three chil- dren, A.A., M.A., and B.C., were listed in the caption. In the motion, the county attorney asserted that “the above-named juveniles are endangered in such conditions or surroundings that the juveniles’ welfare and best interest require immedi- ate removal.” The affidavit in support of the motion, dated October 11, 2019, listed in its caption four children, D.W., A.A., M.A., and B.C. In the affidavit, Officer Jarid Freyermuth stated that on October 11, 2019, he was dispatched on a report of “belated child neglect” in Lincoln, Nebraska. D.W., age 12, had reported that his mother had threatened him with a steak knife an hour prior, during the course of an argument about not properly storing an open bag of hotdogs. The mother had reportedly cornered D.W. while armed with the knife and, when he put his hands on her upper chest area to defend himself, placed the tip of the knife on his shoulder and said, “‘[I]f you touch me I’ll stab your hands.’”  - 823 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports IN RE INTEREST OF A.A. ET AL. Cite as 307 Neb. 817 Freyermuth reported that D.W.’s siblings, A.A., M.A., and B.C., corroborated D.W.’s description of the incident and that the mother ultimately admitted to arming herself with the knife and threatening D.W. Freyermuth reported that she denied, however, “touching D.W. with the knife even when faced with the fact that D.W. had an injury resembling being touched with the knife.” According to the affidavit, D.W. was turned over to his father, while an employee of DHHS took emergency custody of the other three children. The mother was taken to jail on October 11, 2019, upon charges of felony child abuse, terroris- tic threats, and use of a weapon to commit a felony. Freyermuth averred that the children were in such condi- tion or surroundings that their welfare required the court to assume temporary custody immediately by endorsement upon the summons or separate order directing that the children be taken into custody at once, with proper arrangements being made for their temporary custody and care pending a hearing on a petition. (b) Order The juvenile court signed an ex parte order for emergency temporary custody on Saturday, October 12, 2019. The order was not file stamped until Monday, October 14. The caption for the order listed A.A., M.A., and B.C. D.W. was not named in the caption. The order described that pur- suant to Neb. Rev. Stat. § 43-248 (2) (Cum. Supp. 2018), the “above-named juveniles’ needs require that they be taken into emergency custody and placed with [DHHS].” Pursuant to the ex parte order, a temporary custody hearing was scheduled for October 16, 2019. Notice of the hearing was to be sent to the parents and guardians identified in the affida- vit. Joshua was not identified. The court found in the ex parte order that DHHS could, at its discretion, return the children home pending the place- ment hearing. The ex parte order was to expire if the county  - 824 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports IN RE INTEREST OF A.A. ET AL. Cite as 307 Neb. 817 attorney failed to file a petition by October 15, 2019, at 4:30 p.m. A guardian ad litem was appointed. 2. October 14, 2019, Petition A petition was filed in juvenile court on Monday, October 14, 2019, at approximately 4 p.m. All four children, A.A., M.A., B.C., and D.W., were named in the caption. The peti- tion alleged that A.A., M.A., B.C., and D.W. were within the meaning of Neb. Rev. Stat. § 43-247 (3)(a) (Reissue 2016), by reason of the fault or habits of their mother, or that they were in a situation injurious to life or limb or their health or morals, based on the incident on October 11 in which she threatened one of them with a knife. The adjudication was based on no other events. No allegations were made against Joshua. While the alleged father of D.W. was listed in the petition as a person to be served with a summons, no other father was identified. Likewise, only the father of D.W., and the children’s mother, were identified in the praecipe for summons, dated October 17, 2019, to be served with copies of the petition. The record does not reflect that the court published notice, because a parent’s name was unknown, as provided for in Neb. Rev. Stat. § 43-268 (Reissue 2016). 3. October 17, 2019, Temporary Custody Order A hearing on the motion for temporary custody was held on October 16, 2019. Neither Joshua nor his counsel was present. The appellate record does not contain a transcription of the October 16 hearing. In an order on October 17, 2019, the court found that although DHHS was making reasonable efforts to eliminate the need for out-of-home placement, remaining in the home at that time would be contrary to the children’s health, safety, and welfare, and that it was in their best interests to remain in out-of-home placement. The court ordered that temporary legal and physical custody remain with DHHS. The mother was  - 825 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports IN RE INTEREST OF A.A. ET AL. Cite as 307 Neb. 817 given reasonable rights of supervised parenting time so long as she was not in custody. Only A.A., M.A., and B.C. were listed in the caption for the order of temporary custody. Joshua was not served with a copy of the order. 4. Joshua’s Intervention and Request for Placement on October 30, 2019 On October 30, 2019, Joshua, through his attorney, filed a motion for leave to intervene and for immediate placement of B.C. with him. In the motion, Joshua alleged that he was B.C.’s biological father and that with the exception of a 1-year separa- tion from B.C.’s mother, from B.C.’s birth in August 2013 until July 2019, B.C. and his mother had lived with Joshua, during which time Joshua had provided continuous care and support for B.C. Joshua did not explain when he received actual notice of the juvenile proceedings relating to B.C. Joshua described only that on or about October 29, 2019, a DHHS employee had informed him that DHHS would not consider placing B.C. in his care and custody. Joshua did not in the motion challenge the prior orders of the court on due process or any other grounds. He did not move for legal custody. Hearings on the motion were held on November 21 and December 23, 2019. (a) November 21, 2019, Hearing At the November 21, 2019, hearing, Joshua testified that he has lived for approximately 8 years in Superior, Nebraska, where he owns a four-bedroom house in the center of town. Joshua testified that he was in a romantic relationship with B.C.’s mother from approximately July 2012 until July 2019. During that time, they conceived B.C., who was born in August 2013. Joshua testified that he had signed an acknowl- edgment of paternity but had forgotten to bring it to the  - 826 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports IN RE INTEREST OF A.A. ET AL. Cite as 307 Neb. 817 November 21 hearing. There was no evidence of an adjudica- tion of custody rights between the two parents. B.C. and B.C.’s mother lived with Joshua during the entirety of their relationship with the exception of a year when she and B.C. had moved out, 2 or 3 years before the hearing, and then moved back in. Joshua described that in late February 2019, he developed Guillain-Barre syndrome. He was hospitalized for a month and then spent approximately 6 months in rehabilitation centers until returning home in September. It was during his illness that his relationship with B.C.’s mother ended. At the time of the hearing, Joshua had been home for approximately 2 months. B.C. visited Joshua 5 to 10 times while Joshua was residing at rehabilitation centers. Joshua tes- tified that he had seen B.C. only twice since returning home, during two weekend visits arranged with B.C.’s current place- ment caretaker. Joshua lives alone, but has a 15-year-old child who stays with him every Wednesday overnight and every other Thursday through Sunday. As of the time of the hearing, Joshua was still unable to get around without a wheelchair. He had the aid of home health care in the mornings. He was unable to fully sit himself up in his wheelchair without assistance. Before developing Guillain- Barre syndrome, Joshua worked as a pipewelder. Since his illness, he has relied on Social Security disability payments. Joshua testified that he was financially able to provide for B.C. Joshua did not believe his physical limitations impaired his ability to properly parent or supervise B.C. Joshua testified that his grandfather had agreed to take B.C. to and from school. The school bus stopped only “three blocks away.” Joshua could also reach out to his mother, if she was not working, as well as to “[f]riends and just people in the community,” for school transportation. Joshua named a couple of people who had volunteered to help. Joshua explained that  - 827 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports IN RE INTEREST OF A.A. ET AL. Cite as 307 Neb. 817 the transportation company he uses would be able to transport B.C. to any appointments. As far as feeding B.C., Joshua testified that “[t]here’s the local grocery store and then there’s the Dollar General.” Joshua testified that he was not yet cooking any of his own meals, but that his mother, his grandfather, and the aides had all said they would be willing to prepare meals for B.C. Alternatively, he could order takeout or delivery. Joshua described a nightly routine for B.C. that would involve homework, television, showering, and brushing teeth. He did not foresee its being a problem that he generally did not have assistance overnight. Joshua said that DHHS had been in contact with him about a placement plan. There had been some discussion about placing B.C.’s half siblings with Joshua as well. Joshua was willing to serve as such a placement. The plan that was developed was originally going to involve having Joshua’s mother stay overnight. At that time, his mother was spending the night in Joshua’s home to help care for him. She had been staying the night at Joshua’s house from the time of his return from the rehabilitation centers up until approxi- mately 2 weeks before the November 21, 2019, hearing. Joshua explained that as of early November 2019, his mother no longer wished to stay overnight. Joshua did not reach out to notify DHHS that his mother would no longer be staying the night, but confirmed that was true when DHHS called and asked. Joshua testified that he was willing to have a conversation with DHHS about any logistical concerns of how to address emergencies or other childcare issues that might arise in the middle of the night. Joshua conceded that he had refused to sign a medical release to allow DHHS to review his medical records relating to his Guillain-Barre syndrome prognosis, explaining, “I’m just not prepared to do it right now, okay.” At the close of the day on November 21, 2019, the court noted that the hearing would be continued in order to allow  - 828 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports IN RE INTEREST OF A.A. ET AL. Cite as 307 Neb. 817 the parties to present additional evidence. The court told Joshua that he had “come a long way.” The court stated that it needed to see the acknowledgment form. The court continued to explain that, also, “we need to make sure there’s a plan,” elaborating: [W]e’ve talked about evenings. We haven’t talked about weekends when he’s not in school. We haven’t talked about a snow day that we’re probably going to have. We haven’t talked about two or three weeks of not being in school during Christmas. We’ve got to make sure we’ve got a plan. It sounds like you’ve thought about it a little bit but I’d want to make sure before I’m going to say he’s in your care, that we’ve got a daily consistent plan and schedule. Who’s going to be coming over. Who can we call at 2:00 in the morning if he has a nose bleed, a fever. If he falls out of bed. If he’s scared and I understand you would like to be there and right now you’re limited on doing that. So we’ve got to make sure we’ve got a safe and smart plan . . . . I’ve got to make sure we’ve got, you know, a plan that’s — that’s really pretty much consist­ ent. Who’s going to be on call at 2:00 in the morning. Who’s going to be there on the weekends. Who’s going to be preparing the meals because on the weekends we’ve got breakfast, lunch, we’ve got dinner. And we’ve got snacks. We’ve got a lot of things that six year olds need help with so we’ll certainly hear more about that at the next hearing[.] (b) December 23, 2019, Hearing At the continuation of the hearing on December 23, 2019, Joshua offered into evidence the acknowledgment of pater- nity containing the notarized signatures of both Joshua and B.C.’s mother in August 2013, which the court received. The exhibit reflects that the acknowledgment had been filed with DHHS as required by Neb. Rev. Stat. § 43-1408.01 (Reissue 2016). As soon as the acknowledgment was received, the  - 829 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports IN RE INTEREST OF A.A. ET AL. Cite as 307 Neb. 817 court orally pronounced that Joshua’s motion to intervene was granted, and the only motion still pending was placement. (i) Joe Knott’s Testimony Joe Knott, an employee of DHHS, testified that an inspec- tion of Joshua’s home found it to be in appropriate condition and that DHHS had previously “ironed out a plan” with Joshua for placement of the children with him around November 4, 2019. That plan, however, had “deteriorated” by the time of the scheduled placement due to the sudden departure of Joshua’s mother as an overnight caretaker. Accordingly, place- ment was delayed. Knott checked in a few more times throughout that week to see if there had been any change in the situation. After a couple of conversations in which Joshua indicated nothing had changed, Knott was unable to reach Joshua. Knott testified that he “left voicemails trying to figure out a way that we could remedy the situation and kind of make sure that we had some- thing that was in place so that it would allow us to move for- ward with placement, but I did not hear back from [Joshua].” At some point, B.C., A.A., and M.A. were placed together in another home. Since the unsuccessful prior attempts at moving forward with placement with Joshua, communication between Joshua and DHHS had involved one conversation about the two visits with B.C. and B.C.’s half siblings facilitated by B.C.’s current placement and one conversation about “placement and things that we’d like to see.” After that, Knott understood Joshua had “been advised by his attorney not to speak with us.” According to Knott, B.C.’s mother had indicated “she did not want any of her ex’s to have placement of the children.” This conversation apparently occurred after the November 21, 2019, hearing. She had originally told Knott that B.C. was “well bonded” with Joshua. Knott described that if Joshua were willing to work with DHHS, DHHS would gather information about reasonable accommodations that Joshua would be making “in terms of  - 830 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports IN RE INTEREST OF A.A. ET AL. Cite as 307 Neb. 817 finding individuals that are willing [and] able to assist him with the placement to make sure that it can be done effec- tively, and that there’s no safety concerns for [B.C.,] who’s six years old.” Knott opined that “just being able to identify those individuals that would be willing and able to help in certain situations I think would be very helpful and go a long way into helping us develop and firm up a plan.” Knott noted that DHHS would want to run background checks on any poten- tial caretakers. Since the November 21, 2019, hearing, Knott and a case- worker had reached out to Joshua’s attorney via email several times, requesting that they have discussions to work out a placement plan or visitation. Neither Joshua nor his attorney had responded to such requests. Knott expressed having certain concerns until DHHS could work with Joshua in developing a plan regarding the logistics of placement, mainly about how Joshua would handle hypothetical emergent situations that could arise in the middle of the night. Knott testified that he believed that because B.C. was a state ward, DHHS had certain obligations to ensure the safety of any placement—apparently including with a noncustodial parent against whom no allega- tions had been made. According to Knott, “the biggest barrier” to placement with Joshua was “not being able to have an open and honest conversation” with him. Part of Knott’s testimony was adduced upon questioning by the juvenile court judge. The judge asked if, since the prior hearing, Knott had been given any more specifics about assistance with meal preparation or general preparedness to care for B.C. over the upcoming holiday break, which Knott testified he had not. Further, Knott agreed, upon the judge’s questioning, that it was possible “that had [Joshua] cooperated with [DHHS] and [its] efforts from the last hearing to come up with a plan, [Knott] could’ve been in a position today to recommend [B.C.] be placed with [Joshua] in his home today.” Knott also agreed with the judge that it was “fair to say” that Joshua’s “unwillingness to do that has delayed in progress in  - 831 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports IN RE INTEREST OF A.A. ET AL. Cite as 307 Neb. 817 that regard.” Finally, the court asked several questions of Knott regarding DHHS’ requirements, responsibilities, and expecta- tions once a child becomes a state ward. Knott affirmed that DHHS felt a responsibility to be able to follow up on place- ments, going to the home at least once a month for private con- versations with the child and caregivers to see how things were going. Knott testified he was concerned that Joshua would not allow that. (ii) B.C.’s Mother’s Testimony B.C.’s mother testified at the hearing that during the course of her relationship with Joshua, which she said ended in May 2019, they had arguments that sometimes became “physical.” She described one incident over winter break in 2015 when Joshua was intoxicated and threatened to shoot himself, shoot her, and then shoot the children. It was unclear if Joshua was brandishing a weapon at that time. The police intervened, arrested Joshua, and confiscated his weapons. She testified that Joshua was initially charged with terroristic threats but that the charges might have been dropped. B.C.’s mother testified that her “only concern” with B.C.’s being placed in Joshua’s care was “if he’s mentally capable of handling certain situations.” When asked, she also affirmed she was concerned with excessive drinking. She testified that when she moved out, Joshua had approximately 13 guns locked in a gun safe he had acquired after the terroristic threats incident. (c) December 23, 2019, Order Granting Intervention and Denying Placement At the close of the evidence, Joshua’s counsel argued that a parent who is not the subject of a petition to adjudicate the child retains constitutional parental preference such that a child removed from the home under a petition alleging fault or habits of the other parent must automatically be placed with the par- ent who is not the subject of the petition. Joshua’s counsel referred to the motion for placement as being “actually a little bit awkward because the Court has  - 832 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports IN RE INTEREST OF A.A. ET AL. Cite as 307 Neb. 817 not acquired jurisdiction over this child”—an allegation that was apparently elaborated upon in the trial brief that is not in the record. Also, Joshua’s counsel referred to the court’s “argu- mentative suggestions — suggestive and leading questions” of Knott. But Joshua’s counsel did not move to disqualify the juvenile court judge. The court disagreed with Joshua’s arguments, including that it had to place B.C. with him because of the parental prefer- ence doctrine. The court stated that based on the evidence pre- sented, Joshua was “currently a parent who’s unfit to have his child placed in his care.” It also found that it was not in B.C.’s best interests for the placement to occur. In support of these conclusions, the court cited “[t]he lack of any ability to try to overcome the concerns.” The court explained that it had “made it very clear” a month before what its concerns were and that DHHS had “made a number of efforts to try to overcome those issues and concerns and unfitness.” The court stated, “[T]here hasn’t been any coopera- tion whatsoever.” In an order filed on December 23, 2019, the court found that Joshua was B.C.’s father and allowed Joshua to intervene. The same order memorialized the court’s denial of Joshua’s motion for placement. The court found that Joshua was not “currently a fit and proper parent to have custody,” noting that Joshua “has not been willing to work with DHHS to develop a plan to overcome the barriers to approving that placement.” Due in part to such lack of cooperation, the court found that “it would not be safe” for B.C. “to be placed in the home of his father at this time.” Such placement would be “contrary to the health, safety, and welfare” of B.C. and would not be in B.C.’s best interests. The court ordered DHHS to continue to make efforts to work with Joshua to overcome the barriers to placement, noting that once a plan is in place that ensures the safety and well-being of B.C., Joshua could petition the court for placement and a further hearing would be timely scheduled. Joshua appealed the December 23, 2019, order.  - 833 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports IN RE INTEREST OF A.A. ET AL. Cite as 307 Neb. 817 5. February 27, 2020, Order of Adjudication Subsequently, the juvenile court held a hearing on adjudica- tion. Joshua objected to the hearing on the ground that his pend- ing appeal of the denial of his motion for placement divested the court of jurisdiction to adjudicate B.C. The court found the case law relied upon by Joshua inapposite and found that the mother had an interest in case progression so that a rehabilita- tive plan could be developed to place B.C. back in her care as soon as possible. The juvenile court accepted the mother’s plea of no contest to the petition for adjudication. In an order dated February 27, 2020, the court overruled Joshua’s objection. The court articulated as part of its findings that “[t]he current goal in this case is to return the juveniles to the custody of [their mother].” That same date, the court issued an order adjudicating B.C. and his half siblings as lacking proper parental care by reason of the fault or habits of their mother and determining that they were in a situation dangerous to their life or limb or injurious to their health or morals. At some point, the court had placed B.C. and his half siblings in a different foster care home from where they were first placed. The court ordered all prior tem- porary orders to remain in effect. III. ASSIGNMENTS OF ERROR In his appeal in case No. S-20-009 from the denial of his motion for placement, Joshua assigns, restated, that the juvenile court (1) erred by denying his motion for temporary placement; (2) was biased when considering his motion for placement; (3) erred by imposing, contrary to his superior parental right to custody and due process, the burden of proof on Joshua in rela- tion to the placement decision; (4) treated him differently from the father of D.W., in violation of equal protection principles; and (5) issued void orders in the ex parte order of emergency temporary custody and the October 16, 2019, continuation of such temporary custody.  - 834 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports IN RE INTEREST OF A.A. ET AL. Cite as 307 Neb. 817 In his appeal from the adjudication order in case No. S-20-244, Joshua assigns that (1) the juvenile court erred in overruling his objection to proceeding with the hearing on the petition as to B.C. on the ground that the juvenile court had no jurisdiction to adjudicate B.C. due to the pending appeal in case No. S-20-009; (2) the juvenile court’s order on February 27, 2020, adjudicating B.C. is void for lack of jurisdiction; and (3) the juvenile court judge’s remark that “[t]he current goal in this case is to return the juveniles to the custody of [their mother]” was prejudicial and required disqualification. IV. STANDARD OF REVIEW [1] A jurisdictional question that does not involve a factual dispute is a question of law that an appellate court resolves independently of the conclusions reached by the trial court. 1 [2] The determination of whether the procedures afforded to an individual comport with constitutional requirements for due process presents a question of law. 2 [3] Juvenile cases are reviewed de novo on the record, and an appellate court is required to reach a conclusion independent of the juvenile court’s findings; however, when the evidence is in conflict, an appellate court may consider and give weight to the fact that the trial court observed the witnesses and accepted one version of the facts over the other. 3 V. ANALYSIS 1. Jurisdiction Over Appeal [4] We first address whether we have jurisdiction over the order denying Joshua’s motion for placement that is being appealed in case No. S-20-009. Under Neb. Rev. Stat. § 25-1911 (Reissue 2016), for an appellate court to acquire jurisdiction 1 See In re Interest of Enyce J. & Eternity M., 291 Neb. 965 , 870 N.W.2d 413 (2015). 2 In re Interest of Kane L. & Carter L., 299 Neb. 834 , 910 N.W.2d 789 (2018). 3 In re Interest of Karlie D., 283 Neb. 581 , 811 N.W.2d 214 (2012).  - 835 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports IN RE INTEREST OF A.A. ET AL. Cite as 307 Neb. 817 of an appeal, there must be a final judgment or final order entered by the tribunal from which the appeal is taken. 4 Also, Neb. Rev. Stat. § 43-2 ,106.01(1) (Reissue 2016) provides that “[a]ny final order or judgment entered by a juvenile court may be appealed to the Court of Appeals in the same manner as an appeal from district court to the Court of Appeals,” and § 43-2,106.01(2)(c) specifies that such appeal may be taken by “[t]he juvenile’s parent.” Because the juvenile proceedings are still ongoing, there has yet to be a judgment. 5 The State asserts that the December 23, 2019, order denying Joshua’s motion for placement is not a final, appealable order as defined by Neb. Rev. Stat. § 25-1902 (Supp. 2019). The State acknowledges that orders governing temporary placement away from a parent ordinarily constitute final orders pursuant to § 25-1902(1)(b), as orders affecting a substantial right made during a special proceed- ing. 6 It argues, however, that the denial of Joshua’s motion for placement was a mere continuation of the court’s prior order on October 17 of temporary physical custody remaining with DHHS, outside of the mother’s home, and that the December 23 order therefore did not have a substantial effect on Joshua’s substantial rights. We have said that when an “‘order from a juvenile court is already in place and a subsequent order merely extends the time for which the previous order is applicable, the sub- sequent order by itself does not affect a substantial right and does not extend the time in which the original order may be appealed.’” 7 But when we have thus found a subsequent 4 State v. Lotter, 301 Neb. 125 , 917 N.W.2d 850 (2018). 5 See Neb. Rev. Stat. § 25-1301 (1) (Reissue 2016). 6 See, In re Interest of R.R., 239 Neb. 250 , 475 N.W.2d 518 (1991); In re Interest of R.G., 238 Neb. 405 , 470 N.W.2d 780 (1991), disapproved on other grounds, O’Connor v. Kaufman, 255 Neb. 120 , 582 N.W.2d 350 (1998). 7 See, e.g., In re Guardianship of Rebecca B. et al., 260 Neb. 922 , 931, 621 N.W.2d 289 , 295 (2000).  - 836 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports IN RE INTEREST OF A.A. ET AL. Cite as 307 Neb. 817 order to “‘merely extend[] the time’” of the prior order, the interests of the person who wished to appeal the subsequent order had been specifically adjudicated by the prior order and that person had notice of the prior proceedings and accordingly had the opportunity to appeal it. 8 Here, the October 17, 2019, order was issued before Joshua intervened. He was given no notice of the proceedings leading up to the October 17 order, did not participate in that place- ment hearing, and was not given notice of the order itself. Furthermore, in making its placement decision in the October 17 order, the court had not been presented with Joshua as a possible placement. The juvenile court had not been asked, pursuant to a motion for placement, to adjudicate B.C.’s tem- porary custody in light of the parental preference doctrine as applies to Joshua. Rather, the court considered only whether the mother was at that time unfit for physical custody such that B.C. should remain outside of her home. Different rights were affected by the October 17 order maintaining B.C.’s temporary custody outside of the mother’s home and the December 23 order denying Joshua’s motion for temporary custody. The court’s December 23, 2019, order denying Joshua’s motion for custody did not merely extend the time of the appli- cability of the October 17 order of temporary custody outside of the mother’s home and in foster care. Instead, it was the juvenile court’s first adjudication of Joshua’s parental right to temporary physical custody of B.C. over the State’s interest in custody. The December 23 order presented Joshua’s first oppor- tunity to appeal its determination of that issue. The December 23 order was final under § 25-1902(1)(b), and we have jurisdic- tion over the appeal in case No. S-20-009. 2. Subject Matter Jurisdiction Joshua makes several arguments that seek to vacate the underlying order granting the State temporary legal custody over B.C., which necessitated Joshua’s motion for placement 8 See id.  - 837 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports IN RE INTEREST OF A.A. ET AL. Cite as 307 Neb. 817 so that B.C. would not be in foster care. He believes that the October 17, 2019, order is “void” 9 for lack of subject matter jurisdiction. We disagree. Joshua’s reasoning is complicated. He argues that the October 14, 2019, ex parte order of emergency temporary cus- tody was void for four reasons. First, he argues there was no order of temporary custody filed within 48 hours as required by Neb. Rev. Stat. § 43-250 (2) (Cum. Supp. 2018), which, he notes, does not expressly exclude nonjudicial days. Second, Joshua asserts that the ex parte order was void because there was no petition filed in accordance with § 43-247 and Neb. Rev. Stat. § 43-261 (1)(a) (Reissue 2016) at the time of the ex parte order and because there is no statute authorizing a juve- nile court to issue such an order in the absence of a petition. Third, Joshua takes issue with the fact that the motion for the ex parte order was file stamped at the exact same time as the order granting the same, this allegedly being “problematic” 10 and implicating procedural due process because the order was not in response to a motion. Fourth, he alleges that because the ex parte order did not attach the affidavit, it is “impossible to know for certain” 11 whether the affidavits relied on by the court were made part of the record of the proceedings as required in In re Interest of R.G. 12 The alleged voidness of the ex parte order in turn alleg- edly rendered the October 16, 2019, hearing void, which, in turn, allegedly rendered the October 17 order continuing temporary custody void, “because it was premised on a hear- ing that, legally, was never ordered to occur.” 13 Joshua asserts that it does not matter that a petition for adjudication under § 43-247(3)(a) was filed between the filing of the ex parte 9 Brief for appellant in case No. S-20-009 at 19. 10 Id. at 48. 11 Id. 12 In re Interest of R.G., supra note 6. 13 Brief for appellant in case No. S-20-009 at 20.  - 838 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports IN RE INTEREST OF A.A. ET AL. Cite as 307 Neb. 817 order and the hearing, because the untimely petition could not “resuscitate a void order” and “there is no statutory or judicial authority in Nebraska for a juvenile court ordering or holding a hearing on the issue of a juvenile’s pre-adjudication detention or placement in the absence of a prior, valid pre-adjudication detention or placement order or a properly filed motion by the State.” 14 [5,6] Subject matter jurisdiction deals with the court’s abil- ity to hear a case. 15 Subject matter jurisdiction is the power of a tribunal to hear and determine a case of the general class or category to which the proceedings in question belong and to deal with the general subject matter involved. 16 [7] We have held that to obtain jurisdiction over a juvenile and the juvenile’s parents, the court’s only concern is whether the condition in which the juvenile presently finds himself or herself fits within the asserted subsection of § 43-247. 17 The juvenile court’s subject matter jurisdiction in this case was conferred by § 43-247, which provides that “[t]he juvenile court . . . shall have . . . jurisdiction of ” any juvenile defined in § 43-247(3) and of the “parent, guardian, or custodian.” Section 43-247(3) describes the circumstances of the juvenile, including one who is in a situation dangerous to life or limb or injurious to the health or morals of such juvenile. Section 43-247(5) describes “[t]he parent, guardian, or custodian of any juvenile described in this section.” While procedural due process requires that a petition for adjudication allege specific factual allegations as to why the juvenile falls under § 43-247(3)(a), 18 it has been held that 14 Id. at 42 (emphasis omitted). 15 In re Interest of Devin W. et al., 270 Neb. 640 , 707 N.W.2d 758 (2005). 16 Id. 17 See, In re Interest of Sloane O., 291 Neb. 892 , 870 N.W.2d 110 (2015); In re Interest of Devin W. et al., supra note 15. 18 See, e.g., In re Interest of Trenton W. et al., 22 Neb. App. 976 , 865 N.W.2d 804 (2015).  - 839 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports IN RE INTEREST OF A.A. ET AL. Cite as 307 Neb. 817 even inadequacies in the petition pertaining to parental notice do not divest the juvenile court of its subject matter jurisdic- tion. 19 Not all juveniles over which the juvenile court exercises subject matter jurisdiction pursuant to § 43-247 have been temporarily removed from the home pursuant to an ex parte order. There is nothing in the juvenile code indicating that the procedures governing ex parte orders are integral to the juve- nile court’s subject matter jurisdiction to subsequently issue a temporary custody order following a petition for adjudication under § 43-247 and an evidentiary hearing. Irregularities pertaining to the ex parte custody order could not render the October 17, 2019, order void. We need not address the merits of these alleged irregularities leading to the October 14 temporary ex parte order that is no longer in effect and is moot. 20 The ex parte order has no bearing on the December 23 order on Joshua’s motion for placement. The juvenile court has jurisdiction to determine the proper place- ment of B.C. while the juvenile case brought under the petition for adjudication under § 43-247(3)(a) remains open. We pro- ceed to the merits of its December 23 order. 3. Placement Joshua argues that when a petition under § 43-247(3)(a) is based on the conduct of one parent, unless the State affirma- tively pleads and proves the unfitness of the other parent who does not reside in the home the child was removed from, the parental preference doctrine requires that the child be placed with the other parent instead of in foster care. Joshua elabo- rates that procedural due process requires that the noncusto- dial parent be given notice of specific allegations of unfitness before the State can deprive such parent of temporary custody pursuant to that parent’s constitutionally protected parental 19 See In re Interest of Taeven Z., 19 Neb. App. 831 , 812 N.W.2d 313 (2012). 20 See State on behalf of Pathammavong v. Pathammavong, 268 Neb. 1 , 679 N.W.2d 749 (2004).  - 840 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports IN RE INTEREST OF A.A. ET AL. Cite as 307 Neb. 817 preference. And a parent who is not described in a petition for adjudication is not given the necessary notice unless other filings are made. Joshua points out that the State never alleged in any filings in juvenile court that he was unfit or had forfeited his superior right to custody, and he asserts that the court violated his due process rights both by litigating unfitness and by placing upon him at the hearings on his motion for placement the burden of demonstrating that he was fit to parent B.C. He argues that once he established his constitutionally protected status as a parent, the motion for placement should have been granted without further inquiry. He was not required to cooperate with DHHS in forming a plan that would provide assurances of B.C.’s safety, because the parental preference doctrine dictates that absent a showing of unfitness, he has a superior right to custody without undue State interference. Alternatively, Joshua argues that the evidence did not establish by a preponderance of the evidence that he was unfit. The State, for its part, points out that it has been granted temporary legal custody over B.C. and is attempting to duti- fully exercise its parens patriae responsibility to ensure B.C.’s welfare wherever he is placed. And the juvenile code contem- plates jurisdiction over not only the child described therein, but also over such child’s parents. 21 The State notes that the juve- nile court concluded that B.C.’s welfare could not be ensured without more cooperation from Joshua in creating a safety plan. Thus, the juvenile court determined that the State had proved that at least at the moment, Joshua was “unfit.” It denies that it placed the burden on Joshua to prove himself fit. The question presented in this appeal is where the net weight lies in the balance between the State’s parens patriae interest in protecting B.C.’s welfare and Joshua’s liberty and privacy interests in the care, custody, and management of his 21 See, § 43-247(5); In re Interest of Devin W. et al., supra note 15 ; In re Interest of Sabrina K., 262 Neb. 871 , 635 N.W.2d 727 (2001).  - 841 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports IN RE INTEREST OF A.A. ET AL. Cite as 307 Neb. 817 child. 22 This case specifically raises questions concerning what level of State intrusion into the rights of a noncustodial parent, against whom no allegations have been made, is justified by a pending adjudication of the child under § 43-247(3)(a) due to allegations against the custodial parent and after a deter- mination that the child would be at significant risk of harm if maintained in the custodial parent’s home. It also raises issues of how the noncustodial parent’s disability is treated in relation to determining temporary custodial rights. [8-10] The relationship between parent and child is consti- tutionally protected and cannot be affected without procedural due process. 23 Due process of law is the “basic and essential term in the social compact which defines the rights of the indi- vidual and delimits the powers which the state may exercise.” 24 But due process, “‘unlike some legal rules, is not a technical conception with a fixed content unrelated to time, place and circumstances.’” 25 The concept of due process embodies the notion of fundamental fairness and defies precise definition. 26 Due process is flexible and calls for such procedural protec- tions as the particular situation demands. 27 The constitutional protections in the realm of parental rights and parens patriae responsibilities must be “elaborated with care.” 28 In determining where the net weight lies, we must evaluate Joshua’s interests that were at stake in the tempo- rary placement of B.C. in foster care rather than in Joshua’s 22 See Lassiter v. Department of Social Services, 452 U.S. 18 , 101 S. Ct. 2153 , 68 L. Ed. 2d 640 (1981). 23 State ex rel. Grape v. Zach, 247 Neb. 29 , 524 N.W.2d 788 (1994). 24 In re Gault, 387 U.S. 1 , 20, 87 S. Ct. 1428 , 18 L. Ed. 527 (1967). 25 Mathews v. Eldridge, 424 U.S. 319 , 334, 96 S. Ct. 893 , 47 L. Ed. 2d 18 (1976). 26 In re Interest of Sloane O., supra note 17 . 27 Id. 28 See, e.g., Troxel v. Granville, 530 U.S. 57 , 101, 120 S. Ct. 2054 , 147 L. Ed. 2d 49 (2000) (Kennedy, J., dissenting).  - 842 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports IN RE INTEREST OF A.A. ET AL. Cite as 307 Neb. 817 home. We must determine the risk of erroneous deprivation of such interests through the procedures used and the probable value, if any, of additional or substitute procedural safeguards. And we must evaluate the State’s interest in the placement decision, including the function involved and the fiscal and administrative burdens that additional procedural requirements would entail. 29 [11] “[P]arents have a fundamental liberty interest in caring for and guiding their children, and a corresponding privacy interest—absent exceptional circumstances—in doing so with- out the undue interference of strangers to them and to their child”; these interests, however, “‘“do not spring full-blown from the biological connection between parent and child.”’” 30 The “mere existence of a biological link does not merit [sub- stantial] constitutional protection.” 31 Rather, such liberty inter- est stems from the more enduring relationship developed upon a biological parent’s “commitment to the responsibilities of parenthood.” 32 If the parent fails to grasp the opportunity to develop a relationship with the parent’s offspring and does not accept “some measure of responsibility for the child’s future,” “the Federal Constitution will not automatically compel a State to listen to his opinion of where the child’s best inter- ests lie.” 33 [12] The U.S. Supreme Court has held that an unwed bio- logical father who has grasped the opportunity to establish 29 See, Santosky v. Kramer, 455 U.S. 745 , 102 S. Ct. 1388 , 71 L. Ed. 2d 599 (1982); Lassiter v. Department of Social Services, supra note 22; Mathews v. Eldridge, supra note 25 . 30 Troxel v. Granville, supra note 28 , 530 U.S. at 87 (Stevens, J., dissenting). See, also, e.g., Prince v. Massachusetts, 321 U.S. 158 , 64 S. Ct. 438 , 88 L. Ed. 645 (1944); In re Interest of Enyce J. & Eternity M., supra note 1. See, also, State on behalf of Tina K. v. Adam B., ante p. 1, 948 N.W.2d 182 (2020). 31 Lehr v. Robertson, 463 U.S. 248 , 261, 103 S. Ct. 2985 , 77 L. Ed. 2d 614 (1983). 32 Id. 33 Id., 463 U.S. at 262 .  - 843 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports IN RE INTEREST OF A.A. ET AL. Cite as 307 Neb. 817 a familial relationship with his biological child has an inter- est in personal contact with his child, which interest is given substantial protection under the Due Process Clause of the 14th Amendment. 34 “The private interest . . . of a man in the children he has sired and raised, undeniably warrants deference and, absent a powerful countervailing interest, protection.” 35 It has been established both that Joshua is B.C.’s biological father and that he has cared for and supported B.C. throughout most of B.C.’s life. Joshua is also B.C.’s legal father by virtue of the acknowledgment of paternity. Under these facts, Joshua has a fundamental liberty interest in the care, custody, and manage- ment of B.C. that is entitled to substantial protection under the Due Process Clause of the 14th Amendment. [13] The State has an interest in the placement of B.C. that is derived from its role as parens patriae. 36 That interest is also important. 37 Parens patriae means, in essence, that the State has a right to protect the welfare of its resident children. 38 When parental control fails, the State must play its part as parens patriae. 39 The State has an interest in determining the status and custody that will best meet the child’s needs and wants, which is invoked both in proceedings under the juvenile code and when the State must adjudicate custody rights as between two parents. 40 34 See, e.g., Lehr v. Robertson, supra note 31 ; In re Adoption of Corbin J., 278 Neb. 1057 , 775 N.W.2d 404 (2009). 35 Stanley v. Illinois, 405 U.S. 645 , 651, 92 S. Ct. 1208 , 31 L. Ed. 2d 551 (1972). 36 In re Interest of Enyce J. & Eternity M., supra note 1. 37 See In re Interest of Anthony G., 255 Neb. 442 , 586 N.W.2d 427 (1998). 38 In re Interest of Karlie D., supra note 3. 39 See In re Interest of S.R., D.R., and B.R., 239 Neb. 871 , 479 N.W.2d 126 (1992). 40 See, e.g., Copple v. Copple, 186 Neb. 696 , 185 N.W.2d 846 (1971); State ex rel. Cochrane v. Blanco, 177 Neb. 149 , 128 N.W.2d 615 (1964); Meyerkorth v. State, 173 Neb. 889 , 115 N.W.2d 585 (1962); In re Application of Reed, 152 Neb. 819 , 43 N.W.2d 161 (1950); In re Interest of Stephanie H. et al., 10 Neb. App. 908 , 639 N.W.2d 668 (2002).  - 844 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports IN RE INTEREST OF A.A. ET AL. Cite as 307 Neb. 817 When called upon, the State, through the juvenile court, merely performs its duty of seeing that the child was properly cared for. 41 The juvenile court is a product of the solicitude of the law for the welfare of infants. 42 Its powers and duties are described in detail in our statutes, and because of their humani- tarian and beneficent purpose, these statutes should be liber- ally construed to the end that their manifest purpose may be effectuated to the fullest extent compatible with their terms. 43 Neb. Rev. Stat. § 43-246 (Supp. 2019) provides in relevant part that the juvenile code shall be construed to ensure the rights of all children to care and protection and a safe and stable living environment, “with due regard to parental rights.” [14-16] The “‘rights of parenthood,’” even of a fit ­parent, are not “‘beyond limitation’” 44 by the State’s powers and duties as parens patriae. Thus, for example, the State may impose through laws of neutral and general applicability certain educa- tional requirements, restrictions on child labor, and compulsory vaccination, even when against the parents’ ­wishes. 45 But, as the U.S. Supreme Court has explained, the “State registers no gain towards its declared goals when it separates children from the custody of fit parents.” 46 Where a child is cared for by a fit parent, the State’s interest in caring for the child is “de minimis.” 47 “[T]he State cannot presume that a child and his parents are adversaries.” 48 Only the paramount interest 41 See DeBacker v. Brainard, 183 Neb. 461 , 161 N.W.2d 508 (1968). 42 Stewart v. McCauley, 178 Neb. 412 , 133 N.W.2d 921 (1965). 43 See id. 44 Douglas Cty. v. Anaya, 269 Neb. 552 , 560, 694 N.W.2d 601 , 607 (2005), quoting Prince v. Massachusetts, supra note 30 . See, also, Copple v. Copple, supra note 40 ; State ex rel. Cochrane v. Blanco, supra note 40 ; Meyerkorth v. State, supra note 40. 45 See, e.g., Prince v. Massachusetts, supra note 30 ; Douglas Cty. v. Anaya, supra note 44 . 46 Stanley v. Illinois, supra note 35 , 405 U.S. at 652 . 47 Id., 405 U.S. at 657 (emphasis omitted). 48 Santosky v. Kramer, supra note 29 , 455 U.S. at 760 .  - 845 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports IN RE INTEREST OF A.A. ET AL. Cite as 307 Neb. 817 which the public has in the protection of the rights of the child can subjugate the rights of parents to maintain custody of their children. 49 Due to the allegations against the mother, the State has been called upon to play its role as parens patriae for B.C. And dur- ing proceedings under § 43-247(3)(a), the juvenile court has broad jurisdiction regarding placement. 50 B.C. was removed from his mother’s home upon probable cause that he was seriously endangered in his surroundings and that immediate removal was necessary for his protection. 51 B.C. remained in DHHS’ continuing temporary physical custody pending adju- dication in accordance with the juvenile code’s requirement that the court find that being placed back in the mother’s home would be contrary to B.C.’s health, safety, or welfare. 52 But aside from its general mandate that due regard be given to parental rights, 53 the juvenile code’s provisions governing physical custody pending disposition do not specifically con- template situations where only one parent resides in the home from which the child was removed. [17-19] We have held in situations where a child is removed from one parent’s home pursuant to the juvenile code that the juvenile court’s discretion regarding placement pending dispo- sition is limited by Nebraska’s “parental preference doctrine,” which governs the rights of the other parent against whom no allegations have been made. 54 The parental preference doctrine holds that in a child custody controversy between a biologi- cal parent and one who is neither a biological nor an adoptive parent, the biological parent has a superior right to the custody 49 See In re Interest of Sloane O., supra note 17 . 50 See, e.g., In re Interest of Karlie D., supra note 3. 51 See § 43-248. 52 See Neb. Rev. Stat. § 43-254 (Cum. Supp. 2018). 53 § 43-246(2). 54 See In re Interest of Kamille C. & Kamiya C., 302 Neb. 226 , 233, 922 N.W.2d 739 , 746 (2019).  - 846 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports IN RE INTEREST OF A.A. ET AL. Cite as 307 Neb. 817 of the child. 55 Under the parental preference doctrine, unless the State affirmatively shows a parent is unfit or has forfeited the right to custody, due regard for the parent’s natural right to the custody of a child requires that a parent be presump- tively regarded as the proper guardian. 56 Only exceptional circumstances involving proof of serious physical or psycho- logical harm to the child or a substantial likelihood of such harm will negate the superior right of a fit parent who has not forfeited parental rights to custody under the parental prefer- ence doctrine. 57 Thus, in In re Interest of Sloane O., 58 we held that due proc­ ess protected the custody rights of a mother whose child had been adjudicated due to the faults or habits of the father, which rights were “subject only to the State’s interest in protecting [the child] from harm.” 59 In considering the mother’s motion for temporary custody, we held that the juvenile court should have presumed under the parental preference doctrine that the mother was the best person to parent the child unless and until the State affirmatively demonstrated otherwise. 60 The mother in In re Interest of Sloane O. had been physi- cally separated from the father, and a divorce action was pending. We held that evidence that the mother had previously witnessed incidents of the father’s chaining the child to a couch was insufficient to meet the State’s burden to prove the mother unfit and overcome parental preference. 61 We reversed 55 Id. 56 See, e.g., In re Interest of Sloane O., supra note 17 ; In re Interest of Jaydon W. & Ethan W., 25 Neb. App. 562 , 909 N.W.2d 385 (2018); In re Interest of Miah T. & DeKandyce H., 23 Neb. App. 592 , 875 N.W.2d 1 (2016); In re Interest of Stephanie H. et al., supra note 40. 57 See State on behalf of Tina K. v. Adam B., supra note 30. 58 In re Interest of Sloane O., supra note 17 . 59 Id. at 903, 870 N.W.2d at 118. 60 See id. 61 See In re Interest of Sloane O., supra note 17 .  - 847 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports IN RE INTEREST OF A.A. ET AL. Cite as 307 Neb. 817 the juvenile court’s denial of the mother’s motion for custody and remanded the cause for further proceedings to consider the most up-to-date information regarding the child. 62 The Court of Appeals, in In re Interest of Stephanie H. et al., 63 held similarly when it reversed the juvenile court’s order denying the noncustodial mother’s motion for placement after her children had been removed from the custodial father’s home under allegations of sexual abuse. The Court of Appeals held that fundamental fairness demanded that the mother “be given prompt notice of any allegations against her which the State or [DHHS] contends make placement of her children with her contrary to the children’s best interests.” 64 The burden of proof was thereafter upon the State to overcome the parental preference doctrine. Evidence in In re Interest of Stephanie H. et al. that the mother was living with a man for the preceding 6 months, knowing he was on “‘work release’” 65 but not knowing whether he had a criminal record, did not “remotely resembl[e] an affirmative showing” 66 that the mother was unfit or that she had forfeited her parental rights. The State had neither alleged nor proved that the mother should not have custody of her children. 67 The Court of Appeals reversed the order of the juvenile court and remanded the cause with directions to place the children with the mother pending adjudication. The court noted, however, that its mandate did not preclude the State from coming forward in the future “with allegations and proof that [the mother was] not a fit custodial parent of her children.” 68 62 See id. 63 In re Interest of Stephanie H. et al., supra note 40. 64 Id. at 921-22, 639 N.W.2d at 680 . 65 Id. at 913, 639 N.W.2d at 674 . 66 Id. at 924, 639 N.W.2d at 682 . 67 In re Interest of Stephanie H. et al., supra note 40. 68 Id. at 926, 639 N.W.2d at 683 .  - 848 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports IN RE INTEREST OF A.A. ET AL. Cite as 307 Neb. 817 Likewise, in In re Interest of Jaydon W. & Ethan W., 69 the Court of Appeals reversed the juvenile court’s denial of the noncustodial father’s motion for custody in ongoing proceed- ings for a child adjudicated due to the fault or habits of the custodial mother. DHHS had objected to the father’s custody based on regression in the children’s behavior after visita- tion and a protection order that had expired approximately 11⁄2 years earlier. The juvenile court indicated custody would be revisited after DHHS completed further assessments ordered by the court. But, relying on the parental preference doctrine, the Court of Appeals described that the initial question must be whether the presumption that the children’s best interests are served by reuniting them with their father has been rebutted by clear and convincing evidence that the father is unfit or has forfeited his right to custody. The Court of Appeals found that it had not. While the Court of Appeals expressed in In re Interest of Jaydon W. & Ethan W. that it understood the juvenile court’s “reluctance to uproot the children from their long-term foster home, especially given their recent behavioral concerns,” 70 it held that the father’s right to custody could be “disrupted only upon a finding that he is unfit or has forfeited his right to custody.” 71 Still, the Court of Appeals explained that the juvenile court was not required to “order the children be turned over to [the father] immediately.” 72 It was constitutionally permissible and in the children’s best interests to implement a transition plan. The Court of Appeals remanded the cause with directions for the court to do so. [20] Our case law is clear that when the allegations of a petition for adjudication invoking the jurisdiction of the juve- nile court are against one parent only, the State cannot deny 69 In re Interest of Jaydon W. & Ethan W., supra note 56 . 70 Id. at 576, 909 N.W.2d at 396. 71 Id. 72 Id. at 576-77, 909 N.W.2d at 397.  - 849 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports IN RE INTEREST OF A.A. ET AL. Cite as 307 Neb. 817 the other parent’s request for temporary physical custody in lieu of a foster care placement unless it pleads and proves by a preponderance of the evidence that the other parent is unfit or has forfeited custody or that there are exceptional circum- stances involving serious physical or psychological harm to the child or a substantial likelihood of such harm. [21] We note, however, that the State is not required to grant a nonoffending biological parent’s request for custody before confirming that the parent has actually acquired con- stitutionally protected parental status. We observe that in In re Interest of Sloane O. and In re Interest of Stephanie H. et al., the custody and visitation rights of the nonoffending parent had been adjudicated by the district court. 73 Because parental preference derives not simply from biology but from the enduring relationship developed upon a biological parent’s commitment to the responsibilities of parenthood, children removed from their homes due to the fault or habits of one parent need not immediately and without some minimal inves- tigation be placed with the other biological parent whose status as having “an actual relationship of parental responsibility” 74 is unknown. Only once that relationship is established does such a parent who wishes for temporary physical custody during the pendency of juvenile proceedings have a parental preference that cannot be denied without notice and an affirm­ ative showing by a preponderance of the evidence 75 that the parent is unfit or has forfeited the parental relationship or that an exceptional circumstance of serious physical or psycho- logical harm to the child or a substantial likelihood of such harm exists. [22-24] Furthermore, as the Court of Appeals recognized in In re Interest of Jaydon W. & Ethan W., due process is 73 In re Interest of Sloane O., supra note 17 ; In re Interest of Stephanie H. et al., supra note 40. 74 Lehr v. Robertson, supra note 31 , 463 U.S. at 260 . 75 In re Interest of R.G., supra note 6.  - 850 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports IN RE INTEREST OF A.A. ET AL. Cite as 307 Neb. 817 “flexible,” 76 not “‘a fixed content unrelated to time, place and circumstances.’” 77 Accordingly, the nonoffending parent’s exercise of the parental preference of custody is not entirely unfettered during the juvenile court’s continuing jurisdiction under the juvenile code. The juvenile court, in the exercise of its parens patriae responsibilities, may develop a transition plan constituting a reasonable intrusion of limited duration into the nonoffending parent’s rights to autonomy in the care and cus- tody of the child. Likewise, it does not violate due process for the juvenile court in its determination of the child’s best inter- ests and in its role as adjudicator of the custody rights between two parents to require the nonoffending parent’s cooperation with goals of reunification back into the home from where the child was taken. 78 After all, the parental preference doctrine serves no role in determining the custody rights between two biological or legal parents. [25-27] It was established at the hearing on Joshua’s motion for placement that he is a parent entitled to substantial protec- tion under the Due Process Clause of the 14th Amendment. Yet, there was never a formal allegation placing Joshua on notice that he would have to defend against an attempt by the State to prove he had lost the presumption of parental prefer- ence. Procedural due process generally requires that notice be given of such a nature as to reasonably convey the required information. 79 In the context of denying parental preference in a placement decision during proceedings under § 43-247(3)(a), reasonable notice must include the factual bases for seek- ing to prove that the parent is unfit or has forfeited parental 76 In re Interest of Jaydon W. & Ethan W., supra note 56 , 25 Neb. App. at 572, 909 N.W.2d at 394. 77 Mathews v. Eldridge, supra note 25 , 424 U.S. at 334 . 78 See Vivek S. Sankaran, Parens Patriae Run Amuck: The Child Welfare System’s Disregard for the Constitutional Rights of Nonoffending Parents, 82 Temple L. Rev. 55 (2009). 79 See Mullane v. Central Hanover Tr. Co., 339 U.S. 306 , 70 S. Ct. 652 , 94 L. Ed. 865 (1950).  - 851 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports IN RE INTEREST OF A.A. ET AL. Cite as 307 Neb. 817 rights or that exceptional circumstances exist involving serious ­physical or psychological harm to the child or a substantial like- lihood of such harm. 80 While as to the parent from whose home the child was removed, such notice is ordinarily contained in the petition for adjudication, 81 allegations as to the fault or hab- its of the custodial parent do not operate to give notice to the noncustodial parent that the State seeks to rebut that parent’s right to parental preference in its placement decisions. We agree with Joshua that because he was not given notice that his fitness, forfeiture, or exceptional circumstances were to be adjudicated at the hearing on his motion for placement, the juvenile court could not properly deprive him of his right to custody under the parental preference doctrine. The court found Joshua unfit, but without specific allegations of unfit- ness. The court violated Joshua’s rights to procedural due process. Without a proper adjudication that the State had rebut- ted Joshua’s parental preference by a preponderance of the evidence, the parental preference doctrine required temporary placement of B.C. with Joshua, who has developed an enduring relationship with B.C. and has committed to the responsibilities of parenthood. We therefore reverse the district court’s order denying Joshua’s motion for placement on procedural due process grounds and remand the cause with directions to grant Joshua temporary physical placement after establishing, with the most up-to-date information, an appropriate plan for B.C.’s transition into Joshua’s temporary physical custody. Granting Joshua’s motion for temporary physical placement does not mean that the juvenile court lacks any authority over B.C. and Joshua. 82 At the time of B.C.’s removal, the mother was the de facto custodial parent, and the State’s current goal is reunification with her and placement back into the home B.C. was removed from. Joshua has not sought custody in 80 See id. 81 See In re Interest of Xavier H., 274 Neb. 331 , 740 N.W.2d 13 (2007). 82 See, § 43-247(3) and (5); In re Interest of Devin W. et al., supra note 15.  - 852 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports IN RE INTEREST OF A.A. ET AL. Cite as 307 Neb. 817 district court or through a bridge order 83 in juvenile court. The juvenile court has the power to require cooperation with orders of visitation with the mother and its reunification plan. Temporary physical custody with a noncustodial parent ought not create a “substantial and unnecessary hindrance to efforts of reunification” with the custodial parent. 84 Furthermore, a plan for B.C.’s welfare during the transition from his foster placement to Joshua’s care is an appropriate exercise of the State’s parens patriae jurisdiction so long as the plan is a tem- porary and minor intrusion into Joshua’s parental rights. We note that on remand, the State is free to attempt to prop- erly plead factual bases for an allegation that Joshua is unfit and again try to prove that placement with Joshua is not required under the parental preference doctrine. Parents have no double jeopardy defense against repeated efforts by the State to modify temporary placement during a juvenile proceeding. 85 Therefore, in order to provide guidance for an issue that is likely to resur- face on remand, we discuss the lower court’s approach to its fitness determination for Joshua, who is currently experiencing a physical disability. It appears that the State and the juvenile court were operating under the wrong standards. Instead of evaluating whether the State had affirmatively proved Joshua unfit, the juvenile court seemed to shift the burden onto Joshua to prove himself fit. The court con- cluded that Joshua’s lack of “cooperation” in allaying “con- cerns” rendered him unfit. But the “concerns” described did not themselves establish unfitness. Rather, they were ques- tions about how Joshua, wheelchair bound, would be able to address hypothetical scenarios that may or may not arise. The court and DHHS were worried about Joshua’s testimony that he required assistance from home health care aides in 83 See Neb. Rev. Stat. § 43-246.01 (Reissue 2016). 84 In re Interest of Ethan M., 15 Neb. App. 148 , 158, 723 N.W.2d 363 , 371 (2006). 85 See Santosky v. Kramer, supra note 29 .  - 853 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports IN RE INTEREST OF A.A. ET AL. Cite as 307 Neb. 817 the morning getting into his wheelchair, that he could not sit up on his own yet, and that he did not have overnight care. They had concerns about the fact that Joshua did not prepare his own meals. Joshua testified that he did not believe the lack of an over- night caretaker would endanger B.C., and he listed ways in which he could provide adequate food for B.C. When specific overnight scenarios were presented to Joshua during his tes- timony, he had adequate answers as to how he would handle them. For example, when asked about what he would do if there were a fire, Joshua responded that he would call the fire department. Joshua owns a four-bedroom home in the cen- ter of town which DHHS evaluated as being in appropriate condition. Joshua is able to support himself and B.C. on his disability income. Joshua has made arrangements for B.C.’s transportation to and from school, as well as to and from any appointments B.C. might have. While Joshua is not able to pre- pare meals himself, he testified as to several different options that would provide B.C. with sufficient food. B.C. lived with Joshua up until Joshua developed Guillain-Barre syndrome, the mother having described Joshua and B.C. as well bonded, and Joshua described a daily routine for B.C.’s care. Joshua described disability services, family, and members of the com- munity he could reach out to as needed when difficult situa- tions arise. Still, the juvenile court, in its determination of unfitness, relied on the lack of a written safety plan developed in cooper­ ation with DHHS that would address in more detail how B.C. would be cared for when Joshua lacked home health care or when B.C. would be in the home for longer periods of time. The court had concerns about the details of how Joshua would care for B.C. on weekends, snow days, and holidays, and how he might address nosebleeds and fevers developed in the mid- dle of the night. The court appeared to presume that because of Joshua’s disability, Joshua was unfit unless he could provide a detailed response to all of the posed hypothetical scenarios,  - 854 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports IN RE INTEREST OF A.A. ET AL. Cite as 307 Neb. 817 to be memorialized in a safety plan. Such a presumption is unlawful. [28] While not directly controlling, we note that the Legislature has declared in Neb. Rev. Stat. § 42-364.18 (Cum. Supp. 2018) that individuals with disabilities “continue to face unfair, preconceived, and unnecessary societal biases as well as antiquated attitudes regarding their ability to successfully par- ent their children.” And in Neb. Rev. Stat. § 42-364 (2) (Cum. Supp. 2018), the Legislature declared that “no presumption shall exist that either parent is more fit or suitable than the other” based on either “the sex or [the] disability of the parent.” Likewise, we hold that there is no presumption that a disabled parent is unfit, that a disabled parent has forfeited parental rights, or that exceptional circumstances exist involving seri- ous physical or psychological harm to the child or a substantial likelihood of such harm because a parent is disabled. [29] It is conceivable that a lack of adequate accommoda- tions could render a disabled parent unable to care for a child, thereby affecting the State’s placement decision. However, the simple fact that a parent is disabled does not overcome the presumption that the parent is a better caretaker of the parent’s own child than the State is. The lack of a detailed safety plan to account for possible hypothetical scenarios that Joshua may have to address differently from a parent who is not wheelchair bound did not affirmatively prove him unfit. The only evidence of unfitness presented at the hearing that was not related to Joshua’s disability was a couple of “hectic” visitations involving both B.C. and his half siblings, “unfounded” past intakes, the mother’s description of the inci- dent in 2015, and the mother’s general concern over exces- sive drinking. Parental unfitness means a personal deficiency or incapacity which has prevented, or will probably prevent, performance of a reasonable parental obligation in child rear- ing and which caused, or probably will result in, detriment to a child’s wellbeing. 86 The juvenile court did not appear to rely 86 Tilson v. Tilson, ante p. 275, 948 N.W.2d 768 (2020).  - 855 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports IN RE INTEREST OF A.A. ET AL. Cite as 307 Neb. 817 on such evidence in finding Joshua unfit under that definition, and, having reversed on procedural due process grounds, we need not determine in this appeal whether it would have been sufficient to sustain the State’s burden. We appreciate the juvenile court’s concern for the welfare of the child it has been called upon to protect due to the fault or habits of the mother. And the State is not bound to wait until a tragedy has befallen a child before intervention occurs upon proof that the fault or habits of a parent present a risk of harm to the child. 87 But no notice was provided to Joshua that his fitness was at issue; therefore, the court erred in finding him unfit and in denying his parental preference to physical cus- tody, which he sought to enforce through his motion for tempo- rary placement. In the event the State attempts again to prove Joshua unfit after proper notice has been given, we clarify that a physical disability does not shift the burden to the disabled parent to prove fitness despite such disability. 4. Equal Protection Because we reverse the December 23, 2019, order on pro- cedural due process grounds, we need not address Joshua’s arguments that the denial of his motion for placement violated equal protection. 5. Jurisdiction Over Adjudication Pending Appeal We next address Joshua’s argument in case No. S-20-244 that his appeal from the December 23, 2019, order denying his motion for placement deprived the juvenile court of jurisdic- tion to accept B.C.’s mother’s plea and adjudicate B.C. due to the fault or habits of his mother. Joshua points out that he is a party to the case in which the adjudication order was ren- dered and that his parental rights are affected by the adjudica- tion order that establishes with more permanency the court’s 87 See In re Interest of M.B. and A.B., 239 Neb. 1028 , 480 N.W.2d 160 (1992).  - 856 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports IN RE INTEREST OF A.A. ET AL. Cite as 307 Neb. 817 jurisdiction and legal custody over B.C., as well as its jurisdic- tion over Joshua pursuant to § 43-247(5). [30] Nebraska case law generally holds that once an appeal has been perfected, the lower court is divested of its subject matter jurisdiction over that case. 88 However, we have held that a juvenile court is not wholly divested of jurisdiction during the pendency of an appeal from a final order. 89 Neb. Rev. Stat. § 43-295 (Reissue 2016), which is directly applicable to the separate juvenile courts, states: Except when the juvenile has been legally adopted, the jurisdiction of the court shall continue over any juvenile brought before the court or committed under the Nebraska Juvenile Code and the court shall have power to order a change in the custody or care of any such juve- nile if at any time it is made to appear to the court that it would be for the best interests of the juvenile to make such change. Additionally, state law clearly provides, through Neb. Rev. Stat. § 43-2 ,106 (Reissue 2016), that in counties where there is no separate juvenile court, the county court sitting as a juvenile court shall continue to exercise supervision of the juvenile until a hearing is had in the appellate court and the appellate court enters an order making other disposition. Section 43-2,106 states in full: When a juvenile court proceeding has been instituted before a county court sitting as a juvenile court, the origi- nal jurisdiction of the county court shall continue until the final disposition thereof and no appeal shall stay the enforcement of any order entered in the county court. After appeal has been filed, the appellate court, upon application and hearing, may stay any order, judgment, 88 See, e.g., State v. Abram, 284 Neb. 55 , 815 N.W.2d 897 (2012); Billups v. Scott, 253 Neb. 293 , 571 N.W.2d 607 (1997); Anderzhon/Architects Inc. v. 57 Oxbow II Partnership, 250 Neb. 768 , 553 N.W.2d 157 (1996); Flora v. Escudero, 247 Neb. 260 , 526 N.W.2d 643 (1995). 89 See In re Interest of Jedidiah P., 267 Neb. 258 , 673 N.W.2d 553 (2004).  - 857 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports IN RE INTEREST OF A.A. ET AL. Cite as 307 Neb. 817 or decree on appeal if suitable arrangement is made for the care and custody of the juvenile. The county court shall continue to exercise supervision over the juvenile until a hearing is had in the appellate court and the appel- late court enters an order making other disposition. If the appellate court adjudges the juvenile to be a juvenile meeting the criteria established in subdivision (1), (2), (3), or (4) of section 43-247, the appellate court shall affirm the disposition made by the county court unless it is shown by clear and convincing evidence that the disposition of the county court is not in the best interest of such juvenile. Upon determination of the appeal, the appellate court shall remand the case to the county court for further proceedings consistent with the determination of the appellate court. Somewhat similarly, in dissolution proceedings, Neb. Rev. Stat. § 42-351 (2) (Reissue 2016) provides that when final orders are pending on appeal the court that issued such orders shall retain jurisdiction to provide for such orders regarding support, custody, par- enting time, visitation, or other access, orders shown to be necessary to allow the use of property or to prevent the irreparable harm to or loss of property during the pend­ ency of such appeal, or other appropriate orders in aid of the appeal process. Such orders shall not be construed to prejudice any party on appeal. In In re Interest of Jedidiah P., 90 we noted that while there is no statute governing the separate juvenile courts which, similarly to § 43-2,106, clearly articulates such courts’ con- tinuing jurisdiction during the pendency of an appeal, we could “discern no reason for a juvenile court not to retain such authority, regardless of whether it is a county court sitting as a juvenile court or a separate juvenile court.” Therefore, we 90 In re Interest of Jedidiah P., supra note 89, 267 Neb. at 263 , 673 N.W.2d at 557.  - 858 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports IN RE INTEREST OF A.A. ET AL. Cite as 307 Neb. 817 held that a separate juvenile court continues to exercise super- vision of the juvenile during an appeal. 91 [31] The extent of the continuing jurisdiction of the sepa- rate juvenile courts and the county courts sitting as juvenile courts during the pendency of an appeal is not without limits and must be determined by the facts of each case. 92 The ques- tion is the level of supervision the separate juvenile court may properly exercise during the pendency of the appeal, which is governed by §§ 43-295 and 43-2,106. 93 [32] We have held that the juvenile courts’ continuing juris- diction does not include the power to terminate a juvenile’s relationship with the child’s parents. 94 In contrast, our courts have found juvenile courts to have continuing jurisdiction dur- ing the pendency of an appeal to issue an order to show cause seeking enforcement of prior orders requiring a speech and language assessment 95 and to order the temporary suspension of visitation. 96 In In re Interest of Andrew H. et al., 97 the Court of Appeals held that an order of permanent disposition during the pendency of an appeal of an adjudication order went beyond the court’s continuing jurisdiction to exercise supervision over 91 See id. 92 See In re Interest of Becka P. et al., 296 Neb. 365 , 894 N.W.2d 247 (2017); In re Interest of Jedidiah P., supra note 89. See, also, e.g., In re Interest of Phoenix L., 270 Neb. 870 , 708 N.W.2d 786 (2006), disapproved on other grounds, In re Interest of Destiny A. et al., 274 Neb. 713 , 742 N.W.2d 758 (2007); In re Interest of Stacey D. & Shannon D., 12 Neb. App. 707 , 684 N.W.2d 594 (2004). 93 In re Interest of Jedidiah P., supra note 89. 94 See id. 95 In re Interest of Becka P. et al., supra note 92. 96 In re Interest of Angeleah M. & Ava M., 23 Neb. App. 324 , 871 N.W.2d 49 (2015), disapproved on other grounds, In re Estate of Abbott-Ochsner, 299 Neb. 596 , 910 N.W.2d 504 (2018). 97 In re Interest of Andrew H. et al., 5 Neb. App. 716 , 564 N.W.2d 611 (1997).  - 859 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports IN RE INTEREST OF A.A. ET AL. Cite as 307 Neb. 817 the juvenile; but in In re Interest of Jedidiah P., 98 we held that the juvenile court had continuing jurisdiction during the pendency of an appeal of the adjudication order to issue an order of disposition changing the juvenile’s custody from the juvenile detention center to a residential treatment center and granting temporary legal custody of the juvenile to DHHS. The difference was that in In re Interest of Jedidiah P., the order of disposition was a temporary placement order, while in In re Interest of Andrew H. et al., the court had issued a per- manent dispositional order adopting a case plan and ordering custody outside the home until completion. Under the specific facts presented here, we find that the juvenile court had continuing jurisdiction to accept the ­mother’s plea and adjudicate B.C. while Joshua’s appeal from the order denying his motion for placement was pending. Joshua’s reli- ance on In re Interest of Joshua M. et al. 99 to argue otherwise is misplaced. We held in In re Interest of Joshua M. et al. that the juvenile court lacked jurisdiction to terminate parental rights to three children during the pendency of appeals from a final order of placement outside the home preadjudication as to one child and from final orders modifying dispositional orders to place outside the home the two other children. The juvenile court did not proceed in this case to a termination of parental rights. We note that successful appeals challenging orders of adju- dication would eliminate a juvenile court’s jurisdiction over the juvenile and its power to issue permanent dispositional orders, while successful appeals from temporary placement orders would not. Neb. Rev. Stat. § 43-278 (Reissue 2016) provides that absent a showing of good cause, an adjudication hearing shall be held no more than 90 days after a petition is filed. As the juvenile court noted, B.C.’s mother had an inter- est in promptly adjudicating her children so that she could 98 In re Interest of Jedidiah P., supra note 89. 99 In re Interest of Joshua M. et al., 251 Neb. 614 , 558 N.W.2d 548 (1997).  - 860 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports IN RE INTEREST OF A.A. ET AL. Cite as 307 Neb. 817 more quickly proceed to a rehabilitative plan and placement of the children back in her care. Joshua’s appeal from the denial of his motion for temporary placement can have no effect on the juvenile court’s underlying jurisdiction in this case to promptly proceed with its statutory duties. The court’s order of adjudication was a proper exercise of the juvenile court’s ongoing supervisory powers during the pendency of Joshua’s appeal in case No. S-20-009. Accordingly, we hold that the order of adjudication is not void. 6. Disqualification Lastly, because judicial disqualification is not subject to a harmless error analysis 100 and this is a continuing matter, we address Joshua’s assignments of error challenging the juvenile court judge’s impartiality. Joshua argues that the juvenile court judge demonstrated personal bias and prejudice against him through leading questions of Knott during the December 23, 2019, hearing and the statement in the order of adjudication that “[t]he current goal in this case is to return the juveniles to the custody of [their mother].” [33] The Nebraska Revised Code of Judicial Conduct requires that “[a] judge shall hear and decide matters assigned to the judge, except when disqualification is required . . . .” 101 The code further states that “[a] judge shall disqualify him- self or herself in any proceeding in which the judge’s impar- tiality might reasonably be questioned . . . .” 102 Under the code, such instances in which the judge’s impartiality might reasonably be questioned specifically include where “[t]he judge has a personal bias or prejudice concerning a party or a party’s lawyer . . . .” 103 The issue of judicial disqualification 100 See Tierney v. Four H Land Co., 281 Neb. 658 , 798 N.W.2d 586 (2011). 101 Neb. Rev. Code of Judicial Conduct § 5-302.7. 102 Neb. Rev. Code of Judicial Conduct § 5-302.11(A). 103 § 5-302.11(A)(1).  - 861 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports IN RE INTEREST OF A.A. ET AL. Cite as 307 Neb. 817 is timely if submitted at the earliest practicable opportunity after the disqualifying facts are discovered. 104 [34,35] Assuming without deciding that the question of the juvenile court judge’s disqualification was not waived, we find no merit to Joshua’s assertion that the juvenile court judge should have been disqualified. There exists a presumption of judicial impartiality, and a party alleging that a judge acted with bias or prejudice bears a heavy burden of overcoming that presumption. 105 A judge’s opinions based on facts presented during a hearing, even if those opinions are stated before the hearing’s conclusion, are not indicative of bias by the judge unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible. 106 The juvenile court judge’s questioning and comment simply reflected the court’s opinions based on the facts presented at the hearings and the judge’s understanding of the law. Under the objective standard of reasonableness applicable to disqualification, the juvenile court judge’s questions and comment would not cause a rea- sonable person to question his impartiality. 107 VI. CONCLUSION In case No. S-20-009, we reverse the December 23, 2019, order denying Joshua’s motion for placement and remand the cause with directions for further proceedings to develop a transition plan. In case No. S-20-244, we affirm the order of adjudication. Judgment in No. S-20-009 reversed, and cause remanded with directions. Judgment in No. S-20-244 affirmed. 104 Tierney v. Four H Land Co., supra note 100. 105 In re Interest of Jamyia M., 281 Neb. 964 , 800 N.W.2d 259 (2011). 106 See In re Interest of J.K., 300 Neb. 510 , 915 N.W.2d 91 (2018). 107 See id.

2020-12-04 03:00:18.016505+00

https://cdn.ca9.uscourts.gov/datastore/opinions/2020/12/03/20-55907.pdf

FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 3 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT HARVEST ROCK CHURCH, INC., itself No. 20-55907 and on behalf of its member churches in California; HARVEST INTERNATIONAL D.C. No. MINISTRY, INC., itself and on behalf of its 2:20-cv-06414-JGB-KK member churches in California, Central District of California, Los Angeles Plaintiffs-Appellants, ORDER v. GAVIN NEWSOM, in his official capacity as Governor of the State of California, Defendant-Appellee. On Remand from the Supreme Court of the United States Before: O'SCANNLAIN, RAWLINSON, and CHRISTEN, Circuit Judges. Pursuant to the Supreme Court’s order in Harvest Rock Church v. Newsom, No. 20A94, 592 U.S. ___ (Dec. 3, 2020), we vacate our October 1, 2020, order denying Harvest Rock Church’s motion for an injunction pending appeal; vacate the district court’s September 2, 2020, order denying Harvest Rock Church’s motion for a preliminary injunction; and remand to the district court for further consideration in light of Roman Catholic Diocese of Brooklyn v. Cuomo, No. 20A87, 592 U.S. ___ (Nov. 25, 2020).  Harvest Rock Church’s petition for rehearing en banc is DENIED as moot. The motions to appear as amicus curiae, filed by Leading Epidemiologists and Public Health Experts (ECF No. 42) and by Americans United for Separation of Church and State, et al. (ECF No. 52), are DENIED as moot. REMANDED. 2

2020-12-04 06:08:00.391635+00

https://www.nebraska.gov/apps-courts-epub/public/viewOpinion?docId=N00007477PUB

Nebraska Supreme Court Online Library www.nebraska.gov/apps-courts-epub/ 12/04/2020 12:07 AM CST - 795 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports TDP PHASE ONE v. THE CLUB AT THE YARD Cite as 307 Neb. 795 TDP Phase One, LLC, appellee, v. The Club at the Yard, LLC, doing business as Rule G Night Club, and Eric F. Marsh, appellants. ___ N.W.2d ___ Filed November 13, 2020. No. S-19-1198. 1. Jurisdiction. The question of jurisdiction is a question of law. 2. Jurisdiction: Appeal and Error. It is the power and duty of an appel- late court to determine whether it has jurisdiction over the matter before it, irrespective of whether the issue is raised by the parties. 3. Claims: Parties: Judgments: Appeal and Error. Where the proceed- ings below involved multiple claims for relief or multiple parties, and the court has adjudicated fewer than all the claims or the rights and liabilities of fewer than all the parties, then, absent a specific statute governing the appeal providing otherwise, Neb. Rev. Stat. § 25-1315 (Reissue 2016) controls and mandates that the order is not immediately appealable unless the lower court issues an express determination for the entry of judgment upon an express determination that there is no just reason for delay. 4. Statutes: Final Orders: Intent. The intent behind Neb. Rev. Stat. § 25-1315 (1) (Reissue 2016) was to prevent interlocutory appeals, not make them easier. 5. Claims: Parties: Judgments: Appeal and Error. Neb. Rev. Stat. § 25-1315 (1) (Reissue 2016) attempts to strike a balance between the undesirability of piecemeal appeals and the potential need for making review available at a time that best serves the needs of the parties. 6. ____: ____: ____: ____. Certification of a final judgment must be reserved for the “unusual case” in which the costs and risks of multiply- ing the number of proceedings and of overcrowding the appellate docket are outbalanced by the pressing needs of the litigants for an early and separate judgment as to some claims or parties.  - 796 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports TDP PHASE ONE v. THE CLUB AT THE YARD Cite as 307 Neb. 795 7. Claims: Parties: Final Orders. The power Neb. Rev. Stat. § 25-1315 (1) (Reissue 2016) confers upon the trial judge should be used only in the “infrequent harsh case” as an instrument for the improved administration of justice, based on the likelihood of injustice or hardship to the parties of a delay in entering a final judgment as to part of the case. 8. Parties: Judgments: Appeal and Error. Every party seeking certifica- tion may eventually appeal the judgment in question. 9. Claims: Final Orders. A court should be particularly cautious in cer­ tifying as final a judgment on a claim which is not truly distinct from the claims on remaining issues, for even if the certified judgment is inher- ently final, the facts underlying the claim resulting in that judgment may be intertwined with the remaining issues. 10. Statutes. To the extent there is a conflict between two statutes on the same subject, the specific statute controls over the general. 11. Statutes: Appeal and Error. When a statute is not ambiguous, an appellate court ordinarily looks no further than the plain language of the statute. Statutory language is to be given its plain and ordinary meaning, and an appellate court will not resort to interpretation to ascertain the meaning of statutory words which are plain, direct, and unambiguous. 12. Actions: Parties: Final Orders: Appeal and Error. One may bring an appeal pursuant to Neb. Rev. Stat. § 25-1315 (1) (Reissue 2016) only when (1) multiple causes of action or multiple parties are present, (2) the court enters a final order within the meaning of Neb. Rev. Stat. § 25-1902 (Supp. 2019) as to one or more but fewer than all of the causes of action or parties, and (3) the trial court expressly directs the entry of such final order and expressly determines that there is no just reason for delay of an immediate appeal. 13. Claims: Parties: Final Orders: Appeal and Error. In the absence of an express determination that there is no just reason for delay and upon an express direction for the entry of judgment, orders, however desig- nated, adjudicating fewer than all claims or the rights of fewer than all the parties are not final. Absent an entry of judgment under Neb. Rev. Stat. § 25-1315 (Reissue 2016), no appeal will lie unless all claims have been disposed as to all parties in the case. Appeal from the District Court for Lancaster County: Lori A. Maret, Judge. Appeal dismissed. David A. Domina, of Domina Law Group, P.C., L.L.O., for appellants. Gregory S. Frayser and Nathan D. Clark, of Cline, Williams, Wright, Johnson & Oldfather, L.L.P., for appellee.  - 797 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports TDP PHASE ONE v. THE CLUB AT THE YARD Cite as 307 Neb. 795 Heavican, C.J., Miller-Lerman, Cassel, Stacy, and Freudenberg, JJ. Freudenberg, J. NATURE OF CASE After its tenant failed to pay rent and refused to vacate the premises, a commercial landlord brought suit for restitution of premises pursuant to the forcible entry and detainer (FED) stat- utes, Neb. Rev. Stat. §§ 25-21 ,219 through 25-21,235 (Reissue 2016 & Cum. Supp. 2018). The landlord also brought claims for breach of the lease agreement and breach of the guaranty agreement. The tenant counterclaimed for breach of contract, breach of implied covenant of good faith and fair dealing, money had and received, and fraud in the inducement of the lease and guaranty agreements. The tenant also brought suit against the property management company and its owners, as third-party defendants, for civil conspiracy to tortiously inter- fere with a business expectancy and fraud in the inducement of the lease and guaranty agreements. The tenant appeals from an order of summary judgment in favor of the landlord on its FED claim. The district court’s order did not resolve the remaining claims of either the ­landlord or the tenant, and no request was made of the district court to issue a certification under Neb. Rev. Stat. § 25-1315 (Reissue 2016). We hold that this court is without jurisdiction over the present appeal. BACKGROUND TDP Phase One, LLC (TDP), a commercial landlord, entered into a 10-year lease agreement with The Club at the Yard, LLC, doing business as Rule G Night Club (Rule G), signed by its managing member and guarantor, Eric F. Marsh, in 2013. The property at issue is located in the “Railyard,” an entertainment district in Lincoln, Nebraska, with a common area in the middle and tenants surrounding it. TDP owns the Railyard. The tenants surrounding the Railyard share costs of the common area, which they pay pursuant to the terms  - 798 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports TDP PHASE ONE v. THE CLUB AT THE YARD Cite as 307 Neb. 795 of their lease agreements. When Rule G failed to pay rent in April through July 2019, TDP prepared a 3-day notice to quit, mailing the notice to Marsh and hand delivering a copy to the attorney of record at all relevant times for Rule G. TDP then brought suit against Rule G, alleging restitution of the premises pursuant to §§ 25-21,219 through 25-21,235, as well as claims of breach of contract relating to both the lease and the guaranty agreements. TDP asserted that Rule G failed to pay rent in breach of its lease, that Marsh refused to pay the rent owed as Rule G’s guarantor, and that Rule G refused to vacate the premises after TDP prepared and sent a 3-day notice to quit pursuant to § 25-21,221. In its restitution action, TDP sought restitution, costs, and such other relief as was just and equitable. Rule G challenged proper notice pursuant to § 25-21,221 and raised various defenses, including waiver, prior material breach, and that Rule G was entitled to a setoff due to its over- payment of rent. Rule G also counterclaimed against TDP for (1) breach of contract, (2) breach of implied covenant of good faith and fair dealing, (3) money had and received, and (4) fraud in the inducement of the lease and the guaranty agree- ments. Finally, Rule G filed a third-party complaint against the management company for the property and its sole members, alleging they conspired to tortiously interfere with its business expectancies. TDP moved for partial summary judgment, seeking a deter- mination of its FED claim, asserting that there was no gen­ uine issue of material fact as to its right to restitution of the premises. The court determined that Rule G failed to make all payments of rent due under the lease agreement and failed to deliver possession of the property within 3 days of the notice. The court found this entitled TDP to immediate restitution of the property. In its order, the court rejected Rule G’s claim that TDP did not satisfy the notice requirement required by § 25-21,221. It declined to construe § 25-21,221 as requiring notice to be served in the same manner as a summons in a civil action.  - 799 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports TDP PHASE ONE v. THE CLUB AT THE YARD Cite as 307 Neb. 795 Further, the court was not persuaded by Rule G’s arguments that TDP waived its FED claim by accepting rental payments after filing suit and that there was a genuine issue of material fact as to whether Rule G was entitled to a setoff for the over- payment of rent under the lease agreement. The court noted that the lease agreement clearly provided that the acceptance of rent is not a waiver of default and that setoff for overpayment of the rent was explicitly precluded by the lease agreement. The court further observed that Rule G’s fraudulent induce- ment claims were barred by the statute of limitations. It did not address any other counterclaims or third-party claims. Rule G and Marsh appeal the order granting summary judg- ment to TDP on its FED claim. However, neither sought a § 25-1315 certification from the district court. ASSIGNMENTS OF ERROR Rule G and Marsh assign that the district court erred in granting the partial summary judgment for TDP, because the district court erroneously (1) concluded overpayments could not be considered to prove that the rents were paid, (2) did not allow discovery concerning prepayments of rent and calcula- tions of rent credits, (3) found proper presuit notice was given under § 25-21,221, and (4) granted summary judgment for restitution against a lease guarantor who is not a party in pos- session of the leased premises. STANDARD OF REVIEW [1] The question of jurisdiction is a question of law. 1 ANALYSIS [2] Before reaching the assignments of error asserted by Rule G and Marsh, this court must first determine whether it has jurisdiction over this appeal. It is the power and duty of an appellate court to determine whether it has jurisdiction 1 State v. Harris, ante p. 237, 948 N.W.2d 736 (2020). See, also, Federal Nat. Mortgage Assn. v. Marcuzzo, 289 Neb. 301 , 854 N.W.2d 774 (2014).  - 800 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports TDP PHASE ONE v. THE CLUB AT THE YARD Cite as 307 Neb. 795 over the matter before it, irrespective of whether the issue is raised by the parties. 2 In doing so, we find that we lack juris- diction over the present appeal, because it lacks certification under § 25-1315. Section 25-1315(1) provides in full: When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determina- tion and direction, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of deci- sion is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties. [3] Where the proceedings below involved multiple claims for relief or multiple parties, and the court has adjudicated fewer than all the claims or the rights and liabilities of fewer than all the parties, then, absent a specific statute govern- ing the appeal providing otherwise, 3 § 25-1315 controls and mandates that the order is not immediately appealable unless the lower court issues an “express direction for the entry of judgment” upon “an express determination that there is no just reason for delay.” 2 Bailey v. Lund-Ross Constructors Co., 265 Neb. 539 , 657 N.W.2d 916 (2003). 3 See R & D Properties v. Altech Constr. Co., 279 Neb. 74 , 776 N.W.2d 493 (2009) (finding Neb. Rev. Stat. § 25-1315.03 (Reissue 2016) to be more specific and controlling statute over § 25-1315 and allowing appeal without § 25-1315 certification).  - 801 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports TDP PHASE ONE v. THE CLUB AT THE YARD Cite as 307 Neb. 795 This case involved both multiple claims for relief and ­ ultiple parties, and the order of restitution appealed from m adjudicated both fewer than all the claims and the rights and liabilities of fewer than all the parties. TDP filed suit against Rule G for breach of contract, breach of guaranty, and restitu- tion of premises. Rule G in turn brought several counterclaims, as well as a third-party complaint against the property’s man- agement company for fraud and tortious interference. TDP filed a motion for partial summary judgment, and the district court entered an order of restitution granting TDP restitution of the premises. This order disposed only of TDP’s restitution- of-premises claim against Rule G. The district court has yet to adjudicate TDP’s breach of contract and guaranty claims, Rule G’s counterclaims against TDP, and Rule G’s third-party claims against the property’s management company. [4,5] The intent behind § 25-1315(1) was to prevent inter- locutory appeals, not make them easier. 4 Prior to the enactment of § 25-1315, an order that effected a dismissal with respect to one of multiple parties was a final, appealable order, and the complete dismissal with prejudice of one of multiple causes of action was a final, appealable order, but an order dismiss- ing one of multiple theories of recovery, all of which arose from the same set of operative facts, was not a final order for appellate purposes. 5 Section 25-1315 was an evident attempt by the Legislature to simplify the issue and clarify many of the questions regarding final orders when there are multiple parties and claims. 6 It attempts to strike a balance between the undesirability of piecemeal appeals and the potential need for making review available at a time that best serves the needs of the parties. 7 4 Rafert v. Meyer, 298 Neb. 461 , 905 N.W.2d 30 (2017). 5 Cerny v. Todco Barricade Co., 273 Neb. 800 , 733 N.W.2d 877 (2007). 6 Id. 7 Id.  - 802 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports TDP PHASE ONE v. THE CLUB AT THE YARD Cite as 307 Neb. 795 [6-9] Certification of a final judgment must be reserved for the “unusual case” in which the costs and risks of multiplying the number of proceedings and of overcrowding the appellate docket are outbalanced by the pressing needs of the litigants for an early and separate judgment as to some claims or par- ties. 8 The power § 25-1315(1) confers upon the trial judge should be used only in the “infrequent harsh case” as an instru- ment for the improved administration of justice, based on the likelihood of injustice or hardship to the parties of a delay in entering a final judgment as to part of the case. 9 Every party seeking certification may eventually appeal the judgment in question. 10 A court should be particularly cautious in certify- ing as final a judgment on a claim which is not truly distinct from the claims on remaining issues, for even if the certified judgment is inherently final, the facts underlying the claim resulting in that judgment may be intertwined with the remain- ing issues. 11 [10] To the extent there is a conflict between two statutes on the same subject, the specific statute controls over the general, 12 but we find no statute applicable here that conflicts with § 25-1315. The statute applicable in the present case, § 25-21,233, provides: “Any party against whom judgment has been entered in an action of [FED], or forcible detention only, of real property, may appeal as provided for in a civil action.” There is nothing in the language of § 25-21,233 indicating that an order of restitution resolving a FED claim, when it adjudi- cates fewer than all claims for relief and the rights and liabili- ties of fewer than all the parties in the action in which such claim was brought, should be immediately appealable without having to obtain a certified judgment pursuant to § 25-1315. 8 Rafert v. Meyer, supra note 4 . 9 Id. 10 Cerny v. Todco Barricade Co., supra note 5. 11 Id. 12 Becher v. Becher, 299 Neb. 206 , 908 N.W.2d 12 (2018).  - 803 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports TDP PHASE ONE v. THE CLUB AT THE YARD Cite as 307 Neb. 795 [11] When a statute is not ambiguous, an appellate court ordinarily looks no further than the plain language of the stat- ute. 13 Statutory language is to be given its plain and ordinary meaning, and an appellate court will not resort to interpretation to ascertain the meaning of statutory words which are plain, direct, and unambiguous. 14 Section 25-21,233, by its plain language, directs that the party against whom judgment has been entered in a FED action may appeal only “as provided for in a civil action.” And § 25-1315 governs civil actions. Thus, by the plain language of § 25-21,233, when the FED claim is part of an action involving multiple claims or multiple parties, § 25-1315 governs the immediate appealability of an order determining the FED claim. The language of § 25-21,233 is distinguishable from § 25-1315.03, which we held in R & D Properties v. Altech Constr. Co. 15 to be a more specific statute that controls over § 25-1315 in determining whether the order described therein is immediately appealable. Section 25-1315.03 plainly states that an order granting or denying a new trial is “an appeal- able order,” with the time and manner for the appeal of such order to be as for an appeal from a judgment, decree, or final order. Thus, in R & D Properties, we found we had jurisdic- tion over an appeal from an order granting a new trial on the building owner’s claims against a contractor, even though a third-party claim against a subcontractor was still pending and the court did not issue a certification under § 25-1315. 16 The order granting a new trial was final and appealable with- out a § 25-1315 certification, because the language designat- ing the order granting a new trial as “an appealable order” plainly controlled over the mandate in § 25-1315 that “any order or other form of decision, however designated, which 13 See State v. McGuire, 301 Neb. 895 , 921 N.W.2d 77 (2018). 14 Moser v. State, ante p. 18, 948 N.W.2d 194 (2020). See, also, State v. McGuire, supra note 13 . 15 R & D Properties v. Altech Constr. Co., supra note 3. 16 Id.  - 804 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports TDP PHASE ONE v. THE CLUB AT THE YARD Cite as 307 Neb. 795 adjudicates fewer than all the claims or the rights and liabili- ties of fewer than all the parties shall not terminate the action as to any of the claims or parties.” The plain language of § 25-21,233 does not designate an order determining the rights and liabilities in a FED action to be “an appealable order.” Rather, it generally states that any party against whom “judgment” has been entered in an action of FED or forcible detention only “may appeal as provided for in a civil action.” As already stated, § 25-1315 is part of how one may appeal in a civil action, when multiple claims or par- ties are involved. We also note that where there are multiple parties or multiple claims, fewer than all of which have been adjudicated, there is no “judgment” as defined by Neb. Rev. Stat. § 25-1301 (1) (Cum. Supp. 2018). 17 While prior versions of § 25-21,233 had language directing, without caveat, that the judgment in the FED action could be appealed, this language had been adopted at a time when FED actions were not joined with other claims, and it has since been amended. At the time prior versions of § 25-21,233 were in effect, the language of the statute combined with the rule that FED claims cannot litigate questions outside of the immediate right to possession and statutorily designed incidents thereto, so that claims for damages related to rent costs and restitution were not joined in an action with claims nonrelated to rental damages or restitution of the property. 18 But, after the passage of the liberal joinder amendments in 1998, 19 the Legislature accounted for the possibility of joinder of FED and non-FED claims and, accordingly, the possible implication of § 25-1315, by qualifying in § 25-21,233 that the appeal must be “as pro- vided for in a civil action.” 17 See Boyd v. Cook, 298 Neb. 819 , 906 N.W.2d 31 (2018). 18 See Federal Nat. Mortgage Assn. v. Marcuzzo, supra note 1. 19 See, e.g., Neb. Rev. Stat. §§ 25-311 , 25-320, 25-701, and 25-705 (Reissue 2016); Introducer’s Statement of Intent, L.B. 234, Judiciary Committee, 95th Leg., 1st Sess. (Feb. 21, 1997).  - 805 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports TDP PHASE ONE v. THE CLUB AT THE YARD Cite as 307 Neb. 795 Nothing in the history of § 25-21,233 indicates any intent on the part of the Legislature after the passage of the liberal joinder amendments to allow orders determining FED claims to be immediately appealable even when fewer than all claims or the rights of fewer than all the parties in the action have been adjudicated. Section 25-21,233 originally stated: “Any party against whom judgment has been entered by this court in an action of [FED], or forcible detention only, of real property, may appeal therefrom to the district court, except that the right of appeal herein granted shall not be granted from judgments entered by default.” 20 At that time, FED actions originated in municipal courts and “by this court” referred to munici- pal courts. 21 In 1972, the Legislature amended § 25-21,233 by taking out “by this court,” because a reorganization of the courts in Nebraska was occurring and the municipal courts of Lincoln and Omaha, Nebraska, were limited to the cities’ corporate limits. 22 In 1981, the Legislature amended the FED statutory scheme to account for the fact that municipal courts no longer existed. The amendment allocated jurisdiction to both county and district courts to handle FED claims. 23 Also in 1981, the language of § 25-21,233 was amended to allow an appeal of a FED claim “as provided in sections 24-541.01 to 24-541.10 and 24-551.” Neb. Rev. Stat. §§ 24-541.01 to 24-541.10 (Reissue 1985), currently found at Neb. Rev. Stat. §§ 25-2728 to 25-2738 (Reissue 2016 & Cum. Supp. 2018), laid out the location, deadlines, and procedures for appealing cases from county court to district court. This language in § 25-21,233 20 1929 Neb. Laws, ch. 82, § 131, p. 312. 21 1929 Neb. Laws, ch. 82, § 117, p. 309. 22 Compare Neb. Rev. Stat. § 26-1 ,132 (Reissue 1964), with Neb. Rev. Stat. § 24-582 (Reissue 1975). See, also, Introducer’s Statement of Purpose, L.B. 1032, Judiciary Committee, 82d Leg., 2d Sess. (Jan 24, 1972). 23 Neb. Rev. Stat. § 24-568 (Reissue 1985).  - 806 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports TDP PHASE ONE v. THE CLUB AT THE YARD Cite as 307 Neb. 795 was adopted in order to streamline the appeal process from county courts to district courts. 24 Lastly, in 2004, the Legislature corrected an error in § 25-21,233 indicating that FED claims brought in district court were appealed to district court. The 2004 amendment clarified that appeals of FED claims brought in district court were to be appealed as provided for in a civil action. The pre-2004 error was due to the jurisdictional language in § 25-21,219 giving jurisdiction of FED claims to county and district courts and then the language in § 25-21,233 allowing for appeals “as provided in sections 25-2728 to 25-2738,” which laid out the process to appeal cases from county to dis- trict court. The statutory scheme read with § 25-21,233 made it sound as if the appeals could go only to district court, based on the language “may appeal as provided in sections 25-2728 to 25-2738.” So the amendment in 2004 removed “in sections 25-2728 to 25-2738” and added “for in a civil action,” so that the appeals of FED actions would now be allowed as any other appeal would. 25 The current statutory scheme adopted in 2004, combined with the liberal joinder rules adopted in 1998, means that an action involving multiple claims, only one of which arises under the FED statutes, can be presented in a single action. With this possibility, the Legislature’s amendment of § 25-21,233 to state that an appeal from a “judgment” in a FED action may be appealed only as provided “for in a civil action” 26 indicates its intent that appeals involving FED claims 24 Introducer’s Statement of Intent, L.B. 42, Judiciary Committee, 87th Leg., 1st Sess. (Jan. 21, 1981). See, also, §§ 24-582 (Reissue 1985) and 24-568. 25 Compare § 25-21,219 (Reissue 1995) (giving jurisdiction of FED actions to county and district courts), § 25-21,233 (Reissue 1995) (providing specific appeal statutes), and §§ 25-2728 to 25-2738 (specific appeal statutes from § 25-21,223 that laid out appeal process from county to district court), with § 25-21,233 (Reissue 2008). 26 See 2004 Neb. Laws, L.B. 1207.  - 807 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports TDP PHASE ONE v. THE CLUB AT THE YARD Cite as 307 Neb. 795 should now be governed by the normal appeal process for civil actions—which would require satisfying Neb. Rev. Stat. § 25-1902 (Supp. 2019) or § 25-1301(1) and, when implicated, § 25-1315. [12,13] We need not conduct an analysis of whether the FED order of partial summary judgment that Rule G and Marsh attempt here to appeal was a final order under § 25-1902 or a judgment under § 25-1301, because we conclude that § 25-1315 was implicated and the court did not certify the appeal as required by that statute. With the enactment of § 25-1315(1), one may bring an appeal pursuant to such sec- tion only when (1) multiple causes of action or multiple par- ties are present, (2) the court enters a final order within the meaning of § 25-1902 as to one or more but fewer than all of the causes of action or parties, and (3) the trial court expressly directs the entry of such final order and expressly determines that there is no just reason for delay of an immediate appeal. 27 In the absence of an express determination that there is no just reason for delay upon an express direction for the entry of judgment, orders, however designated, adjudicating fewer than all claims or the rights of fewer than all the parties are not final. 28 Absent an entry of judgment under § 25-1315, no appeal will lie unless all claims have been disposed as to all parties in the case. 29 The order of partial summary judgment in this matter adju- dicated both fewer than all claims presented in the underly- ing action and the rights of fewer than all the parties. The district court did not make an express direction for the entry of judgment upon an express determination that there is no just reason for delay. Therefore, we lack jurisdiction over TDP’s appeal. 27 Rafert v. Meyer, supra note 4 . 28 See Boyd v. Cook, supra note 17 . 29 Id.  - 808 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports TDP PHASE ONE v. THE CLUB AT THE YARD Cite as 307 Neb. 795 CONCLUSION This court is without jurisdiction over the present appeal, because the order of restitution disposing of the FED action did not satisfy § 25-1315(1). Therefore, the appeal is dismissed. Appeal dismissed. Funke and Papik, JJ., not participating.

2020-11-20 19:45:11.174741+00

Charles T. Boynton, II v. Commissioner. Boynton v. Commissioner Docket No. 4769-66. United States Tax Court T.C. Memo 1969-204; 1969 Tax Ct. Memo LEXIS 90; 28 T.C.M. (CCH) 1075; T.C.M. (RIA) 69204; September 30, 1969. Filed *90 Held, that the petitioner was not in the business of buying and selling real estate and that a loss sustained upon the foreclosure of a parcel of real estate which he owned was not an ordinary loss, but was a capital loss which under section 172(d) of the Internal Revenue Code of 1954 was not deductible in computing a claimed net operating loss. Garvin W. Videen, Arizona Land Title Bldg., Tucson, Ariz., for the petitioner. Richard Rink, for the respondent. ATKINS Memorandum Findings of Fact and Opinion ATKINS, Judge: The respondent determined a deficiency in income tax for the taxable year 1960 in the amount of $22,657.45. The issue for decision is whether the respondent erred in determining that a loss of $46,000 sustained by the petitioner when certain property was foreclosed in 1963 constituted a capital loss which, under section 172(d)(2) of the Internal Revenue Code of 1954, would not be taken into account in computing a net operating loss for the taxable year 1963 for purposes of carryback to the taxable year 1960. Findings of Fact The petitioner filed his Federal income tax returns for the taxable years 1960 and 1963 with the district director of internal revenue, Phoenix, *91 Arizona. At the time the petition herein was filed he was a resident of Hollywood, California. Prior to 1960, the petitioner resided in Chicago, Illinois, where he was engaged in manufacturing paper boxes. In 1960 he moved to Tucson, Arizona, where he purchased a home on September 10, 1960 for $67,500, making a down payment of $35,000. This move was prompted by his interest in buying and selling property in the Tucson area. Fred Potter, an attorney, had also moved from Chicago to Tucson. On or about March 1, 1959, the petitioner and Potter orally agreed to buy and sell such real estate in the Tucson area as they might mutually agree upon. The understanding was that the petitioner would provide the capital, which would draw interest at 6 percent during the time it was invested in property, and upon the sale of the property the gain, after payment of the interest, was to be divided equally between them. They did not anticipate any losses and consequently there was no specific agreement with regard thereto. However, neither of them considered that Potter was obligated to reimburse petitioner for any loss sustained. It was understood that both would engage in the work. The petitioner obtained *92 the capital to be used by selling all the stock he owned. On June 15, 1960, Potter, Milton Wesley and R.A. Schendel entered into a trust agreement with the Arizona Land Title and Trust Company to which they caused to be transferred as trustee certain real property, hereinafter referred to as the Williamson property, in the El Sahuaro Addition to Tucson. The transferors (sellers) were Stanley and Laura Williamson. The Trust Company, as trustee, paid the Williamsons a purchase price of $160,000 which consisted of a down payment of $46,000, the trust company's note for $77,750, secured by a third mortgage on the property, payable at an annual rate of $15,550 plus interest, and the assumption by the trust company of the first and second mortgages on the property in the amounts of $15,000 and $21,250, respectively. The beneficial interests in the trust were stated to be Potter 90 percent, Wesley 5 percent, and Schendel 5 percent. The petitioner furnished the $46,000 down payment and it was understood between him and Potter that they each owned an equal interest in the property. The allocation of 5 percent interests to Wesley and Schendel, who were real estate agents in Tucson, 1076 was *93 made to promote the sale of the property by enabling them to share in the proceeds. The Williamson property bordered on the major 4-lane interstate highway which ran between Phoenix and Tucson. It was located in a business area among various small industrial, wholesale, and retail interests including motels, trailer parks, and restaurants. The property had the highest elevation along that portion of the highway, giving it a view of the surrounding area. When the property was acquired it was already zoned to the satisfaction of the buyers, had been sub-divided, and utilities had been installed up to the property line. The petitioner made inquiry about an access-way for an alley which was held by the city on the property and found that for a fee the city would allow such to be closed off. It was the purpose of petitioner and Potter in acquiring the property to sell it at a profit as soon as possible. Shortly after the purchase the petitioner advertised the property for sale and it was orally listed for sale with the Arizona Land Title and Trust Company which placed a large "For Sale" sign on the property, at its expense. On April 25, 1961, petitioner and Potter gave Schendel a power *94 of attorney to sell their interest in the property, in order that the property could be conveyed or an offer accepted if Potter should be out of town. No selling price was fixed in the power of attorney. There were then some prospective purchasers but none who were satisfactory. It was thought that the property could be sold to a motel company, but as time went on it became apparent that no such company was interested in building there because of the Tucson economy. Thereupon, at a time not disclosed, Potter and petitioner concluded that it would be necessary to make the property more attractive. They contacted James Gremanis who suggested that if a deluxe club and restaurant facility were built on the front portion of the property the remainder could more easily be sold to a motel company because of access to such a facility. He also advised that financing for such a project could be obtained. Some time in 1962 a tentative agreement was reached with an architect, Nicholas Sakellar, who prepared an artist's rendering of a club and restaurant facility. Petitioner and Potter engaged Gremanis to attempt to obtain a commitment for financing for such a project. Gremanis made trips to New *95 York, Boston, Los Angeles, and Seattle for this purpose, and was paid $1,000 by petitioner and Potter. The petitioner and Potter took the architectural rendering to both prospective purchasers and finance companies, hoping thereby to effect a sale of the front portion of the property to one who would undertake such a project. It was not the intention of petitioner and Potter to build or operate this facility themselves. They planned to hold the rear portion of the property for sale to a motel company. Apparently, all these efforts were unsuccessful. No development or improvement was ever made on the property. On August 14, 1962, Schendel and Wesley assigned their beneficial interest in the trust and property to Potter. On April 29, 1963, Potter assigned his entire interest in the trust and property to the petitioner. 1*96 On January 30, 1963, a mortgage foreclosure action was instituted by the Williamsons against the trustee for failure to make payments on the three mortgages and, after judgment and sheriff's sale, the property was conveyed to the Williamsons by sheriff's deed dated October 11, 1963. The petitioner did not recover any of the $46,000 down payment which he had made. In his income tax return for the taxable year 1963, the petitioner claimed a deduction of $46,000 as a loss upon the foreclosure of the Williamson property on Schedule C, Form 1040, under the *97 category "Losses of business property" and reported a net operating loss of $40,181.27. 1077 He thereupon claimed an overassessment of $24,760.39 for the taxable year 1960 based upon the carryback of the claimed net operating loss for 1963. The respondent tentatively allowed an overassessment of $22,657.45 for 1960. In the notice of deficiency for the taxable year 1960, the respondent determined that no net operating loss was available to the petitioner from 1963 with the explanation that "the business loss claimed on your 1963 return in the amount of $46,000 represents the loss of an interest in a capital asset not connected with your trade or business and is deductible as a capital loss subject to the provisions of Section 1211(b) of the Internal Revenue Code of 1954." The petitioner and Potter together entered into four other transactions, described hereinafter, the tax consequences of which are not in issue herein. Crazy Corner Property: On July 30, 1960, Potter purchased real property known as the Crazy Corner property for $125,000, making a down payment of $35,000 and giving the seller a note for $90,000 secured by a first mortgage, payable at the rate of $30,000 plus interest *98 annually. The petitioner furnished the down payment and he and Potter considered that each owned a one-half interest in the property. It was their intention to sell the property as soon as possible. The property was located on the main thoroughfare through Tucson (an interstate highway). Utilities had been installed up to the property line. There was an abandoned filling station on a portion of the property which was never operated after Potter took title. The petitioner felt that the property was well situated for the construction and operation of a restaurant, which would have been possible under the existing zoning. Shortly after the property was acquired the petitioner and Potter advertised it for sale and listed it for sale with real estate agencies which placed their signs thereon. It was orally listed for sale with Arizona Land Title and Trust Company. On August 1, 1961, Potter conveyed this property to the Arizona Land Title and Trust Company under a trust agreement naming that company as trustee and Potter and his wife as beneficiaries. At the same time the Arizona Land Title and Trust Company as trustee gave its note in the amount of $35,000, secured by a second mortgage *99 on the property, to Alyce T. Williams to secure a loan of $35,000 made by Alyce to Potter, which Potter used to make payments on the underlying obligation to the seller. The petitioner made a trip to the West Coast to interest restaurant chains, including Sambo's, Inc., in the property. By deed dated January 10, 1962, the Arizona Land Title and Trust Company conveyed the Crazy Corner property to Sambo's, Inc., a California corporation, for $135,000. Sambo's, Inc., made a down payment of $25,000, gave its note for $50,000 secured by a second mortgage on the property and assumed the unpaid balance of $60,000 on the first mortgage. The Sambo's, Inc., note for $50,000 was subsequently endorsed to Alyce T. Williams by the trust to satisfy the $35,000 obligation to her. In his income tax return for the taxable year 1962 the petitioner did not report any gain or loss from the sale. In his return for the taxable year 1962 Potter reported a long-term capital gain of $2,143 upon the sale. Kwik-Serv: On May 1, 1960, certain real property in the Linden Park Addition to Tucson, hereinafter referred to as the Car Wash property, was leased to Potter and his wife and T. A. Harney and his wife. The *100 lease was for a term of 15 years with an option to purchase the property for $79,800. In September 1960, the Harneys assigned their interest in the lease to the petitioner and his wife for a recited consideration of "TEN and NO/100 ($10.00) DOLLARS and other valuable considerations." Prior thereto the petitioner had no interest in the property. When petitioner acquired his interest in the lease it was his intention to build a car wash on the property and operate it, and this was done. On February 20, 1961, Kwik-Serv Car Wash, Inc., (hereinafter referred to as Kwik-Serv) was incorporated by the petitioner and Potter under the laws of Arizona. The petitioner and Potter each held a 50 percent interest in Kwik-Serv and served as its officers, the petitioner as president and Potter as secretary. The lease was transferred to the corporation. The option to purchase was exercised by Kwik-Serv on or about April 3, 1961. At the same time Kwik-Serv borrowed $83,000 from The Valley National Bank of Phoenix giving its note in the same amount 1078 to the bank. The note was payable in monthly installments of $723.10 and was secured by a first mortgage on the property. The petitioner and Potter signed *101 such note in their personal capacities as well as their corporate representative capacities. The petitioner directed the bank to pay the purchase price to the seller and to deposit the balance of the loan, less taxes and service charges, to the Kwik-Serv account. An additional borrowing in the amount of $48,308.17 was made by Kwik-Serv from the bank on September 10, 1962, Kwik-Serv giving its note payable in 30 days secured by a second mortgage on the Car Wash property together with a chattel mortgage on its equipment. Again the petitioner and Potter signed the note in their personal and representative capacities. The petitioner and Potter actively operated the car wash for some time. In their returns for the taxable years 1961 and 1962 the petitioner and Potter each reported as compensation from Kwik-Serv the respective amounts of $3,000 and $2,250. While these amounts were accrued on the corporate books, they were not actually paid to petitioner and Potter. In 1963 the petitioner and Potter decided that the operation of the car wash was too time consuming and decided to sell the property, listing it with most of the real estate offices in Tucson, including Arizona Land Title and *102 Trust Company. On April 29, 1963, Potter assigned his interest in Kwik-Serv to the petitioner, as stated in footnote 1, supra. The petitioner transferred all the stock to a third party for the assumption of indebtedness by such third party. In his income tax return for the taxable year 1963 the petitioner claimed a long-term capital loss in the amount of $120,000 on his Kwik-Serv stock, stating that such stock was worthless. This resulted in a reported net long-term capital loss of $119,998.20. Mt. Vista: Mountain Vista Estates, Inc., (hereinafter referred to as Mt. Vista) was incorporated in Illinois on July 22, 1960, and was licensed to do business in Arizona on July 28, 1960. It was formed by several individuals, including the petitioner, for the purpose of purchasing a 560-acre tract of land in Pima County, Arizona. Potter promoted the project and was the president of the corporation. The intention of the individuals was to sell the property as quickly as possible either as raw land or after improvements which would increase its value. The corporate form was utilized for the purpose of limiting the liability of the individuals. The property was purchased on July 22, 1960, for *103 $708,000 under a trust agreement wherein title to the property was held by the Arizona Land Title and Trust Company as trustee with the seller as first beneficiary and Mt. Vista as second beneficiary. Of the $708,000 purchase price, $150,000 was paid by Mt. Vista in cash as a down payment and the remaining $558,000 was payable in annual installments of not less than $30,000 plus interest. Upon payment of the down payment 60 acres were released from the conditions of the trust, and other portions were to be released upon further payments. The trust agreement also gave Mt. Vista the right to improve and develop the property subject to the approval of the seller. The stockholders contributed the $150,000 down payment. The petitioner, who owned 30 percent of the stock of Mt. Vista, and was the largest single shareholder, contributed 30 percent ($45,000) of the down payment. Although Potter did not own any stock, it was understood between him and petitioner that he would share equally with petitioner any profit derived by petitioner, after petitioner had received interest upon his contribution. The 560-acre property was the sole asset of Mt. Vista. It was located in Oracle Valley, a few *104 miles north of Tucson. It was in an area which had a beautiful mountain view, and which was being rapidly developed with houses and golf course. Immediately after the property was acquired by Mt. Vista, the petitioner and Potter made efforts to sell it through personal contacts and by listing it with real estate agencies in the Tucson area, which placed signs on the property and placed newspaper advertisements. The petitioner made a trip to Chicago to try to interest two parties there in the purchase of the property. The petitioner and Potter obtained an agreement from the county to extend a road through the property as it might be developed. The property was zoned for 4-acre residential parcels. They had it rezoned to permit smaller building parcels which, they believed, would enhance the value of the property. No actual subdividing was done and no improvements were made. The petitioner and Potter also tried unsuccessfully to interest various hotel chains to purchase the property for development 1079 as a resort hotel. They had a feasibility report prepared in May 1961 by a hotel accounting firm at the request of Western Hotels, Inc., and Potter made several trips to San Francisco *105 to discuss this possibility with the officers of that company. On April 29, 1963, Potter assigned to the petitioner all his right, title and interest in Mt. Vista as previously stated in footnote 1, supra. The corporation did not hold regular meetings of directors or stockholders. It never made any further payments on the purchase price of the property. In July 1965, it lost its interest in the property as a result of a foreclosure action brought by the sellers. The record does not show whether or when the petitioner ever claimed any loss with respect to his stock in Mt. Vista. Lake Ranch: On or about April 3, 1961, Lake Ranch Mobile Homes Park, Inc., (hereinafter referred to as Lake Ranch) was formed by petitioner, Potter and George Holman for the purposes of purchasing a 27-acre tract of land in Pima County, Arizona. The corporate form was used to limit the liability of the individuals, each of whom owned one-third of the stock. Potter was president and the petitioner was secretary. The property was purchased on April 5, 1961, for $210,000. Lake Ranch made a down payment of $50,000, gave its note for $50,750, secured by a second mortgage on the property, payable at the annual rate *106 of $4,230 plus interest, and assumed a first mortgage on the property in the amount of $109,250, payable at an annual rate of $5,750 plus interest. By oral agreement among the three individuals the $50,000 cash down payment was contributed by Holman; petitioner and Potter were to each later contribute $50,000 at such time as they were able to sell other real estate which they held. Neither the petitioner nor Potter ever made any contribution to the corporation. On April 3, 1961, Lake Ranch also purchased a residence adjoining the 27-acre tract for $18,000, giving its note for $8,289.69, which was payable $4,000 plus interest on June 1, 1961 and the balance on September 1, 1961, and which was secured by a second mortgage on the property, and assuming a first mortgage of $9,710.31, which was payable at the rate of $110.38 per month plus interest. The 27-acre tract included a 2-acre lake and it was the shareholders' opinion that the property would lend itself to use as a trailer park and that if it were developed as such it could be sold at a profit. In December 1961, an architect's layout of the property for use as a trailer park was made. Potter devoted a great deal of his time seeking *107 financing for construction of the park and developing plans to sell the park when improved. Advertisements were placed in the east and west coast editions of the Wall Street Journal offering the property for sale and leaseback as a trailer park, in attempts to obtain financing for construction of a trailer park. Advertisements were also placed in various mobile home trade publications. However, the property was not sold. On April 29, 1963, the petitioner assigned his interest in Lake Ranch to Potter, as previously stated in footnote 1, supra. In his income tax return for the taxable year 1963, the petitioner did not report any gain or loss upon the transfer of his stock in Lake Ranch. At no time did Lake Ranch make any payments on the mortgages and on December 17, 1964, it lost its interest in the property by a foreclosure judgment. As previously stated, the Williamson, Crazy Corner, and Car Wash properties were orally listed for sale with Arizona Land Title and Trust Company, and the petitioner and Potter made frequent inquiry as to the sale prospects. Whenever that company received offers on these properties, Schendel brought them to the attention of petitioner or Potter and discussed *108 such offers with them. Whenever any of the various properties were advertised, other than by real estate firms, prospective purchasers were generally referred to the telephone number and address of Kwik-Serv, but sometimes to the home telephone numbers of the petitioner and Potter. The petitioner and Potter used the Kwik-Serv property as their office for business dealings. The petitioner never personally placed any "For Sale" signs on any of the properties. Such signs were placed by the real estate firms which listed the properties, at their expense. From 1960 through 1963 the petitioner was married to Rosa Boynton. During this time Rosa Boynton held a real estate license and worked for various real estate agencies. Although she had listings on the above properties she did not sell any real estate during the years in question nor did she report any income from her real estate activities. 1080 After the petitioner sold his stock in 1960 (the sales price of which was shown on his 1960 return as $411,406.25), he had no source of income, and from that time through 1963 his living expenses were paid out of his capital and such money as he borrowed. Although in 1960 through 1963 he reported *109 income in varying amounts from the Charles T. Boynton Trust Fund, he did not actually receive such funds since they were paid directly to his first wife and children for alimony and support. In his 1960 and 1961 income tax returns, the petitioner did not state his occupation, but on a financial statement given by him on September 13, 1960, in connection with a loan for construction of the car wash, he stated his occupation as "Investments - Car Wash Owner" and listed among his assets a one-half interest in the Williamson and Crazy Corner properties. In his 1962 income tax return he stated his occupation as "Manager." In Schedule C of his 1963 income tax return, the petitioner showed the business name of C. T. Boynton Real Estate and showed "Real Estate" as his principal business activity. On none of his returns from 1960 through 1963 did he claim any expenses in connection with his real estate activities. The Williamson property was not property held by petitioner in his taxable year 1963 primarily for sale to customers in the ordinary course of his trade or business. Opinion The resolution of the present controversy turns upon the question of whether the Williamson property constituted *110 a capital asset within the definition contained in section 1221 of the Internal Revenue Code of 1954. 2*111 The petitioner contends that it was not such but was property held primarily for sale to customers in the ordinary course of his trade or business. If the petitioner is correct, the loss of $46,000 which he sustained in 1963 upon foreclosure of such property would constitute an ordinary business loss resulting in a net operating loss for the taxable year 1963 which may be carried back and deducted from income of the taxable year 1960. If, on the other hand, the property was a capital asset, as contended by respondent, the loss sustained would constitute a capital loss and there would be no net operating loss for 1963 to carry back to 1960. Section 172 of the Internal Revenue Code of 1954. 3 The petitioner calls attention to the principle enunciated in Corn Products Refining Co. v. Commissioner,, 350 U.S. 46">350 U.S. 46, that the definition of a capital asset must be narrowly applied and its exclusions interpreted broadly. *112 The Supreme Court so held stating that this was necessary to effectuate the Congressional purpose, which it stated as follows: Congress intended that profits and losses arising from the everyday operation of a business be considered as ordinary income or loss rather than capital gain or loss. The preferential treatment provided by § 117 applies to transactions in property which are not the normal source of business income. It was intended "to relieve the taxpayer from * * * excessive tax burdens on gains resulting from a conversion of capital investments, and to remove the deterrent effect of those burdens on such conversions." Burnet v. Harmel, 287 U.S. at page 106, 53 S. Ct. at page 75. Since this section is an exception from the normal tax requirements of the Internal Revenue Code, the definition of a capital asset must be narrowly applied and its exclusions interpreted broadly. This is necessary to effectuate the basic congressional purpose. * * * 1081 The question of whether any particular property constitutes a capital asset, or whether it constitutes property held for sale to customers in the ordinary course of a taxpayer's trade or business, is essentially a question of fact *113 to be determined from all the circumstances of a particular case. The courts have set forth a number of factors to be considered, no one of which is necessarily determinative. Among the factors considered are the purpose or reason for the taxpayer's acquisition of the property and his disposition of it, the continuity of sales or sales related activity over a period of time, the number, frequency, substantiality of sales, and the extent to which the owner or his agents engaged in sales activities by developing or improving the property, soliciting customers, and advertising. See W. T. Thrift, Sr., et al., 15 T.C. 366">15 T.C. 366. In the instant case the petitioner, in support of his contention that he was in the business of buying and selling real estate, presented evidence as to 5 properties in which he acquired an interest, direct or indirect, including the Williamson property, pursuant to an oral agreement with Potter to buy and sell such real estate in the Tucson area as they might agree upon. On brief the petitioner refers to Potter as his partner, and apparently considers that there was a partnership between them with respect to the 5 properties. There is no evidence that petitioner and *114 Potter ever filed any partnership returns with respect to these ventures. In any event, the existence or nonexistence of a partnership would not be determinative of the question whether the Williamson property was property held primarily for sale to customers in the ordinary course of a trade or business. Three of the properties which the petitioner contends formed a part of a real estate business conducted by him were owned by corporations in which he held interests. It is well established that the business of a corporation is not to be attributed to its shareholders. Burnet v. Clark, 287 U.S. 410">287 U.S. 410; Higgins v. Smith, 308 U.S. 473">308 U.S. 473; Whipple v. Commissioner, 373 U.S. 193">373 U.S. 193; and Ralph E. Gordy, 36 T.C. 855">36 T.C. 855. Accordingly, it is our opinion that in considering whether the petitioner was engaged in the business of buying and selling real estate there should be considered only two of the transactions described in our Findings of Fact, namely, those involving the Williamson and Crazy Corner properties. It is our conclusion that the petitioner did not hold the Williamson property primarily for sale to customers in the ordinary course of a trade or business within the meaning of section 1221. The *115 purchase of only two properties, and the sale of one and the loss of the other, in a period of over three years, is insufficient to support a conclusion that the petitioner's transactions in real estate were so numerous, frequent, or substantial as to constitute the carrying on of a trade or business. Nor were the activities of petitioner and Potter with respect to such properties of such character as to indicate the carrying on of a trade or business. There was no development or improvement of the two properties by the petitioner and Potter, and it appears that none was ever contemplated. Utilities had already been installed up to the borders of these properties and the petitioner and Potter did not extend them. They did not secure different zoning, nor did they engage in any subdividing. Absent any intention on the part of the petitioner to develop the properties or to engage in any other activity which would serve to enhance their value, it seems apparent that any gain to be expected would result from enhancement in value of the property due to external economic factors. To us this indicates an investment purpose regardless of the length of time the properties might be held. While *116 the petitioner testified that his purpose in acquiring these properties was to sell them at a profit as soon as possible, this does not in itself prove that he was engaged in carrying on a real estate business. As stated in Burkhard v. United States, (C.A. 9) 100 F. 2d 642, there are few, if any, owners of property who will not sell it if a high enough price is offered, and in this sense all property may be held for sale, but this is not inconsistent with the idea that it was purchased as an investment. On brief the petitioner argues that the properties had to be sold within a short time in order to meet the mortgage obligations in regard thereto. This, however, is not inconsistent with an investment purpose. Furthermore, we note that mortgage payments on the properties were due on an annual basis. Indeed, the Williamson property was actually held for over three years without payment on the mortgage before it was lost by foreclosure; and the Crazy Corner property was held for about a year and a half prior to its sale, 1082 during which time money was borrowed to make a payment on the mortgage. The fact that the petitioner himself, and through brokers, made efforts to sell the properties *117 by the placing of signs and contacting prospective buyers, and the fact that he obtained an artist's rendition of possible improvements for presentation to possible purchasers are not in themselves determinative. Such efforts to sell might well be employed either with respect to property held for investment or with respect to property held for sale to customers in the ordinary course of a trade or business. The petitioner testified that he looked to the sale of various properties as his only source of livelihood after he moved to Tucson in 1960. It appears, however, that petitioner and Potter, as officers of Kwik-Serv, actively operated a car wash for some time, albeit it appears that the operation was not successful. It may be added that there is no evidence that the petitioner held himself out as being in the business of buying and selling real estate. Indeed, in a financial statement given by him in September 1960, he characterized his occupation as "Investments - Car Wash Owner," and listed both the Williamson and Crazy Corner properties among his assets. In his 1962 income tax return he characterized his occupation as "Manager." And in April 1963, when he and Potter entered into *118 an agreement by which they dissolved their relationship by mutual transfers of property interests from one to the other, the interests transferred were characterized as interests in "joint venture real estate investments" and "business investments." The foregoing indicates to us that, while petitioner undoubtedly looked to profitable sales of the properties, the return he sought was that of an investor rather than that of one actively engaged in the business of buying and selling real estate. In view of the foregoing, we approve the respondent's determination that the loss of $46,000 sustained by the petitioner upon the foreclosure of the Williamson property in the taxable year 1963 was a capital loss, and that the petitioner is not entitled to deduct for his taxable year 1960 a net loss carryback from the taxable year 1963. Decision will be entered for the respondent. Footnotes

2020-12-04 06:08:01.821286+00

https://www.nebraska.gov/apps-courts-epub/public/viewOpinion?docId=N00007476PUB

Nebraska Supreme Court Online Library www.nebraska.gov/apps-courts-epub/ 12/04/2020 12:08 AM CST - 773 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. STACK Cite as 307 Neb. 773 State of Nebraska, appellee, v. Alan E. Stack, appellant. ___ N.W.2d ___ Filed November 13, 2020. No. S-19-833. 1. Convictions: Evidence: Appeal and Error. In reviewing a criminal conviction for a sufficiency of the evidence claim, whether the evidence is direct, circumstantial, or a combination thereof, the standard is the same: An appellate court does not resolve conflicts in the evidence, pass on the credibility of witnesses, or reweigh the evidence; such matters are for the finder of fact. The relevant question for an appellate court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential ele- ments of the crime beyond a reasonable doubt. 2. Verdicts: Insanity: Appeal and Error. The verdict of the finder of fact on the issue of insanity will not be disturbed unless there is insufficient evidence to support such a finding. 3. Sentences: Appeal and Error. An appellate court will not disturb a sen- tence imposed within the statutory limits absent an abuse of discretion by the trial court. 4. Motions to Dismiss: Directed Verdict: Waiver: Appeal and Error. A defendant who moves for dismissal or a directed verdict at the close of the evidence in the State’s case in chief in a criminal prosecution and who, when the court overrules the dismissal or directed verdict motion, proceeds with trial and introduces evidence, waives the appellate right to challenge correctness in the trial court’s overruling the motion for dismissal or a directed verdict but may still challenge the sufficiency of the evidence. 5. Homicide: Intent. Both second degree murder and voluntary man- slaughter involve intentional killing; they are differentiated only by the presence or absence of the sudden quarrel provocation. 6. Homicide: Words and Phrases. A sudden quarrel is a legally recog- nized and sufficient provocation which causes a reasonable person to lose normal self-control.  - 774 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. STACK Cite as 307 Neb. 773 7. Homicide: Intent. It is not the provocation alone that reduces the grade of the crime, but, rather, the sudden happening or occurrence of the provocation so as to render the mind incapable of reflection and obscure the reason so that the elements necessary to constitute murder are absent. 8. Homicide: Words and Phrases. A sudden quarrel does not neces- sarily mean an exchange of angry words or an altercation contem- poraneous with an unlawful killing and does not require a physical struggle or other combative corporal contact between the defendant and the victim. 9. Insanity: Proof. The insanity defense requires proof that (1) the defend­ ant had a mental disease or defect at the time of the crime and (2) the defendant did not know or understand the nature and consequences of his or her actions or that he or she did not know the difference between right and wrong. 10. Sentences: Appeal and Error. Where a sentence imposed within the statutory limits is alleged on appeal to be excessive, the appellate court must determine whether a sentencing court abused its discretion in con- sidering and applying the relevant factors as well as any applicable legal principles in determining the sentence to be imposed. 11. Sentences. In determining a sentence to be imposed, relevant factors customarily considered and applied are the defendant’s (1) age, (2) men- tality, (3) education and experience, (4) social and cultural background, (5) past criminal record or record of law-abiding conduct, and (6) moti- vation 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. 12. ____. The appropriateness of a sentence is necessarily a subjective judg- ment and includes the sentencing judge’s observation of the defendant’s demeanor and attitude and all the facts and circumstances surrounding the defendant’s life. Appeal from the District Court for Sarpy County: Stefanie A. Martinez, Judge. Affirmed. Gregory A. Pivovar, and, on brief, John P. Hascall, Deputy Sarpy County Public Defender, for appellant. Douglas J. Peterson, Attorney General, and Stacy M. Foust for appellee. Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.  - 775 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. STACK Cite as 307 Neb. 773 Papik, J. Alan E. Stack appeals his convictions and sentences for second degree murder and use of a deadly weapon to commit a felony. Circumstantial evidence presented at Stack’s bench trial linked him to the murder of a woman with whom he lived. In this appeal, Stack challenges the sufficiency of the evidence and the district court’s finding that the evidence supported a conviction of second degree murder, rather than sudden quar- rel manslaughter. He also claims that the district court erred in rejecting his insanity defense and imposed excessive sentences. Finding no merit to Stack’s contentions, we affirm. I. BACKGROUND 1. Procedural Overview On November 16, 2017, family members found Beverley Diane Bauermeister dead in her home. Severe head trauma was evident. Bauermeister’s elderly mother was in another room, alive but immobile. Stack, a heavy drinker, was living with Bauermeister and her mother at the time of Bauermeister’s death. Stack was ultimately charged with second degree murder; abuse of a vulnerable or senior adult; and use of a deadly weapon, other than a firearm, to commit a felony. Stack filed a notice of intent to rely on the insanity defense. He claimed that a mental defect impaired his mental capacity so that he did not understand the nature and consequences of his actions and that he did not have the ability to form the requisite intent. At the subsequent bench trial, the State presented circum- stantial evidence that tied Stack to the crimes charged. At the close of the State’s case, Stack made a motion to dismiss all counts, which the district court overruled. Stack proceeded to present evidence in his defense, including testimony in support of his insanity defense. The State presented additional evidence opposing Stack’s defense. Once the parties rested, the district court ruled that there was insufficient evidence to find that Stack was either insane or could not form the specific intent to commit the crimes  - 776 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. STACK Cite as 307 Neb. 773 alleged. It convicted Stack of second degree murder and use of a deadly weapon to commit a felony, but it acquitted him of the abuse charge. Following a sentencing hearing, the district court sentenced Stack to consecutive terms of 80 years’ to life imprisonment for second degree murder and 40 to 50 years’ imprisonment for use of a deadly weapon to commit a felony. Stack now appeals. 2. Circumstantial Evidence at Trial (a) Crime Scene and Stack’s Arrest Stack and Bauermeister had been living together for more than 15 years but were not in a dating relationship at the time relevant to this case. By all accounts, Stack was an alcoholic. Stack and Bauermeister shared a trailer home with Bauermeister’s 90-year-old mother. Bauermeister’s mother was wheelchair-bound, was unable to get out of bed on her own, and could not take care of her own basic needs. Bauermeister’s daughter testified that she and Bauermeister communicated daily, but Bauermeister did not respond to her daughter’s attempts to reach her after they had a disagree- ment on November 8, 2017. On November 16, Bauermeister’s daughter and brother discovered Bauermeister deceased on her living room floor. They found Bauermeister’s mother in a bedroom, lying on her hospital bed in her own urine and feces. Bauermeister’s mother was admitted to a hospital due to severe dehydration. When law enforcement searched the residence, they observed that Bauermeister had severe head trauma, blood around her hair, yellow brain matter in her hair, and brown hair strands in her hand and on the carpet near her. The scene was processed for DNA and blood evidence. There was blood spatter in the living room area and additional possible blood evidence between the living room and Stack’s bedroom. On the floor of Stack’s bedroom, officers located a “Crosman 66 Powermaster BB rifle[/pellet gun],” .177 caliber, with a sight near the tip of the gun barrel. A gray or silver pellet was in the clip of the gun. A detective who investigated the scene  - 777 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. STACK Cite as 307 Neb. 773 testified that he observed what appeared to be dried blood- stains and brain matter on areas of the gun. The same day Bauermeister’s body was discovered, law enforcement took Stack into custody. They located him parked in Bauermeister’s truck, which he sometimes drove. The offi- cer who transported Stack to the station testified that he could smell the strong odor of an alcoholic beverage coming from Stack. At the station, Stack’s clothing was collected. In photo­ graphs taken shortly after his arrest, Stack appears to have brown hair. (b) Autopsy Dr. Michelle Elieff, a general and forensic pathologist, con- ducted an autopsy of Bauermeister’s body on November 17, 2017. Based on the decomposition of the body, Elieff esti- mated that Bauermeister had been deceased for days, perhaps up to a week. Elieff identified the cause of death as extensive blunt force head injuries and two penetrating wounds to the head. The extensive blunt force injuries included multiple skull fractures and multiple scalp lacerations. Regarding the pen- etrating wounds, Elieff explained they were “what we refer to as missile wounds; they are a type of gunshot wound that are resulting from small projectiles, pellet-type projectiles.” Elieff recovered a missile projectile, consistent with a pellet, from behind Bauermeister’s right eye. Elieff opined that the right angle or rectangular component on the sight of the pellet gun found in Stack’s bedroom could be consistent with Bauermeister’s pattern injuries. She also opined that the circular tip of the barrel of the gun could have caused the injuries. (c) Electronic Evidence Upon Stack’s arrest, Bauermeister’s cell phone was found in her truck and later processed. There were 41 missed calls between November 14 and 16, 2017. The last four outgoing calls occurred between November 10 and 13. Twenty-seven text messages were received between November 9 and 16,  - 778 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. STACK Cite as 307 Neb. 773 but it could not be determined who had viewed the messages. The last outgoing text message occurred on November 8. The last message from Bauermeister’s social media account was also sent on November 8. During the search of the crime scene, officers seized a lap- top computer from Stack’s bedroom. A “Skype” account on the laptop bore the username “Al Stack.” The laptop showed mul- tiple internet searches on November 7, 2017, for the make and model of pellet gun found in Stack’s bedroom, a “Crosman 66 Powermaster BB rifle[/pellet gun],” .177 caliber. On November 8, there were various searches for iterations of whether a .177 caliber pellet can penetrate a human skull. The next day, there were multiple searches inquiring about various methods of suicide, among them were searches for “[i]s it possible to kill yourself with a pellet gun” and “kill yourself with a pellet gun.” Nearly 2 hours after the last of these searches, there were searches for “can a .177 cal. penetrate a human skull” and “can a .177 cal. 66 powermaster penetrate a human skull.” On November 10, at 9:22 p.m., a search was made for “decomposition of a human body timeline.” Searches for “what gets supplied for you in jail and prison” and “are socks and under[wear] provided in jail or prison” were made on the morning of November 12. Based upon the history on the cell phone and the laptop, along with the crime scene, the detective who processed the electronic evidence opined that Bauermeister was killed on or about November 10, 2017. (d) DNA Evidence Forensic DNA analyst Mellissa Helligso tested numerous items for the presence of blood and for DNA. She used buccal swabs from Stack and Bauermeister for DNA comparison. Helligso observed what appeared to be bloodstains on the front and back of Stack’s pants, but she only tested a swab from one 2-inch long stain. That swab tested positive for blood. It generated a DNA mixture from two individuals. Bauermeister was not excluded as a major contributor. The  - 779 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. STACK Cite as 307 Neb. 773 probability of an unrelated individual matching the major DNA profile, given that Bauermeister expressed the profile, was 1 in 1.08 nonillion, which Helligso testified “is 30 zeros.” Stack was not excluded as a partial profile contributor. The probability of an unrelated individual matching the partial profile, given that Stack expressed such a profile, was 1 in 1.66 billion. Also positive for blood were swabs from Stack’s left shoe, which had a few areas of visible blood; from various areas of the pellet gun; and from Bauermeister’s fingernails and her cell phone. DNA testing showed that Bauermeister was not excluded as the source. The probability of an unrelated individual matching the DNA profile, given that Bauermeister expressed such a profile, was 1 in 1.08 nonillion. Helligso tested a swab from various textured areas of the gun for “touch DNA” contributed by skin cells. The swab gen- erated a DNA profile from a mixture of two individuals. Stack and Bauermeister were not excluded as contributors. As to Stack, the probability of an unrelated individual matching the DNA profile, given that Stack expressed such a profile, was 1 in 36.3 sextillion. Regarding Bauermeister, the probability of an unrelated individual matching the DNA profile, given that Bauermeister expressed such a profile, was 1 in 17.9 quintil- lion. Helligso testified that she cannot know when DNA was deposited on an item and that she has found touch DNA on an item up to 2 years after it has been handled by a person. Helligso attempted to test a brown hair strand found in Bauermeister’s hand, but she could not obtain a DNA profile from the root area. And she did not have the capability in her laboratory to test the remainder of the strand for a different form of DNA. (e) Jailhouse Recordings While incarcerated for the present offenses, Stack spoke to his brother. A recording of their conversation was received as evidence. In the conversation, Stack told his brother about  - 780 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. STACK Cite as 307 Neb. 773 his relationship with Bauermeister and his limited memory of the days surrounding her death: Stack’s brother: So you just don’t even remember what happened . . . ? Stack: No, I remember a couple of days before, I mean, how irritated I was getting and drunk because that was the only thing that would calm me down . . . . [T]here’s not much I can say, I mean, I can say how evil and mean [Bauermeister] was to me for a long period of time because that’s what I remember from before, but I don’t remember damn near probably five days. I just don’t. Stack’s brother: Well, I would assume you were hammered. Stack: Yeah I was drinking over a case of beer and I went back to booze too. I was drinking booze. .... Stack: . . . [T]he night they found me in the parking lot. They arrested me. .... Stack’s brother: So what did you do for those days? Stack: I don’t remember. I just drunk, drank. I don’t remember. I drank and drove around. I didn’t eat any- thing. I was, I was upset. I don’t know. I remember, I don’t know what I really remember. It seems like I remember at one point I knew I was gonna be dead or something because I went back home and seen, seen the house and I had to just stay drunk. .... Stack’s brother: . . . I mean, um, I get, I get that you blacked out, um, but you said you went, you actually, after you had done it there was a point in time when you went back there? Stack: I’m a, I slightly remember it, yeah, because I knew I had to leave, get outta there and I don’t remember how long it was that I was driving around in the truck before they found me . . . I didn’t have no clue where  - 781 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. STACK Cite as 307 Neb. 773 I was. All I know is I was drinking booze and beer con- stantly, not eating and that’s all I can explain. Minutes later in the conversation, Stack continued: [T]o me, that’s not me. I obviously fucking lost it or something. I don’t know. I know I was drinking hard and I know I was fed up a long time before that. It got to that point. I know that, I remember that much. For me to believe everything or what actually happened, I just don’t know, and I don’t even really want to talk about it now. .... Stack’s brother: . . . [I]f you’re hammered and you do what apparently it looks like you did, I don’t think it makes you any less guilty. Stack: No, I don’t think it does either. . . . . . . I mean I did want to be alone. That’s what I was thinking weeks, weeks before. I started to get real drunk again I was and I did want to be alone, I did want to be alone. I didn’t want to listen to her mouth anymore. I remember thinking things like that but that’s not, that hasn’t got anything to do with it. I don’t. But that’s, I mean that’s why I was in no hurry to call anybody any- way because I didn’t want to sit here and try to explain shit to everybody that I don’t even understand myself. The district court also received a recording of a telephone conversation Stack had with his sister while in jail awaiting trial for the present offenses: Stack: They pulled some shit off of my computer or somethin’ I think is what they’re sayin’. They don’t, they don’t know what I was doin’ with it. I don’t even know what they . . . . But I know what I looked up on the com- puter. I was looking up suicides and I was looking up what I could shoot with my BB gun and stuff like that. I know that’s what I looked up because that was before I went on a drinking rampage[.] .... Stack’s sister: But you remember searching stuff like that?  - 782 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. STACK Cite as 307 Neb. 773 Stack: Mm. . . hm . . . that was before I went off the reservation. Stack’s sister: Yeah, okay, alright, mm, ok so you do remember that so I don’t know do you think maybe you did a search on something else that you don’t remember? Stack: It’s possible. I mean I don’t know about that. I mean I remember what I did do as far as, you know as far as suicide I know I did do that because I remember that because . . . . Stack’s sister: Okay. Stack: I was the one who wanted out. I wasn’t going to do anything about her. 3. Testimony Relevant to Insanity Defense (a) Testimony of Dr. Terry Davis In support of his insanity defense, Stack presented the testimony of Dr. Terry Davis, a board-certified forensic and addiction psychiatrist. Davis interviewed Stack in March 2018 and performed a mental status examination. He also reviewed Stack’s medical record from an emergency room visit on November 17, 2017; information from Bauermeister’s fam- ily; police reports; and a transcript of a recorded conversation between Stack and his brother. Davis diagnosed Stack with a mild neurocognitive disorder and a severe level of alcohol use disorder. Davis testified that in Stack’s evaluation and the records he reviewed, Stack con- sistently said that he did not remember killing Bauermeister, but he had brief memories from being in “his” truck on November 16, 2017, and speaking to an officer. Davis testified about other statements Stack made in the evaluation that were received for the limited purpose of diag- nosis, not the truth of the matter asserted. Stack informed Davis that he drank “constantly” before he was arrested and that he drank beer daily. He also stated that he drank hard liquor but switched to beer primarily after he developed pancreatitis. He  - 783 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. STACK Cite as 307 Neb. 773 said that he did not have much of a memory of 1 or 2 months prior to Bauermeister’s death because of his alcohol use. Davis testified that severe alcohol use disorder can impair one’s cognitive functioning on a permanent basis. Davis explained that an individual who drinks a large amount of alcohol may experience a blackout, or a period of “anterograde amnesia,” and may not form lasting memories of what occurred during the blackout period. He testified that immediate and short-term memory are impaired during an alcoholic blackout. According to Davis, the blood alcohol concentration range for a blackout varies from person to person, but the range is typically between “.20 and .30 on the milligram percent scale.” Davis observed that Stack’s medical record from several hours after his arrest showed that his blood alcohol content was .119. And Stack reported that he previously experienced blackouts. Davis testified that Stack is more at risk for a blackout because of his mild neurocognitive disorder, but that the disorder itself would not cause a blackout. It was Davis’ opinion that, assuming Stack killed Bauermeister and did not have a memory of killing her, Stack was unable to form the specific intent to kill because he expe- rienced an alcoholic blackout resulting from a combination of his alcohol ingestion and his alcohol-induced mild neurocogni- tive disorder. Again assuming that Stack killed Bauermeister, Davis opined that he suffered at that time from a mental dis- ease or defect, specifically an alcohol-induced mild neurocog- nitive disorder. Further, as a result of that disorder, in combi- nation with his consumption of alcohol, Stack experienced an alcoholic blackout, which caused him to be unable to know and understand the nature and consequences of his actions. Davis opined that Stack’s substance-induced mild neuro- cognitive disorder alone did not mean that Stack could not form the intent to kill Bauermeister, nor did it alone cause him not to know the nature and consequences of his actions. He explained that Stack’s voluntary ingestion of alcohol was necessary to cause the blackout that, in combination with the  - 784 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. STACK Cite as 307 Neb. 773 mild neurocognitive disorder, was the basis of Davis’ opinions on intent and insanity. (b) Testimony of Klaus Hartmann and Mindy Abel Dr. Klaus Hartmann, a board-certified forensic psychiatrist, evaluated Stack in December 2018 and reviewed the same or similar information as Davis, along with Davis’ report. Dr. Mindy Abel, a clinical psychologist, was present for Hartmann’s interview with Stack and conducted diagnostic testing. Hartmann testified that he disagreed with the method Davis used to diagnose Stack with mild neurocognitive disor- der. Using a different method, Hartmann and Abel concluded that Stack did not have a neurocognitive disorder because he was able to remember the events leading up to and after Bauermeister’s death. Hartmann testified that even people with mild neurocognitive disorders should know the consequences of their actions and appreciate what they are doing. Hartmann and Abel recognized that Stack had a history of blackouts. But Hartmann testified that someone who suffers from an alcoholic blackout knows and understands the consequences of their actions. Hartmann opined that Stack was not insane when Bauermeister was killed. 4. Sentencing After rejecting Stack’s insanity defense and finding him guilty of second degree murder and use of a deadly weapon to commit a felony, the district court ordered a presentence investigation report. It then conducted a sentencing hearing at which victim impact statements were received and the par- ties presented arguments. Considering the customary factors, the presentence investigation report, the victim impact state- ments, and the parties’ arguments, the district court sentenced Stack within statutory limits. It imposed consecutive terms of 80 years’ to life imprisonment for second degree murder and 40 to 50 years’ imprisonment for use of a deadly weapon to commit a felony.  - 785 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. STACK Cite as 307 Neb. 773 II. ASSIGNMENTS OF ERROR Stack assigns that the district court erred in (1) declining to direct a verdict and finding the evidence sufficient to sup- port the verdicts; (2) determining that the evidence supported a finding of second degree murder rather than manslaughter; (3) overruling his insanity defense; and (4) imposing exces- sive sentences. III. STANDARD OF REVIEW [1] In reviewing a criminal conviction for a sufficiency of the evidence claim, whether the evidence is direct, circum- stantial, or a combination thereof, the standard is the same: An appellate court does not resolve conflicts in the evidence, pass on the credibility of witnesses, or reweigh the evidence; such matters are for the finder of fact. The relevant question for an appellate court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Martinez, 306 Neb. 516 , 946 N.W.2d 445 (2020). [2] The verdict of the finder of fact on the issue of insan- ity will not be disturbed unless there is insufficient evidence to support such a finding. State v. France, 279 Neb. 49 , 776 N.W.2d 510 (2009). [3] An appellate court will not disturb a sentence imposed within the statutory limits absent an abuse of discretion by the trial court. State v. Leahy, 301 Neb. 228 , 917 N.W.2d 895 (2018). IV. ANALYSIS 1. Sufficiency of Evidence We begin with Stack’s challenge to the sufficiency of the evidence. He argues that he was entitled to a directed verdict; that the circumstantial evidence in this case warrants a differ- ent standard of review; that the evidence does not support a conviction for second degree murder; and that if the district  - 786 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. STACK Cite as 307 Neb. 773 court convicted him of any homicide offense, it should have been sudden quarrel manslaughter. As we will explain, these claims lack merit. (a) Directed Verdict [4] Stack asserts that the district court erred by declining to grant a directed verdict in response to the motion to dismiss he made at the close of the State’s case. But Stack waived this argument. The record shows that after Stack’s motion was denied, he put on evidence in his defense. A defendant who moves for dismissal or a directed verdict at the close of the evidence in the State’s case in chief in a criminal prosecution and who, when the court overrules the dismissal or directed verdict motion, proceeds with trial and introduces evidence, waives the appellate right to challenge correctness in the trial court’s overruling the motion for dismissal or a directed verdict but may still challenge the sufficiency of the evidence. State v. Vann, 306 Neb. 91 , 944 N.W.2d 503 (2020). We therefore con- sider only Stack’s assertion that the evidence as a whole was insufficient to support his convictions. (b) Standard of Review Because the standard of review defines our view of the evidence, we consider it before turning to the facts of this case. In arguing that the evidence was insufficient, Stack asks us to return to a standard of review that we have long since abandoned. It is well established that in reviewing a criminal conviction for a sufficiency of the evidence claim, whether the evidence is direct, circumstantial, or a combination thereof, the standard is the same: An appellate court does not resolve conflicts in the evidence, pass on the credibility of witnesses, or reweigh the evidence; such matters are for the finder of fact. The rel- evant question for an appellate court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements  - 787 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. STACK Cite as 307 Neb. 773 of the crime beyond a reasonable doubt. State v. Martinez, 306 Neb. 516 , 946 N.W.2d 445 (2020). Stack acknowledges the controlling standard of review, but he adds that “there are situations that just require this Court to take a different view of circumstantial evidence cases.” Brief for appellant at 21. Stack suggests that we apply the “accused’s rule,” which provides that when two equal presumptions from circumstantial evidence—one in favor of innocence and the other in favor of guilt—are presented, a presumption in favor of innocence is to be preferred and applied. See State v. Pierce, 248 Neb. 536 , 537 N.W.2d 323 (1995). For support, he cites some federal circuit courts that have applied a similar rule. See, e.g., U.S. v. Glenn, 312 F.3d 58 (2d Cir. 2002) (if evidence viewed in light most favorable to verdict gives equal or nearly equal circumstantial support to theory of guilt and theory of innocence of crime charged, appellate court must reverse conviction); U.S. v. Flores-Rivera, 56 F.3d 319 (1st Cir. 1995) (same). But see, e.g., U.S. v. Vargas-Ocampo, 747 F.3d 299 (5th Cir. 2014) (abandoning rule). Based on the evidence here, we have doubts that an appli- cation of the accused’s rule would lead to a finding of insuf- ficient evidence. But we need not resolve that issue, because we decline Stack’s invitation to resurrect a rule that we have repeatedly rejected. Prior to 1981, this court applied the accused’s rule when reviewing circumstantial evidence. See State v. Pierce, supra. But observing various reasons why circumstantial evidence should be treated the same as direct evidence, we abandoned the accused’s rule in State v. Buchanan, 210 Neb. 20 , 312 N.W.2d 684 (1981). In Buchanan, we held that one accused of a crime may be convicted on the basis of circumstantial evidence if, taken as a whole, the evidence establishes guilt beyond a reasonable doubt, and we disclaimed any require- ment that the State disprove every hypothesis but that of guilt. Over the years, we have briefly veered from this approach, only to steer definitively back to it and place circumstantial  - 788 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. STACK Cite as 307 Neb. 773 evidence on equal footing with direct evidence. See, State v. Skalberg, 247 Neb. 150 , 526 N.W.2d 67 (1995), overruled, State v. Pierce, supra; State v. Dawson, 240 Neb. 89 , 480 N.W.2d 700 (1992), abrogated, State v. Pierce, supra; State v. Trimble, 220 Neb. 639 , 371 N.W.2d 302 (1985), overruled, State v. Morley, 239 Neb. 141 , 474 N.W.2d 660 (1991), dis- approved on other grounds, Victor v. Nebraska, 511 U.S. 1 , 114 S. Ct. 1239 , 127 L. Ed. 2d 583 (1994). Most recently, in State v. Olbricht, 294 Neb. 974 , 885 N.W.2d 699 (2016), this court thoroughly recounted the demise of the accused’s rule in Nebraska and again rejected the suggestion that it should be applied. And in light of our jurisprudence on the matter, we see no reason to apply the accused’s rule here. (c) Circumstantial Evidence Supports Stack’s Convictions With our well-established standard of review in mind, we now determine whether there was sufficient evidence to sup- port Stack’s convictions for second degree murder and use of a deadly weapon to commit a felony. Stack challenges the sufficiency of the evidence on two bases. First, he argues that the evidence did not prove that he was the person who killed Bauermeister or that his pellet gun, which he does not dispute is a deadly weapon other than a firearm, was used to kill her. Second, he argues in the alternative that the district court should have convicted him of voluntary sudden quarrel man- slaughter, rather than second degree murder. But both of these arguments fail. [5] To prove second degree murder, a felony offense, the State was required to show beyond a reasonable doubt that Stack caused Bauermeister’s death “intentionally, but with- out premeditation.” See Neb. Rev. Stat. § 28-304 (Reissue 2016). Voluntary manslaughter, also a felony, is a lesser degree offense, not a lesser-included offense, of second degree mur- der. See State v. Smith, 284 Neb. 636 , 822 N.W.2d 401 (2012). That is, it is possible to commit second degree murder with- out committing voluntary manslaughter. See id. Both second  - 789 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. STACK Cite as 307 Neb. 773 degree murder and voluntary manslaughter involve intentional killing; they are differentiated only by the presence or absence of the sudden quarrel provocation. State v. Smith, supra (where there is evidence that killing occurred intentionally without premeditation and that defendant acted under provocation of sudden quarrel, fact finder has option of conviction of second degree murder or voluntary manslaughter depending on reso- lution regarding sudden quarrel provocation.) See, also, Neb. Rev. Stat. § 28-305 (1) (Reissue 2016). In disputing the theory that he committed second degree murder by killing Bauermeister with his pellet gun, Stack takes a selective view of the evidence, focuses on other pos- sible explanations for Bauermeister’s death, and characterizes the investigation as incomplete. In essence, Stack contends that the State failed to disprove every hypothesis, other than Stack’s guilt, that could be drawn from the circumstantial evidence. And according to Stack, even if the evidence did show that he killed Bauermeister with his pellet gun intention- ally and without premeditation, evidence of multiple blows demonstrated that a sudden quarrel occurred and that volun- tary manslaughter was the proper conviction. To support this position, Stack further cites a lack of evidence about recent fighting or animosity between Stack and Bauermeister and a lack of evidence conclusively showing when the internet searches occurred in relation to Bauermeister’s death. That is, Stack suggests that the circumstantial evidence supports the presumption that a sudden quarrel occurred to the same extent that it supports the opposite conclusion and that we should resolve the matter in favor of the less onerous offense. However, as explained above, whether arguing that he did not kill Bauermeister or that he did so upon a sudden quarrel, Stack depends on an improper standard of review. Viewing the evidence in the light most favorable to the prosecution, as our standard of review requires, a rational trier of fact could have found beyond a reasonable doubt that Stack used his pellet gun, a deadly weapon other than a firearm, to kill  - 790 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. STACK Cite as 307 Neb. 773 Bauermeister intentionally, but without premeditation and not upon a sudden quarrel. The State presented circumstantial evidence that Stack, without premeditation, intentionally killed Bauermeister with his pellet gun. The record shows that over time, Stack had become irritated with Bauermeister and wanted to be alone. Bauermeister was found on November 16, 2017, in the resi- dence she and Stack shared, dead due to blunt force head trauma from multiple blows and multiple missile injuries, both consistent with a pellet gun Stack owned. Testing showed an extremely high probability that blood found on the pellet gun was Bauermeister’s and that touch DNA on the weapon belonged to Stack. In Bauermeister’s hand and on the floor nearby were strands of brown hair, like Stack’s. Stack was apprehended with Bauermeister’s cell phone, which had blood on it that was most likely Bauermeister’s. Testing of two spots among multiple bloodstains revealed an extremely high prob- ability that Bauermeister’s blood was on the pants and one of the shoes Stack was wearing when he was arrested. Stack’s computer reflected that from November 7 through 9, the days before Bauermeister’s estimated date of death, there were inter- net searches regarding whether a pellet gun could kill someone, among searches for suicide methods. In postarrest statements to his sister, Stack admitted to conducting internet searches related to suicide and what he could shoot with his pellet gun. On November 10, there was a search for “decomposition of a human body timeline,” followed by searches inquiring what items are provided in prison. In a conversation after his arrest, Stack did not contradict his brother’s suggestion that Stack had killed Bauermeister and confirmed that he was at the crime scene after her death. [6-8] Furthermore, upon our review of the record, we see no evidence of a sudden quarrel. A sudden quarrel is a legally recognized and sufficient provocation which causes a reason- able person to lose normal self-control. State v. Smith, 284 Neb. 636 , 822 N.W.2d 401 (2012). It is not the provocation alone that reduces the grade of the crime, but, rather, the  - 791 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. STACK Cite as 307 Neb. 773 sudden happening or occurrence of the provocation so as to render the mind incapable of reflection and obscure the rea- son so that the elements necessary to constitute murder are absent. Id. Although there was evidence that Stack was irri- tated with Bauermeister, in the absence of some provocation, a defendant’s anger with the victim is not sufficient to establish the requisite heat of passion. State v. Smith, 282 Neb. 720 , 806 N.W.2d 383 (2011). And the fact that Stack may have been intoxicated is not a proper consideration in determining whether the killing arose from a sudden quarrel. See State v. Smith, 284 Neb. 636 , 822 N.W.2d 401 (2012). Further, contrary to Stack’s suggestion, a sudden quarrel does not necessarily mean an exchange of angry words or an altercation contempo- raneous with an unlawful killing and does not require a physi- cal struggle or other combative corporal contact between the defendant and the victim. Id. In sum, under the proper standard of review, we conclude the evidence was sufficient to support Stack’s convictions. 2. Insanity Defense Any person prosecuted for an offense may plead that he or she is not responsible by reason of insanity at the time of the offense. Neb. Rev. Stat. § 29-2203 (1) (Reissue 2016). A suc- cessful insanity defense would be dispositive in Stack’s favor, regardless of the evidence that he killed Bauermeister with a deadly weapon. See State v. Bigelow, 303 Neb. 729 , 931 N.W.2d 842 (2019) (successful insanity defense operates as complete defense). Therefore, even though the evidence was sufficient to prove the elements of second degree murder and use of a deadly weapon other than a firearm to commit a fel- ony, we must address Stack’s claim that the district court erred by finding that he had failed to prove he was legally insane at the time he committed those offenses. [9] Generally, under Nebraska’s common-law definition, the insanity defense requires proof that (1) the defendant had a mental disease or defect at the time of the crime and (2) the defendant did not know or understand the nature and  - 792 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. STACK Cite as 307 Neb. 773 consequences of his or her actions or that he or she did not know the difference between right and wrong. Id. The defend­ ant carries the burden to prove the defense by a preponderance of the evidence. See § 29-2203(1). The verdict of the finder of fact on the issue of insanity will not be disturbed unless there is insufficient evidence to support such a finding. State v. France, 279 Neb. 49 , 776 N.W.2d 510 (2009). To support his insanity defense, Stack relies on the testimony of Davis, who opined that Stack had a mild neurocognitive dis- order and that as a result of such mental disease or defect in combination with his alcohol consumption, Stack experienced an alcoholic blackout, which caused him to be unable to know and understand the nature and consequences of his actions. However, as the State points out, under § 29-2203(4), “insanity does not include any temporary condition that was proximately caused by the voluntary ingestion . . . of intoxicating liquor.” Pursuant to this statute, the State argues, Stack was not legally insane under Davis’ opinion because it was based on Stack’s experiencing a blackout, a temporary condition caused by voluntary alcohol consumption. Stack contends that because voluntary intoxication was not the sole basis for Davis’ opinion that he was insane, Stack is not precluded from the benefit of the insanity defense. Although we have discussed the relation- ship between intoxication and insanity, we have not, since the adoption of § 29-2203(4), considered whether voluntary intoxication in combination with a mental disease or defect can be the basis for a successful insanity defense. See, State v. Bigelow, supra; State v. Hotz, 281 Neb. 260 , 795 N.W.2d 645 (2011). And based on the record in this case, we need not do so today. Here, even if the State’s argument concerning voluntary intoxication is set to the side, there was sufficient evidence that Stack did not fulfill a crucial element of legal insanity: a mental disease or defect. As mentioned, Stack’s expert, Davis, opined that Stack had a mental disease or defect in the form of a mild neurocognitive disorder. However, the State’s experts, Hartmann and Abel, disagreed. Their diagnostic  - 793 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. STACK Cite as 307 Neb. 773 testing showed that Stack did not suffer from a mild neuro- cognitive disorder. Thus, Davis’ opinion on the issue of legal insanity was in direct conflict with the evidence presented by the State, and it was the province of the district court to resolve that conflict. See State v. Martinez, 306 Neb. 516 , 946 N.W.2d 445 (2020) (appellate court does not resolve conflicts in evidence, pass on credibility of witnesses, or reweigh evi- dence; such matters are for finder of fact). Given the opinions of Hartmann and Abel, the record contained sufficient evidence for the district court to conclude that Stack was not legally insane at the time of Bauermeister’s murder. Stack’s assertion to the contrary lacks merit. 3. Excessive Sentences Lastly, Stack contends that his sentences were excessive. He does not and cannot dispute that he was sentenced within statutory limits. Instead, Stack argues that the sentences do not fit the crime or him as an offender. He points out that given his age, he will effectively have no opportunity for parole for crimes that he characterizes as not especially depraved and heinous. He also cites his limited criminal record and his poor health as mitigating factors. We are not persuaded. [10-12] Where a sentence imposed within the statutory limits is alleged on appeal to be excessive, the appellate court must determine whether a sentencing court abused its discretion in considering and applying the relevant factors as well as any applicable legal principles in determining the sentence to be imposed. State v. Price, 306 Neb. 38 , 944 N.W.2d 279 (2020). In determining a sentence to be imposed, relevant factors cus- tomarily considered and applied are the defendant’s (1) age, (2) mentality, (3) education and experience, (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. Id. The appropriateness of a sentence is necessarily a subjective judgment and includes the sentencing judge’s observation of the defendant’s demeanor  - 794 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. STACK Cite as 307 Neb. 773 and attitude and all the facts and circumstances ­surrounding the defendant’s life. Id. According to the record, the district court considered the familiar factors above, along with other information in the presentence investigation report and evidence received at the sentencing hearing. Thus, it took into account the factors Stack says justified a lesser penalty along with other factors. Those other factors included the particularly violent nature of Bauermeister’s murder and the circumstances surrounding it. Based on the record in this case and the relevant consid- erations, we conclude that the district court did not abuse its discretion in sentencing Stack. V. CONCLUSION Finding no merit to the errors assigned and argued by Stack, we affirm. Affirmed.

2020-12-04 06:08:02.965067+00

https://www.nebraska.gov/apps-courts-epub/public/viewOpinion?docId=N00007478PUB

Nebraska Supreme Court Online Library www.nebraska.gov/apps-courts-epub/ 12/04/2020 12:08 AM CST - 809 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. JONES Cite as 307 Neb. 809 State of Nebraska, appellee, v. Akeem R. Jones, appellant. ___ N.W.2d ___ Filed November 13, 2020. No. S-20-184. 1. Judgments: Appeal and Error. When reviewing questions of law, an appellate court resolves the questions independently of the lower court’s conclusions. 2. Negligence: Public Officers and Employees: Pleadings: Appeal and Error. The appropriate filing procedure when an appeal is lost due to official negligence is for the party seeking relief to file a motion in the lower court, seeking the ability to establish the basis for obtain- ing relief. 3. Presumptions. A letter properly addressed, stamped, and mailed raises a presumption that the letter reached the addressee in the usual course of the mails. 4. Public Officers and Employees: Presumptions. In the absence of evi- dence to the contrary, it may be presumed that public officers faithfully performed their official duties, and absent evidence showing misconduct or disregard of the law, the regularity of official acts is presumed. 5. Public Officers and Employees: Presumptions: Evidence. The pre- sumption that a public officer will faithfully perform his or her official duties can be overcome by the showing of evidence to the contrary. Appeal from the District Court for Douglas County: Leigh Ann Retelsdorf, Judge. Reversed and remanded. Akeem R. Jones, pro se. Douglas J. Peterson, Attorney General, and Siobhan E. Duffy for appellee. Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, and Papik, JJ.  - 810 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. JONES Cite as 307 Neb. 809 Miller-Lerman, J. NATURE OF CASE Akeem R. Jones was convicted in the district court for Douglas County of first degree murder and was sentenced to life imprisonment. State v. Jones, 296 Neb. 494 , 894 N.W.2d 303 (2017). After his direct appeal was unsuccessful, Jones’ subsequent postconviction petition was denied without an evi- dentiary hearing on February 5, 2018, and Jones attempted to appeal the postconviction ruling. He filed a notice of appeal on February 26; however, Jones’ request to proceed in forma pau- peris and the supporting poverty affidavit were not filed until March 23, thereby missing the March 7 deadline. Therefore, on July 6, we dismissed the appeal in case No. S-18-295 for lack of jurisdiction. Thereafter, Jones filed a verified motion to vacate or modify in the district court in which he sought reinstatement of his appeal. Jones claimed that in order to meet the March 7 appellate deadline, he gave his paperwork to the proper authorities to mail prior to March 7, but that the negligent acts of prison officials in the mailroom at the Nebraska State Penitentiary delayed the filing of his poverty affidavit. The district court denied the motion without a hear- ing. Jones appeals. We reverse, and remand for a hearing on Jones’ motion. STATEMENT OF FACTS This case arises from a motion filed by Jones in the dis- trict court seeking postconviction relief, which was denied on February 5, 2018, without an evidentiary hearing. Jones filed a notice of appeal on February 26, but his request to proceed in forma pauperis and his supporting poverty affidavit were not filed until March 23. On July 6, we dismissed the appeal in case No. S-18-295 for lack of jurisdiction because of failure to pay the required docketing fee within 30 days or failure to file a poverty affidavit to substitute for the required docketing fee. See Neb. Rev. Stat. § 25-1912 (Cum. Supp. 2018). On November 15, 2019, Jones filed a verified motion in which he sought an order vacating or modifying judgment, the  - 811 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. JONES Cite as 307 Neb. 809 purpose of which was to reinstate his appeal from the denial of his motion for postconviction relief. The denial of Jones’ motion to vacate or modify without a hearing is the subject of this appeal. In his motion, Jones alleged, inter alia: [Jones’] Poverty Affidavit was submitted via prison mail (according to rules and regulations established by the prison, handing mail to prison staff in one’s housing unit to transport to deliver to the prison mailroom staff for mailing) on or about March 2, 2018, to be received by the Clerk of District Court (Douglas County, Nebraska) before the 30-day timeline (March 7, 2018). However, [Jones’] said legal mail was erroneously returned to his housing unit, and placed on a desk of one of the unit staff member[s], and abandoned, without informing or notify- ing [Jones] in a timely fashion . . . . Additional allegations are quoted below in our analysis sec- tion. In conclusion, Jones alleged that the poverty affidavit was untimely filed in the appellate court “due to the lateness and negligence of prison officials.” With respect to relief, relying on our language in State v. Parnell, 301 Neb. 774 , 919 N.W.2d 900 (2018), Jones asserted that in such a case, he was entitled to “the ability to establish the basis for relief” through an order granting his motion or a hearing that “would permit and allow [Jones] to present said merits before the court.” Jones alleged that certain exhibits were attached. He stated that the exhibits “are imperatives and submitted herewith as bona fide proof, commensurating [Jones’] requested relief in the instant, and as a matter of law.” The memorandum from Melody Michaud, a case manager at the Nebraska State Penitentiary, was attached. The memorandum is unsworn. The memorandum states, in relevant part: On 3-16-2018/, I found an envelope on a desk that inmate Jones 84240 had previously turned in to mail on 3-7-2018. (A note from our mailroom was attached giving me this information.) The letter was returned for  - 812 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. JONES Cite as 307 Neb. 809 postage, but should have been given to Mr. Jones upon it’s [sic] arrival back to the housing unit. I notified Jones, who told me that this was a letter for the courts and had a due date, but now it was late. Jones had resubmitted the envelope for mail, but was returned to the unit on 3-20-2018 as no staff had signed off on approval for postage. On this occasion, the fault lies with me, I had neglected to sign off approval and the envelope came back to the housing unit again. Please take into consideration that the lateness of this mail was not the fault of Akeem Jones, but that of hous- ing unit staff. I apologize for any inconvenience that this may have caused. The district court denied Jones’ motion for reinstatement of his appeal. It appears the court ignored Jones’ sworn alle- gations of an earlier date. Instead, working on the incorrect assumption that appellate filings were due on March 2, 2018, and relying on the unsworn Michaud memorandum, the dis- trict court made certain findings. It found that Jones originally gave his request to proceed in forma pauperis and his poverty affidavit to the mailroom on March 7 and that because these documents were due on March 2, they were untimely delivered to the mailroom even before any subsequent acts of negligence by public officials. Jones appeals. ASSIGNMENT OF ERROR Jones assigns, restated, that the district court erred when it denied his motion to vacate or modify the judgment without a hearing. STANDARD OF REVIEW [1] When reviewing questions of law, an appellate court resolves the questions independently of the lower court’s con- clusions. State v. Parnell, supra. ANALYSIS In this appeal, Jones generally claims that the appeal from the denial of his motion for postconviction relief was lost  - 813 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. JONES Cite as 307 Neb. 809 due to official negligence and that his attempt to remedy the situation in the district court was wrongly denied. As explained below, we find merit in Jones’ assignment of error and reverse, and remand for a hearing. Jones filed a verified motion to vacate or modify the judg- ment. In his motion, Jones alleged that he submitted mail, including his request to proceed in forma pauperis and his poverty affidavit, “on or about March 2, 2018, to be received . . . before the 30-day timeline (March 7, 2018).” Jones further alleged that mail containing the poverty affida- vit was mislaid by prison staff, causing it to be filed after the deadline for his appeal. The unsworn memorandum prepared by the case manager, Michaud, was attached to Jones’ motion. The district court denied Jones’ motion without a hearing. The district court reasoned that the memorandum attached to Jones’ motion conclusively disproved Jones’ allegations. In particular, the district court found that Jones’ request to proceed in forma pauperis and his poverty affidavit were untimely submitted to the mailroom regardless of mishandling of the mail and subse- quent negligence of prison staff. [2] We have recently concluded that the appropriate filing procedure when an appeal is lost due to official negligence is for the party seeking relief to file a motion in the lower court, seeking the ability to establish the basis for obtaining relief. State v. Parnell, 301 Neb. 774 , 919 N.W.2d 900 (2018). This is the procedure Jones followed. [3-5] We have long held that a letter properly addressed, stamped, and mailed raises a presumption that the letter reached the addressee in the usual course of the mails. Id. In the absence of evidence to the contrary, it may be presumed that public officers faithfully performed their official duties, and absent evidence showing misconduct or disregard of the law, the regularity of official acts is presumed. Id. The pre- sumption that a public officer will faithfully perform his or her official duties can be overcome by the showing of evidence to the contrary. See id. In this case, Jones has made a show- ing under oath that mail consisting of his poverty affidavit to  - 814 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. JONES Cite as 307 Neb. 809 be delivered to the court in a timely manner for filing was handled in an irregular manner. As an initial matter, we note that the district court incorrectly calculated the final day to perfect an appeal as March 2, 2018, when the actual deadline was March 7. See § 25-1912. This error coupled with its reliance on the unsworn memorandum based on hearsay cast doubt on the district court’s reasoning. Relying on the memorandum attached to Jones’ motion, and contrary to Jones’ allegations, the district court found that Jones gave his mail containing the poverty affidavit to the mailroom on March 7, 2018, and thus found it was untimely upon arrival. We believe that the district court’s reliance on the memorandum as a basis to deny a hearing was misplaced, for several reasons. The memorandum from Michaud upon which the district court relied was not verified, was not based on her own knowledge, and was based entirely on the hearsay contained in a note prepared by an unknown author. Further, Michaud was not competent to assert of her own knowledge that Jones turned his mail in on March 7, 2018. With respect to the March 7 date, Michaud admits that “[a] note from our mailroom was attached giving me this information.” See Neb. Rev. Stat. § 27-801 (Supp. 2019) (providing that hearsay is “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted”). In contrast, Jones swore in a verified motion that he submit- ted the poverty affidavit via prison mail (according to rules and regulations estab- lished by the prison, handing mail to prison staff in one’s housing unit to transport or deliver to the prison mail- room staff for mailing) on or about March 2, 2018, to be received by the Clerk . . . before the 30-day timeline (March 7, 2018). (Emphasis supplied.) In paragraph 10 of the verified motion, Jones alleged that the acts of the officials “denied [Jones]  - 815 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. JONES Cite as 307 Neb. 809 appellate review for the denial of his postconviction motion, based upon a filing procedure and/or delay that was not [Jones’] fault and out of his hands to control.” (Emphasis sup- plied.) He further alleged in paragraph 9 that he was precluded from taking an appeal “by neglect, mistake, or an irregularity (official neglect or omission or state impediment) culpable on the part of Nebraska State Penitentiary’s prison staff official failure to submit [his] legal documents for mailing in a timely fashion for filing.” (Emphasis supplied.) And in paragraph 6, he alleged: [Jones] was effectively hindered and precluded from sub- mitting his said legal mail (with the Poverty Affidavit enclosed) through the prison mailroom, for reasons exud- ing culpability and negligence by prison staff, who failed to appropriately notify or inform [Jones] that the mail- room had returned said legal mail erroneously, to him, thereby denying [him] the opportunity to take rapid cor- rective measure(s) to re-send same said legal mail for fil- ing . . . (SEE Exhibit 1 and 5 attached herewith). (Emphasis supplied.) (Emphasis omitted.) As we read the motion in its entirety, Jones attached Michaud’s memorandum as support for his allegations that the “delay . . . was not [Jones’] fault,” officials failed to submit his documents “in a timely fashion for filing,” and he was denied “the opportunity to take rapid corrective measure(s).” The memorandum supports Jones’ numerous temporal allega- tions of a delay caused by negligent acts of officials, and we do not read his motion as adopting the memorandum’s unsub- stantiated date of March 7, 2018. The motion’s narrative to the effect that the exhibits are “imperatives” and “bona fide proof, commensurating [Jones’] requested relief” indicates, albeit colorfully, that Jones tendered the exhibits to support the thrust of his motion regarding official irregularity causing delay, rather than an endorsement of the March 7 date. The memorandum corroborates Jones’ claim that he submitted his mail containing the poverty affidavit to the prison mailroom  - 816 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. JONES Cite as 307 Neb. 809 on a date and in a proper manner and that it was delayed by subsequent official negligence. Given the layers of hear- say encompassed by the memorandum as attached, it is not appropriate to resolve the trustworthiness of statements therein about dates at this stage. See State v. Stricklin, 290 Neb. 542 , 861 N.W.2d 367 (2015) (stating that when out-of-court state- ment relates content of another out-of-court statement, there must be independent hearsay exception for each statement). The motion’s reference to the memorandum does not eclipse Jones’ numerous explicit allegations under oath that he sub- mitted his paperwork prior to the court deadline so as to reach the court in a timely manner. As in our recent case, State v. Parnell, 301 Neb. 774 , 919 N.W.2d 900 (2018), Jones’ claim of official negligence was sufficient to obtain a hearing at which to submit proof to the court of his allegation of official negligence. The district court erred when it denied the motion without holding a hearing at which Jones was able to offer proof of his allegations and attempt to carry his burden to rebut the presumption that public officers faithfully performed their official duties. CONCLUSION The district court erred when it denied Jones’ motion to vacate or modify the judgment without a hearing. We reiterate that we do not adopt a prison delivery rule, see State v. Smith, 286 Neb. 77 , 834 N.W.2d 799 (2013), and State v. Parmar, 255 Neb. 356 , 586 N.W.2d 279 (1998), nor do we hold that a delay in mailing necessarily results in an untimely filing. We reverse the decision of the district court and remand the cause for a hearing at which Jones may offer evidence that the neg- ligence of prison officials at the Nebraska State Penitentiary delayed the mailing of a poverty affidavit associated with his prior appeal. Reversed and remanded. Freudenberg, J., not participating.

2020-12-04 06:08:04.146653+00

https://www.nebraska.gov/apps-courts-epub/public/viewOpinion?docId=N00007475PUB

Nebraska Supreme Court Online Library www.nebraska.gov/apps-courts-epub/ 12/04/2020 12:08 AM CST - 762 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. COX Cite as 307 Neb. 762 State of Nebraska, appellee, v. Forrest R. Cox III, appellant. ___ N.W.2d ___ Filed November 13, 2020. No. S-19-780. 1. Constitutional Law: Search and Seizure: Motions to Suppress: Appeal and Error. In reviewing a trial court’s ruling on a motion to suppress based on a claimed violation of the Fourth Amendment or the safeguards established by the U.S. Supreme Court in Miranda v. Arizona, 384 U.S. 436 , 86 S. Ct. 1602 , 16 L. Ed. 2d 694 (1966), an appellate court applies a two-part standard of review. Regarding his- torical facts, an appellate court reviews the trial court’s findings for clear error. But whether those facts trigger or violate Fourth or Fifth Amendment protections is a question of law that an appellate court reviews independently of the trial court’s determination. 2. Constitutional Law: Search and Seizure: Evidence: Police Officers and Sheriffs. The exclusion of evidence obtained in violation of the Fourth Amendment is not itself a constitutional right; rather, it is a rem- edy designed to deter constitutional violations by law enforcement. 3. ____: ____: ____: ____. In situations where the exclusion of evidence as a remedy would not deter law enforcement, several exceptions to the exclusionary rule have been recognized. One of those exceptions applies to evidence obtained by police in objectively reasonable reliance on a statute later found to be unconstitutional. 4. Trial: Evidence: Motions to Suppress: Waiver: Appeal and Error. When a motion to suppress is overruled, the defendant must make a specific objection at trial to the offer of the evidence which was the sub- ject of the motion to suppress in order to preserve the issue for review on appeal. Put another way, a failure to object to evidence at trial, even though the evidence was the subject of a previous motion to suppress, waives the objection, and a party will not be heard to complain of the alleged error on appeal. 5. Verdicts: Appeal and Error. Harmless error review looks to the basis on which the trier of fact actually rested its verdict; the inquiry is not  - 763 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. COX Cite as 307 Neb. 762 whether in a trial that occurred without the error, a guilty verdict surely would have been rendered, but, rather, whether the actual guilty verdict rendered in the questioned trial was surely unattributable to the error. Appeal from the District Court for Douglas County: Kimberly Miller Pankonin, Judge. Affirmed. Thomas C. Riley, Douglas County Public Defender, and Natalie M. Andrews for appellant. Douglas J. Peterson, Attorney General, and Austin N. Relph for appellee. Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ. Heavican, C.J. INTRODUCTION Forrest R. Cox III was convicted of first degree murder, use of a deadly weapon to commit a felony, and possession of a deadly weapon by a prohibited person. At issue on appeal is whether the district court erred in admitting cell phone records for Cox’s phone and whether Cox invoked the right to counsel during questioning by law enforcement. We affirm. FACTUAL BACKGROUND Cox was charged in connection with a shooting at a conve- nience store in Omaha, Nebraska, on the evening of March 6, 2017. The victim of the shooting, Laron Rogers, died on March 22 as a result of injuries he sustained. Trial Testimony According to testimony and evidence presented at trial, an employee of the convenience store called emergency services upon learning of a shooting in the parking lot of the store. Rogers was lying on the ground. Rogers was initially stabilized and taken to a hospital, but he did not respond to questions about who had shot him.  - 764 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. COX Cite as 307 Neb. 762 Two different witnesses at the scene of the shooting testified that Rogers was leaning into a white vehicle without license plates, which vehicle was identified by both witnesses as a Chevy Impala. According to the witnesses, it appeared that Rogers was talking to the occupants of the vehicle. A gunshot was heard, and Rogers walked a few steps before collaps- ing. The witnesses both testified that the white Impala then drove off. Law enforcement later obtained surveillance video from the scene and confirmed that the suspect vehicle was a white Impala. During the course of the investigation, law enforcement vis- ited Rogers’ place of employment, a cell phone store, and spoke with the store manager. The manager showed law enforcement video clips that were taken earlier on the day of Rogers’ shooting. The video clips showed two men inside the store. According to the manager, coworkers had seen Rogers outside the store interacting with the men prior to the men entering the store. Law enforcement was able to identify Cox at the time the clips were viewed. Shortly thereafter, the other man was identi- fied as Rufus Dennis. The manager provided law enforcement with a piece of paper with “Bubba” and the phone number “. . . 6473” written on it. According to one of Rogers’ coworkers, the phone number on the piece of paper was the phone number provided by Cox as he sought assistance with his cell phone at the store. Other evi- dence at trial revealed that Cox’s nickname was “Bubba.” That same coworker also testified that Rogers left work at approximately 6 p.m. but stayed in the parking lot, sitting in his car with a friend. The friend was a manager at a different branch of the same cell phone company that employed Rogers. She had stopped by to pick up phones for her store and stayed to smoke marijuana and talk with Rogers in his car after he got off work. The friend testified that Rogers smoked and dealt marijuana. According to the friend, while she was in Rogers’ car, two men in a white Chevy Impala, with no license plates and  - 765 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. COX Cite as 307 Neb. 762 displaying in-transit stickers, parked at the store. One of the men—whom she identified at trial as Cox—stopped at Rogers’ car to talk to Rogers. The friend said that Cox wanted to buy some marijuana, but that Rogers did not have enough on hand. Rogers and Cox exchanged telephone numbers and agreed to be in touch later that day. Cox and the other man, unknown to the friend but later identified as Dennis, went into the store; the friend and Rogers left the store’s parking lot in their sepa- rate vehicles. During the course of the investigation, law enforcement determined that Rogers owed his drug supplier money. Both Rogers’ fellow employee and Rogers’ friend testified that Rogers had asked them for money, though both declined to give him any. After leaving work, Rogers went to the home he shared with his mother and father. He asked his father for money and received $200. In addition, bank records show that Rogers withdrew nearly $950 from his bank accounts on the day of the shooting. That money was not recovered. After identifying Cox and obtaining the paper with the phone number on it, law enforcement sought subscriber infor- mation for that number. A warrant was issued, and the cell phone records from January 1 to March 24, 2017, includ- ing cell site location information (CSLI), were provided to law enforcement. In addition, law enforcement had access to Rogers’ cell phone. According to the record, Rogers sent a text message to Cox at 6:37 p.m. the day of the shooting that said, “This Ronno.” Cell phone records show that there were several phone calls between Rogers and Cox on March 6, 2017, in the hour or so leading up to the shooting, but that there were no calls between the two within the approximately 2 months preceding the shooting. CSLI records further showed that Cox’s phone was in the area of the shooting at the time and that he was not in the area of his purported alibi. Evidence offered at trial also linked Cox to a white Chevy Impala. When questioned by law enforcement, Dennis admit- ted that he had access to a white Impala that was registered  - 766 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. COX Cite as 307 Neb. 762 in the name of his mother. Dennis led officers to the white Impala, which was parked near Cox’s brother’s residence. The car was impounded. The license plate screws on the car looked new, and there were what appeared to be glue marks from in-transit stickers in the window. Inside the car was a steering wheel cover and two remaining license plate screws in original packaging, along with a receipt from an auto parts store for the purchase of a steering wheel cover and license plate screws. Further investigation revealed video showing Cox purchasing those items. Law enforcement was unable to locate Cox until February 26, 2018. During his interview, Cox acknowledged that his phone number was the same number ending in 6473; that he knew Rogers; that he had met with Rogers on March 6, 2017, the day of shooting; and that he wanted to obtain marijuana. Cox denied shooting Rogers and said he was with a female friend during the evening of the shooting. That friend, who tes- tified that Rogers was her uncle, also testified that she did not recall seeing Cox on March 6 or 7 and that she did not see him until early April. In addition, as previously noted, Cox’s CSLI data suggested that he was not at this friend’s home on the day of the shooting. Procedural History Prior to trial, Cox filed motions to suppress his cell phone records and the statements he made to law enforcement in his February 26, 2018, interview. As to the statements, Cox argued that his rights under Miranda v. Arizona 1 were violated when he invoked his right to remain silent and officers continued to question him. As for the cell phone records, Cox argued that the warrant was obtained without probable cause as explained in Carpenter v. U.S. 2 1 Miranda v. Arizona, 384 U.S. 436 , 86 S. Ct. 1602 , 16 L. Ed. 2d 694 (1966). 2 Carpenter v. U.S., ___ U.S. ___, 138 S. Ct. 2206 , 201 L. Ed. 2d 507 (2018).  - 767 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. COX Cite as 307 Neb. 762 In its order, the district court denied the motion to suppress the statements. With respect to the cell phone records, the court noted that the State had conceded that “the search warrant, although obtained prior to Carpenter . . . , has not been rem- edied post-Carpenter. Accordingly, the State concedes this issue and Cox’s motion to suppress these records is granted.” However, while the motion to suppress the cell phone records was pending, the State filed a second affidavit seeking a war- rant for the cell phone records. The second affidavit included additional averments intended to cure the previous deficiency. A second warrant was then issued, and Cox filed another motion to suppress. The second motion was denied. At trial, in response to questioning about Cox’s cell phone records, counsel for Cox objected on the basis of the motion to suppress. That objection was denied. Counsel for Cox objected at the next opportunity, stating: “Judge, I would just ask that my same objection be noted for the record and a standing objection for any new matters with respect to . . . 6473.” The court granted counsel’s “request for a standing objection.” Counsel also objected to the admission of exhibit 162 on the basis of his motion to suppress. Exhibit 162 was a video of law enforcement’s first interview with Cox. In addition to showing that video, the detective who conducted the interview testified. Cox offered few objections to this testimony and made no objections on Miranda grounds. Prior to the case being submitted to the jury, the State aban- doned its theory that the murder was premeditated and pro- ceeded solely on a felony murder theory. Cox was found guilty on all counts and sentenced to life imprisonment for felony murder, 25 to 30 years’ imprisonment for use of a deadly weapon, and 40 to 45 years’ imprisonment for possession of a firearm by a prohibited person. ASSIGNMENTS OF ERROR Cox assigns, restated and consolidated, that the district court erred in (1) admitting cell phone records for Cox’s cell  - 768 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. COX Cite as 307 Neb. 762 phone in violation of Cox’s Fourth Amendment rights and (2) admitting statements made by Cox that were in violation of Cox’s Fifth Amendment rights as explained in Miranda. STANDARD OF REVIEW [1] In reviewing a trial court’s ruling on a motion to sup- press based on a claimed violation of the Fourth Amendment or the safeguards established by the U.S. Supreme Court in Miranda, an appellate court applies a two-part standard of review. Regarding historical facts, an appellate court reviews the trial court’s findings for clear error. But whether those facts trigger or violate Fourth or Fifth Amendment protections is a question of law that an appellate court reviews independently of the trial court’s determination. 3 ANALYSIS On appeal, Cox assigns that the district court erred in admit- ting his cell phone records and in admitting statements made after he invoked his right to remain silent during his February 26, 2018, interrogation. Admissibility of Cell Phone Records Cox assigns that the district court erred in denying his sec- ond motion to suppress his cell phone records, including his CSLI. Cox’s argument is rooted in the U.S. Supreme Court’s decision in Carpenter. 4 In Carpenter, the Court concluded that individuals had a reasonable expectation of privacy in their record of physical movements as captured by CSLI. Because of this expecta- tion of privacy, the Court concluded that a warrant was, in most cases, required before such records could be acquired. The conclusion reached in Carpenter effectively overruled this court’s earlier decision in State v. Jenkins, 5 in which 3 State v. Schriner, 303 Neb. 476 , 929 N.W.2d 514 (2019). 4 Carpenter v. U.S., supra note 2. 5 State v. Jenkins, 294 Neb. 684 , 884 N.W.2d 429 (2016).  - 769 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. COX Cite as 307 Neb. 762 we held that the acquisition of CSLI did not implicate the Fourth Amendment. Since Carpenter, this court has had the opportunity to address the applicability of the exclusionary rule and suppres- sion of evidence as a remedy for a Fourth Amendment viola- tion of the type at issue in this appeal. 6 In both State v. Brown 7 and State v. Jennings, 8 we declined to apply the exclusionary rule to CSLI obtained without a warrant supported by probable cause, explaining in each case that the rationale for the exclu- sionary rule would not be met on the facts presented. In both of these cases, officers relied upon the Stored Communications Act to support court orders seeking cell phone records, and specifically CSLI. At the time the court orders were sought and executed, the U.S. Supreme Court had not yet decided Carpenter. We concluded that officers in each case were fol- lowing the statute as written and that the statute in question was not clearly unconstitutional. [2,3] The exclusion of evidence obtained in violation of the Fourth Amendment is not itself a constitutional right. 9 Rather, it is a remedy designed to deter constitutional violations by law enforcement. 10 Thus, in situations where the exclusion as a remedy would not deter law enforcement, several excep- tions to the exclusionary rule have been recognized. 11 One of those exceptions applies to evidence obtained by police in objectively reasonable reliance on a statute later found to be unconstitutional. 12 6 State v. Jennings, 305 Neb. 809 , 942 N.W.2d 753 (2020); State v. Brown, 302 Neb. 53 , 921 N.W.2d 804 (2019). 7 State v. Brown, supra note 6 . 8 State v. Jennings, supra note 6 . 9 Id. 10 Id. 11 Id. 12 Id.  - 770 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. COX Cite as 307 Neb. 762 In this case, law enforcement sought a court order based upon a statute that was, many months later, determined to be unconstitutional. Similar to Brown and Jennings, law enforce- ment’s reliance on a court order issued under the Stored Communications Act, at a time when the act had not yet been found by the U.S. Supreme Court or by this court to implicate the Fourth Amendment, was not objectively unreasonable. We observe that the district court originally granted Cox’s motion to suppress below on the basis of the State’s conces- sion, but that the evidence was eventually admitted follow- ing the denial of a second motion to suppress. The district court reasoned that a subsequent warrant essentially cured any Fourth Amendment violation. Of course, this reasoning varies from the reasoning we employ today, and in particular, this court’s reasoning relies upon the good faith exception to the Fourth Amendment’s war- rant requirement. We have previously held that an appellate court may not, sua sponte, rely on the good faith exception to the warrant requirement. 13 We explained that the concern with an appellate court’s reaching the issue of good faith sua sponte is that a defendant must have sufficient opportunity to defend against the application of the exception. 14 But a review of the record shows that this scenario is not presented here. The State raised the issue of good faith in its brief on appeal. Cox also argues the issue in his brief on appeal. The district court did not err in admitting the CSLI evidence at trial. There is no merit to Cox’s first assignment of error. Admissibility of Statements Cox also assigns that the district court erred in denying his motion to suppress statements made to law enforcement after he invoked his right to remain silent. He argues, in turn, that the district court erred in admitting those statements. Because 13 State v. Tompkins, 272 Neb. 547 , 723 N.W.2d 344 (2006). 14 Id.  - 771 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. COX Cite as 307 Neb. 762 Cox failed to object to the investigating detective’s testimony about his statements, we find no error in the admission of these statements. At issue are statements made during law enforcement’s first interview of Cox on February 26, 2018. The State offered a video of that interview, exhibit 162, which was shown to the jury. The record shows, and the State acknowledges, that Cox objected to exhibit 162 on the basis of the earlier motion to suppress. But Cox did not seek a continuing objection, or object on the basis of Miranda, to any other testimony regard- ing the statements he made during the interview. Rather, the detective testified, without objection, that Cox agreed that he knew Rogers, that the 6473 number was his, and that he provided the name of his alibi. In addition, Cox told the detective that he was dropped off at his brother’s residence after seeing Rogers at the cell phone store and that he had been in a white Chevy Impala. Other evidence showed that the white Impala in this case, found near the brother’s residence, was later seized. [4] When a motion to suppress is overruled, the defendant must make a specific objection at trial to the offer of the evi- dence which was the subject of the motion to suppress in order to preserve the issue for review on appeal. 15 Put another way, a failure to object to evidence at trial, even though the evidence was the subject of a previous motion to suppress, waives the objection, and a party will not be heard to complain of the alleged error on appeal. 16 Because there was no objection to the statements made by Cox and testified to by the interviewing detective, Cox has waived any right to assert error. The video that was shown and objected to was cumulative to that testimony as well as to other evidence presented at trial. Namely, several witnesses at the cell phone store testified that Rogers spoke to Cox at the 15 State v. Piper, 289 Neb. 364 , 855 N.W.2d 1 (2014). 16 See State v. Montoya, 305 Neb. 581 , 941 N.W.2d 474 (2020).  - 772 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. COX Cite as 307 Neb. 762 store, both Cox’s and Rogers’ cell phone records supported contact between the two, and other evidence tied Cox to the white Chevy Impala. [5] Even if the proper objections had been made, however, we would still find no reversible error in the admission of the statements, because any error would have been harmless. Harmless error review looks to the basis on which the trier of fact actually rested its verdict; the inquiry is not whether in a trial that occurred without the error, a guilty verdict surely would have been rendered, but, rather, whether the actual guilty verdict rendered in the questioned trial was surely unat- tributable to the error. 17 During the challenged interview, Cox did not admit to the crime or even admit to being in the area at the time of the crime. When these statements are compared to the cell phone records of calls between Rogers and Cox, the CSLI, and the fact that Cox had control over a white Chevy Impala, which had been identified by multiple witnesses as being involved in the shooting, there was sufficient evidence unattributable to any error in offering the video and statements. There is no merit to Cox’s second assignment of error. CONCLUSION The decision of the district court is affirmed. Affirmed. 17 State v. Devers, 306 Neb. 429 , 945 N.W.2d 470 (2020).